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Deportation due to a criminal record

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Aim of this page

The aim of this page is to set out the process by which someone may be deported from the UK if convicted of a criminal offence, and what actions you can take to appeal a deportation decision.

This information is part of our section on coming to (and staying in) the UK.

Why is this important?

If you’re threatened with deportation, it’s important to have an understanding of the legality of any deportation order, whether it’s possible to appeal a deportation decision and what you would need to address in any representation to the courts.

Introduction

Deportation is a statutory power given to the Home Secretary. Under section 3(5) of the Immigration Act 1971, a person who is not a British citizen (referred to here as ‘a foreign national’) is liable to be deported from the UK if the Home Secretary deems it to be ‘conducive to the public good’.

If you’re made subject to a deportation order then you’ll be required to leave the UK. The order will authorise your detention until such a time as you are deported. It will also prohibit you from re-entering the country for as long as it is in force and will invalidate any leave to enter or remain in the UK given to you before the order was made.

Automatic deportation due to a criminal record

The UK Borders Act 2007 (s32) allows for the automatic deportation of ‘foreign criminals’.

(1) A ‘foreign criminal’ is defined in the Act as a person:

who is not a British citizen
who is convicted* in the United Kingdom of an offence, and
to whom Condition 1 and 2 below applies

(2) Condition 1 is that the person is sentenced to a period of imprisonment of 12 months or more.

(3) Condition 2 is that:

The offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c.41) (serious criminal), and
The person is sentenced to a period of imprisonment.

*’Convicted’ does not include somebody deemed not guilty of an offence by reason of insanity and who are then made the subject of an order under section 5 of the Criminal Procedure (Insanity) Act 1964.

What is meant by “a period of imprisonment”?

The period of imprisonment referred to in Condition 1 applies to:

The sentence imposed by the court rather than the period of time actually served in prison
Those sentenced to imprisonment or detention for an indeterminate period of time
Those sentenced to at least 12 months detention in an institution other than a prison (for example a hospital or young offenders institution.

It does not apply to:

Anybody who has received a suspended sentence
Consecutive sentences amounting to more than 12 months
Imprisonment due to the default of payment of compensation or a fine.

What is meant by “a serious crime”?

We’ve listed below some of the more common offences that would be considered “a serious crime”. A full list can be found under the Nationality, Immigration and Asylum Act 2002:

Section 29(1)(a) (maliciously wounding or causing grievous bodily harm so as to constitute an offence under section 20 of the Offences Against the Person Act 1861 that is racially or religiously aggravated).
Section 29(1)(b) (causing actual bodily harm so as to constitute an offence under section 47 of the Offences Against the Person Act 1861 that is racially or religiously aggravated).
Section 29(1)(c) (committing a common assault that is racially or religiously aggravated).
Section 31(1)(a) (committing an offence under section 4(1) of the Public Order Act 1986 that is racially or religiously aggravated).
Section 31(1)(b) (committing an offence under section 4A(1) of the Public Order Act 1986 that is racially or religiously aggravated).

Section 1(1) (intending to commit an offence and doing an act that is more than merely preparatory to the commission of that offence, provided that the offence in question is described in Schedule 1 to this Order or this Schedule).

Section 1(1) (destroying or damaging, without lawful excuse, another’s property intending to destroy or damage it or being reckless as to that).
Section 1(2) (destroying or damaging, without lawful excuse, property, intending, or being reckless as to whether, that destruction or damage would result and intending that damage or destruction to endanger the life of another or being reckless as to that).
Section 2 (threatening, without lawful excuse, to destroy or damage property, knowing that such a threat is likely to endanger another’s life).
Section 3(a) (having in custody or under control anything intending, without lawful excuse, to use, or permit use of, it to destroy or damage another’s property).
Section 3(b) (having in custody or under control anything, intending without lawful excuse, to use, or permit use of, it to destroy or damage property knowing that such an act is likely to endanger another’s life).

Section 1 (agreeing to pursue a course of conduct which, if carried out as intended, necessarily amounts to the commission of an offence or would do so but for the fact that such commission is impossible, provided that the offence in question is an offence described in Schedule 1 to this Order or this Schedule).
Section 51(1) (placing or dispatching an article, intending to induce a belief that it will explode or ignite and cause personal injury or property damage).
Section 51(2) (communicating information, knowing or believing it to be false intending to induce a belief that a bomb or other thing is liable to explode in a place).

