Deportation under the new immigration rules

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
10 July 2012

At Danielle Cohen solicitors we focus on the relationship between the Immigration Rules which came into force on 9th July 2012 and domestic and European case law and Article 8 of the ECHR as they apply to cases involving deportations on the grounds that it is conducive to the public good. We are fighting against the deportation from the UK of our clients and advise them about the changes that were brought about by the Immigration Rules which came into force on 9th July. These Rules state that deportation will apply regardless of when the Notice of Intention to Deport or Deportation Order was made or served.

The new Rules applying to the assessment of Article 8 cases in the Deportation context are divided into two categories:

(a) Those sentenced to at least four years imprisonment, for whom the public interests in Deportation will normally outweigh Article 8 considerations, other than in exceptional circumstances, and
(b) Those whose Deportation is pursued either on the basis of a sentence of less than four years but more than 12 months or because their Deportation is conducive to the public good because the offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law.

Under this category, it is necessary to see whether either paragraph 399 or 399(a) apply. If they do not, Deportation will follow other than in exceptional circumstances.

Paragraph 399 deals with family life cases and applies where:

(a) She/He has a genuine and subsisting parental relationship with a child who is either British , or
(b) Has resided in the UK for at least seven years and it would not be reasonable to require the child to leave the UK and there is no other family member who is able to care for the child in the UK OR

Has a genuine and subsisting relationship with a partner who is:

(a) British
(b) Has ILR
(c) Has refugee status or humanitarian protection and (a) has lived in the UK with valid leave for at least 15 years (excluding any period of imprisonment) and there are insurmountable obstacles to family life continuing outside the UK.

Paragraph 399(a) deals with private life cases and applies where:

(a) She/He has resided in the UK for at least 20 years and has no social cultural or family ties with the country of return or
(b) He is under 25 and has resided in the UK for at least half of his life and has no social, cultural or family ties with the country of return.

It will be immediately obvious that this sets the barrier very high and that many cases which have succeeded in establishing that deportation would be disproportionate under Article 8 ECHR would not succeed in meeting the requirements of these paragraphs and could only succeed under the Immigration Rules in exceptional circumstances.

However, despite the attempt by the Secretary of State to limit the application or Article 8 to circumstances set out in the Immigration Rules, a trial of decisions of Upper Tribunal has established that the Rules are not exhaustive of the requirements of Article 8. When the Secretary of State threatened to deport our clients from the UK we will use these cases.

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