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Resisting Deportation - The Post-Brexit Legal Landscape

In recent times, there have been many reports in the media about the possible implications of the outcome of the Brexit referendum and its potential impact on EEA nationals who are living in the UK. Uncertainty of the situation has caused many EEA nationals to scramble to make permanent residence applications before a potential “cut-off” date is announced. However, for those who may not yet have lived in the UK for long enough, or may have spent time in a UK prison, there is concern that they may be removable, potentially subject to deportation action, from the UK to their home countries, now that Article 50 has been triggered.

There are many uncertainties, including the rights of EEA nationals already present, and negotiations are about to take place between the Prime Minister, Theresa May, and the EU member states for a reciprocal agreement on the rights of free movement. The Cabinet Office on the 11th July 2016, indicated that EU nationals in the UK would continue to have the same rights as they held prior to the Brexit vote, by stating:

“When we do leave the EU, we fully expect that the legal status of EU nationals living in the UK, and that of UK nationals in EU member states, will be properly protected. The government recognises and values the important contribution made by EU and other non-UK citizens who work, study and live in the UK.”

Of course, there will be EEA nationals living in the UK who do not fit within the criteria described by the Cabinet office, either because they have not secured work, or because they have concern over whether they meet the very strict criteria for immigration applications the Home Office has put in place.

Deportation is a word that has been widely publicized in the media and is a word that strikes fear into the hearts of those who may be seen to fit the criteria to invoke such action, but it is important to understand that enforcement action (such as being detained, and given a flight back to a person’s country of origin, and particularly deportation) will not be possible in many of these EEA cases.

When deportation can take place – EEA cases

Deportation mostly becomes applicable, but is not limited to, cases of criminality where EEA nationals are concerned. Deportation action not only removes a person from the UK but prevents a person from re-entering the UK for a minimum period of ten years under the current Immigration Rules. This is very different to an administrative removal, which simply seeks to expel a person who is not exercising the rights that they set out to gain entry for, or has abused those rights. Administrative removal can result in a re-entry ban of up to five years, but, again, this does not apply in all cases.

The Immigration (European Economic Area) Regulations 2016 set out examples of why a deportation order might be made against an EEA national, at regulations 23 which states:

“(5) If the Secretary of State considers that the exclusion of the EEA national or the family member of an EEA national is justified on the grounds of public policy, public security or public health in accordance with regulation 27 the Secretary of State may make an order prohibiting that person from entering the United Kingdom.”

Therefore, if removal is not taking place for any of the reasons described, then it is potentially arguable that the action being taken is not lawful.

Legislative protection from deportation

One of the EEA Regulations describes what factors need to be taken into account when deciding EEA deportation cases. These are that:

  1. the decision must comply with the principle of proportionality;
  2. the decision must be based exclusively on the personal conduct of the person concerned;
  3. the personal conduct of the person must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account past conduct of the person and that the threat does not need to be imminent;
  4. matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
  5. a person’s previous criminal convictions do not in themselves justify the decision;
  6. the decision may be taken on preventative grounds, even in the absence of a previous criminal conviction, provided the grounds are specific to the person.

It is important to be aware that it is not enough by itself that a crime has taken place and, in fact, if it can be shown that a person has been rehabilitated sufficiently by the prison and probation regimes in the UK, so that their future risk of re-offending is low, then the decision to deport them will not be proportionate.

In addition to the considerations that need to be taken before a decision to deport can be made, there are several levels of protection based on length of residence, which are shown later in the same set of Regulations. They are:

 (a) If a person has accrued “permanent residence” (after 5 years of residence in the UK as a qualified person), then deportation action can only be taken on serious grounds of public policy and public security.

 (b) If a person has accrued ten years residence in the UK as a qualified person then deportation action can only be taken on imperative grounds of public security.

These are very high thresholds to meet and may mean that deportation action cannot be taken at all.

The current situation

It seems from reports that have been carried out by various charitable organisations (Bail for Immigration Detainees (BID)) that the above criteria are not being properly examined by the Home Office before decisions are made in respect of EEA nationals.

A report compiled by the joint select committee report entitled “The human rights implications of Brexit 16 Dec 2016” sensibly concluded that “It is not realistic to imagine that the UK Government would be in a position to deport the large numbers of EU nationals currently in the United Kingdom. Under Article 8 of the ECHR, individuals are entitled for respect to their private and family life and home.” Therefore, those EEA nationals, who can demonstrate that they have strong family ties to the UK, in the form of partners or children, will not realistically, be easily removable. Those EEA nationals too, who have been living in the UK for a number of years, and can show that the centre of their lives is located here in the UK, either by work, or property, or simple length of residence, may also have good grounds to appeal against any decision made to deport them.

Shockingly though, it has been reported that the number of EU nationals detained in immigration centres has increased fivefold since the Conservatives came to power. In 2015, the last full year for which Home Office data is available, 3,699 EU citizens were detained under immigration powers, making up 11.4 per cent of all detainees. An investigation showed that, in many cases, no crime had been committed, with people detained for reasons such as losing their ID card or having a birthday party in a park. The detention of EU citizens has continued to rise rapidly, with 1,227 detained in the third quarter of 2016, making up 17 per cent of the total number recorded in that period.

Publically, the government want to be seen to be nurturing and protecting of EEA nationals present in the UK from what was, for all involved, a shock outcome of the Brexit referendum. As The Guardian reported on 1 December 2016 “a Home Office spokesperson said: “The home secretary has been clear that she wants to protect the status of EU nationals already living here, and the only circumstances in which that wouldn’t be possible is if British citizens’ rights in European member states were not protected in return.” Amber Rudd sent a letter asking the House Of Lords not to vote against the government on their Brexit Bill in which she said that there was no question of treating European citizens with “anything other than the utmost respect.” Looking at the above statistics, it is hard to see how this could be the case.

In such times of political and legal uncertainty, and before any possible changes to the law and policy guidance, is important to take positive and affirmative action in cases concerning any EEA national at an early stage to prevent what could be devastating consequences.

Now that Article 50 has been triggered, the Home Office is very quiet regarding possible changes of policy, especially in light of the election result. Negotiations with the EU seem to be key to whether the Prime Minister will seek to protect the rights those EEA nationals already present in the UK or tighten what is already a tightly controlled immigration policy. It is difficult to see what this means in the future in terms of administrative removals, but deportation appeals are likely to remain very complex cases.

Anyone who receives notification of potential deportation proceedings should always seek assistance from a specialist immigration advisor. For those EEA nationals receiving such decisions, this is especially important, as many of these decisions are not in accordance with either the law or current published policy.

Our dedicated team of immigration lawyers have experienced in preventing such cases from proceeding to deportation and welcome enquiries from all EEA countries. Anyone requiring should assistance should not hesitate to contact us via email enquiries@paragonlaw.co.uk or telephone 0115 9644123.