Section 134(1) (intentionally inflicting severe pain or suffering on another, where the offender is a public official or person acting in an official capacity who does such acts in performance, or purported performance, of his official duties).
Section 134(2) (intentionally inflicting severe pain or suffering on another at the instigation, consent or acquiescence of a public official, or person acting in an official capacity who at the time of such investigation, consent or acquiescence is acting in performance, or purported performance, of his official duties).

Section 4(3)(a) (supplying or offering to supply a controlled drug, where the offence in question is in respect of a Class A drug or Class B drug controlled by the Misuse of Drugs Act 1971).
Section 4(3)(b) (being concerned in the supply of a controlled drug, where the offence in question is in respect of a Class A drug or Class B drug controlled by the Misuse of Drugs Act 1971).
Section 4(3)(c) (being concerned in the making of an offer to supply a controlled drug, where the offence in question is in respect of a Class A drug or Class B drug controlled by the Misuse of Drugs Act 1971).
Section 5(3) (possessing a controlled drug intending to supply it to another, where the offence in question is in respect of a Class A drug or Class B drug controlled by the Misuse of Drugs Act 1971).
Section 8(a) (occupying or managing premises where the production or attempted production of a controlled drug is knowingly permitted on those premises).
Section 8(b) (occupying or managing premises where the supply, or attempted supply, of or the offer to supply a controlled drug is knowingly permitted on those premises).
Section 9(a) (smoking or otherwise using opium).
Section 9(b) (frequenting a place used for opium smoking).
Section 9(c)(i) (possessing pipes or utensils for use in connection with opium smoking which have been used, permitted or intended for use, for that purpose).
Section 9(c)(ii) (possessing utensils for use in connection with preparing opium for smoking which have been used, permitted or intended for use for that purpose).
Section 20 (assisting or inducing, while in the United Kingdom, the commission of an offence under corresponding law outside the United Kingdom).

Section 327(1)(a) (concealing criminal property).
Section 327(1)(b) (disguising criminal property).
Section 327(1)(c) (converting criminal property).
Section 327(1)(d) (transferring criminal property).
Section 327(1)(e) (removing criminal property from England and Wales, Scotland or Northern Ireland).
Section 328(1) (entering into, or becoming concerned in, an arrangement, knowingly or suspecting that it will facilitate the acquisition, retention, use or control of criminal property).
Section 329(1)(a) (acquiring criminal property).
Section 329(1)(b) (using criminal property).
Section 329(1)(c) (possessing criminal property).
Section 332(1) (failing, as a nominated person, to disclose known or suspected money laundering as soon as reasonably practicable, after the information on which that knowledge or suspicion is based is obtained in consequence of a disclosure under section 337 or 338 of the Proceeds of Crime Act 2002).
Section 333 (disclosing information likely to prejudice any investigation that might be conducted following the disclosure of information by a nominated person under section 337 or 338 of the Proceeds of Crime Act 2002).

Section 1(1) (being in a gang of 12 or more people who use, or threaten, unlawful violence for a common purpose so as to cause a person of reasonable firmness present at the scene to fear for his safety).
Section 2(1) (being in a gang of 3 or more people who use, or threaten, unlawful violence for a common purpose so as to cause a person of reasonable firmness present at the scene to fear for his safety).
Section 3(1) (using, or threatening, unlawful violence so as to cause a person of reasonable firmness present at the scene to fear for his safety).

Section 1(1) (dishonestly appropriating another’s property, intending to permanently deprive him of it).
Section 8(1) (stealing, and before or at the time of doing so, using force or putting another in fear of being there and then subjected to force).
Section 9(1)(a) (entering a building as a trespasser, intending to steal, inflict or attempt to inflict grievous bodily harm or rape).
Section 9(1)(b) (having entered a building as a trespasser, stealing or attempting to steal or inflicting or attempting to inflict grievous bodily harm).
Section 10(1) (committing burglary with a firearm, imitation firearm, weapon of offence or explosive).
Section 12A (aggravated taking of a vehicle).

