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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A year has gone by since the Stansted 15 were convicted of terrorism offences for blocking the take-off of an immigration removal charter flight at Stansted airport. Where are they now, what has happened since, and how has the law changed?
On 28 March 2017, a group of nine men and six women cut a hole in the perimeter fence of Stansted Airport, and used lock-on devices to secure themselves around a Titan Airways Boeing 767 chartered by the Home Office to remove 60 undocumented immigrants to Nigeria, Ghana and Sierra Leone.
Initially, the Stansted 15 were charged with aggravated trespass, but four months later these charges were upped to “endangering safety at aerodromes”, a serious terrorism-related charge which can lead to a life sentence. As a consequence, on 10 December 2018, the 15 were convicted under this rarely used anti-terrorism legislation and faced a potential sentence of life in prison.
The verdict was criticized by many human rights organisations, including Amnesty International, as it was seen as a blow to non-violent human rights activism. It was said that by charging peaceful public dissenters with such heavy crimes, the prosecution effectively threatened the future of peaceful protests as well as the legitimacy of public dissent in the UK.
The 15 were protesting Theresa May’s hostile environment policy, introduced in 2013. The idea behind that policy is that by making life for undocumented individuals difficult in the UK, they will leave the country or report to the relevant authorities, allowing the Home Office to curb and control immigration more effectively. Amongst other things, the hostile environment policy requires immigration checks to be carried out before anyone can open a new bank account, be issued with a driving licence, rent a flat, or access routine health treatment. The judgment against the 15 seemed to reflect the government’s hostile approach to immigration generally
One of the people who had a seat booked on the mass deportation flight which the Stansted 15 managed to stop, said:
“Migration and deportation targets suck humanity from a system whose currency is the lives of people who happen to be born outside the UK. Such is the determination to look “tough” on the issue that people are rounded up in the night and put on to brutal, secretive and barely legal charter flights. Most take off away from the public eye – 60 human beings shackled and violently restrained on each flight, with barely a thought about the life they are dragged away from, nor the one they face upon arrival.”
After months in detention and years facing the hostile environment, he won his appeal, which he was only able to attend thanks to his flight being cancelled. He has now regularised his status in the UK, enabling him to live with his partner and three young children.
The Stansted 15 were sentenced in February 2019. The sentencing judge accepted they were motivated by “genuine reasons,” and as a consequence, all 15 avoided immediate prison sentences, with three set to be given suspended sentences and 12 set to be given community service. A year after their conviction, it is worth reflecting upon the state of the laws they were protesting against, and the cause for which they were willing to take such serious risks.
Both Labour and the Liberal Democrats have vouched to end the hostile environment, stating that making landlords and banks perform immigration checks instead of investing in the immigration system is an inhumane and ineffective way of policing migration. Dianne Abbott, Labour MP for Hackney North and Stoke Newington, has argued that mass deportation on chartered planes is a brutal way of responding to the current immigration panic, as it allows people to be bundled out of the country when they have not yet exhausted all their avenues of appeal and without due process. This was no different on the aircraft which the Stansted 15 managed to stop: today, at least two of the 60 passengers who were to be forcibly deported that day live legally in the UK. At least nine other claims remain outstanding.
The Stansted 15 stated that although they consider saving these 11 people’s lives a partial victory, there is still a long way to go. In the meantime, they have appealed their conviction, and are waiting for it to be listed in the coming months, as they refuse to accept their guilty verdict. One of 15, Benjamin Stoke, states,
“We were charged with endangering life, but we took the actions at Stansted to try to protect life.”