The end of the grace period is near. From 1 July 2021, free movement will end, meaning UK citizens will no longer be able to move through the continent without restrictions, and EU citizens living in the UK will need to apply for status or become unlawful residents. With the passage of Home Secretary Priti Patel’s new immigration bill and the points-based immigration system, they will become subject to the same rules that have exposed non-EU nationals to discrimination, abuse and extortionate fees for years, ever since the hostile environment came into force.
EU citizens who fail to apply to the EU Settlement Scheme (EUSS) before the transition period ends have a six-month grace period, until 30 June 2021, in which they can still apply and resolve their status without becoming unlawfully resident. If they fail to do so, they will be cut off from a range of rights and entitlements, including homelessness assistance, welfare benefits and free NHS care. Worse yet, they could be liable for forced removal or deportation from the UK. What is the difference between the two?
Forced removal or administrative removal is when the Home office enforces an individual’s removal from the UK if that person does not have leave to remain. Section 10(1) of the Immigration and Asylum Act 1999 as amended by the Immigration Act 2014 states explicitly that a person who “requires leave to enter or remain in the United Kingdom but does not have it” may be removed from the UK. This can be because their application for leave has been refused, or their valid leave expired and they overstayed past the expiry date. Specific removal directions can only be set for an individual once they have no outstanding casework barriers, the person liable for removal is fit to fly, they have a valid travel document, and there are no other human rights interfering with the removal (for example, if there is a risk of family separation, that needs to be sorted out first.) Once an individual gets removal directions, they might be able to challenge it. Valid reasons to challenge removal include having a pending asylum claim, or a pending appeal. Certain types of judicial review may also form a barrier to removal. As mentioned before, an individual should also not be removed from the UK if it would breach the UK’s human rights obligations, whether under the European Convention of Human Rights (ECHR) or the Refugee Convention.
Deportation, on the other hand, is a different form of enforced removal, when removal is happening for the “public good.” This is set out in Part 13 of the Immigration Rules. Usually, deportation happens after an individual serves a criminal sentence in the UK. Under the current rules, if an individual is sentenced for more than 12 months in prison, their deportation is “conducive to the public good and in the public interest”. The Home Secretary must then make a deportation order against that individual. The rules also state that deportation is “conducive to the public good and in the public interest” if the offending “caused serious harm” as determined by the Home Office, or the offender is a “persistent offender who shows a particular disregard for the law”, irrespective of how long they were sentenced for. If an individual is liable for deportation, their immediate family (understood as spouses, civil partners or children) can also be liable for deportation unless they have Indefinite Leave to Remain, are British nationals, or have been living separately from the foreign offender.
If the Home Office makes a deportation order against an individual, they will be issued with notice of deportation arrangements. In order to challenge deportation, they will have to show that deportation would breach their rights under the Refugee Convention or the ECHR, in particular the right family and private life under Art. 8 of the ECHR. Generally, the balancing act between the offender’s human rights and the public good is in favour of deportation. The threshold of what the individual must prove in order to successfully challenge the deportation order against them goes up the longer their sentence is. As such, those who are convicted of a crime and sentenced to four or more years in prison (or more than one year and don’t fit within the exceptions) will need to show that there are “very compelling circumstances” in their case to outweigh the public interest in their removal. The standard to prove “very compelling circumstances” is extremely high. These rules apply to all foreign nationals in the UK.
For EEA nationals, Brexit adds a new dimension to the rules applicable to them. An EEA national with settled or pre-settled status can still be liable for deportation if they commit a criminal offence. However, the balancing act of their individual human rights against the public good will be influenced by when the crime was committed. As such, if the criminal offence was committed before the end of the transition period (i.e. before 31 December 2020), the Home Office will need to consider the pre-Brexit rules on EU nationals. This means the Home Office have to show that deportation is in the interests of “the public good, public health or public security”. The threshold for showing that deportation is in one or more of these interests was generally higher for EEA nationals than the “public good” arguments for deportation of non-EEA nationals. If the criminal offence was committed after 31 December 2021, the same deportation rules apply to EEA nationals as to third party nationals.
Removals and deportations are usually carried out either on a commercial airline or by private charter flights, though the latter have been the subject of some controversy. Individuals who are forcibly removed from the UK – whether by administrative removal or deportation – usually are banned from re-entering the country for ten years. After those ten years, a forcibly removed individual may re-enter the UK. A person who was deported, however, cannot re-enter the UK as long as the deportation order is in force against them, which may last beyond the ten-year period.
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