What is it?
When someone has been convicted of a criminal offence, they can potentially be deported back to their home country.
Who can be deported?
The defendant must be a foreign national aged 17+ (Immigration Act 1971 s 3(6))
When can someone be deported?
When a foreign national aged 17+ was convicted of an offence for which he or she received imprisonment, the judge could make a recommendation for deportation. There is now an automatic deportation procedure which removes the need for this in many cases.
Here we set out a general introduction to 1) a judge recommending that a foreign criminal be deported and 2) the automatic deportation procedure as a consequence of a conviction and sentence.
Recommendations: Making an order
The Judge must warn defence counsel about the intention to make an order, R v Carmona 2006 EWCA Crim 508.
The Judge must give reasons for making an order, R v Bozat and Others 1997 1 Cr App R (S) 270.
Guidance for making an order was set out in R v Nazari and Others 1980 71 Cr App R 87. This includes such principles as considering hardship on the defendant if an order were to be made, family considerations, oppression in the home country and whether the defendant’s continued presence in the UK is to its detriment.
Being a British citizen (Immigration Act 1971 s 3(8))
Being a Commonwealth or Irish citizen (Immigration Act 1971 s 7(1))
Being a Diplomat/member of a Diplomat’s family (Immigration Act 1971 s 8(2) and (3))
The fact that a person has applied for refugee status does not exempt him or her from deportation, R v Villa and Villa 1993 14 Cr App R (S) 34.
The court should consider more than just the conviction. It is necessary to justify the deportation by demonstrating that the defendant’s continued presence in the UK constitutes a genuine and sufficiently serious threat to the requirements of public policy or public security, R v Bouchereau 1978 66 Cr App R 202.
Courts an make a recommendation if the conditions of the Treaty are met, see 2004/38/EC.
A recommendation for deportation is not a part of the punishment of the defendant, R v Carmona 2006 EWCA Crim 508.
Reduction in sentence
A recommendation for deportation does not justify a reduction in sentence.
However, things have changed and the need to make a recommendation for deportation should now be rare. This is because of automatic deportation. (See R v Kluxen 2010 EWCA Crim 1081)
The Sec of State must make a deportation order in respect of a foreign criminal:
a) where that person is not a foreign criminal,
b) Who has been convicted in the UK of an offence, and
c) Who receives a sentence of at least 12 months (or the offence is a specified ‘serious criminal offence’, see Nationality, Immigration and Asylum Act 2002 s 72(4)(a))
The UK Borders Act 2007 s 38(1) states that a suspended sentence and consecutive sentences making 12 months + do not constitute a sentence of at least 12 months for the purposes of automatic deportation.
Where automatic deportation applies, there is no use served by making a recommendation for deportation, for obvious reasons.
It is not permitted for the court to rearrange a sentence in order to avoid the automatic deportation procedure, as it would be defeating the purposes of the legislation. (R v Turner 2010 EWCA Crim 2897)
Automatic deportation: EU citizens
The Sec of State’s policy is that no EU citizen should be deported unless the prison term is 2+ years, R v Kluxen 2010 EWCA Crim 1081.