Section 1(1) (intentionally penetrating the vagina, anus or mouth of another with a penis, where the victim does not consent and the offender does not reasonably believe that there is consent).
Section 2(1) (intentionally sexually penetrating the vagina or anus of another with a part of the body or anything else, where the victim does not consent and the offender does not reasonably believe that there is consent).
Section 3(1) (intentionally sexually touching another, where the victim does not consent and the offender does not reasonably believe that there is consent).
Section 4(1) (intentionally causing another to engage in sexual activity, where the victim does not consent and the offender does not reasonably believe that there is consent).
Section 5(1) (intentionally sexually penetrating the vagina, anus or mouth of another with a penis, where the victim is under 13).
Section 6(1) (intentionally sexually penetrating the vagina or anus of another who is under 13 with a part of the body or anything else).
Section 7(1) (intentionally sexually touching a person who is under 13).
Section 8(1) (intentionally causing or inciting another who is under 13 to engage in sexual activity).
Section 9(1) (intentionally sexually touching another who is 13 or under, or is 16 or under and the offender, who is 18 or over, does not believe that the victim is 16 or over).
Section 10(1) (intentionally causing or inciting another to engage in sexual activity, where the victim is 13 or under, or is 16 or under and the offender, who is 18 or over, does not believe that the victim is 16 or over).
Section 11(1) (intentionally engaging, for the purpose of sexual gratification, in sexual activity in a place where another is present or can observe and the offender, who is 18 or over, knows, believes or intends the victim to be there and the victim is 13 or under, or is under 16 and the offender does not reasonably believe that the victim is 16 or over).
Section 12(1) (intentionally causing, for the purpose of sexual gratification, another to watch or look at an image of a third person engaging in sexual activity, where the victim is 13 or under, or is under 16 and the offender does not reasonably believe that the victim is 16 or over).
Section 13(1) (committing an offence under section 9 to 12 of the Sexual Offences Act 2003 which would be an offence if the offender was 18).
Section 14(1) (intentionally arranging or facilitating something in any part of the world that, if done, would involve the commission of any offence under sections 9 to 13 of the Sexual Offences Act 2003).
Section 25 (intentionally sexually touching a family member, where the offender could reasonably be expected to know that the victim is a family member, and the victim is 13, or is under 18 and the offender does not reasonably believe that the victim is 18 or over).
Section 26 (intentionally inciting a family member to touch or allow himself to be touched sexually where the offender could reasonably be expected to know that the victim is a family member, and the victim is 13 or under, or is under 18 and the offender does not reasonably believe that the victim is 18 or over).
Section 30(1) (intentionally sexually touching another where the victim is unable to refuse by reason of a mental disorder and the offender could reasonably be expected to know that the victim has a mental disorder that is likely to render him unable to refuse).
Section 31(1) (intentionally inciting another to engage in sexual activity where the victim is unable to refuse by reason of a mental disorder and the offender could reasonably be expected to know that the victim has a mental disorder that is likely to render him unable to refuse).
Section 32(1) (intentionally engaging in sexual activity for sexual gratification in a place where a person who is unable to refuse by reason of a mental disorder observes it or the offender knows, believes or intends the victim to observe it and the offender knows or could reasonably be expected to know that the victim has a mental disorder that is likely to render him unable to refuse).
Section 33(1) (intentionally causing, for sexual gratification, another to watch, or look at an image of, a third person engaging in sexual activity, where the victim is unable to refuse by reason of mental disorder and the offender knows or could reasonably be expected to know that the victim has a mental disorder that is likely to render him unable to refuse).
Section 34(1) (intentionally sexually touching another with a mental disorder, where the victim agrees and such agreement is obtained by inducement, threat or deception and the offender knows, or could reasonably be expected to know, about that mental disorder).
Section 35(1) (intentionally causing another with a mental disorder, by inducement, threat or deception, to engage in sexual activity and the victim has a mental disorder which the offender knows, or could reasonably be expected to know, about).
Section 36(1) (intentionally engaging in sexual activity, for the purpose of sexual gratification, in a place where another with a mental disorder is present or observes it, or the offender knows, believes or intends the victim to observe it, because of inducement, threat or deception and the offender knows, or could reasonably be expected to know, that the victim has a mental disorder).
Section 37(1) (intentionally causing another with a mental disorder, by inducement, threat or deception, to watch or look, for the purposes of sexual gratification, at an image of a third person engaging in sexual activity, and the offender knows, or could reasonably be expected to know, that the victim has a mental disorder).
Section 38(1) (intentionally sexually touching another with a mental disorder which the offender knows, or could reasonably be expected to know, about where the offender is involved in the victim’s care).
Section 39(1) (intentionally causing or inciting another with a mental disorder to engage in sexual activity, where the offender knows or could reasonably be expected to know that the victim has a mental disorder and the offender is involved in the victim’s care).
Section 61(1) (intentionally administering a substance to another knowing that the victim does not consent, with the intention of stupefying or overpowering the victim so that sexual activity can be engaged in with the victim).
Section 62(1) (committing an offence intending to commit a sexual offence under Part 1 of the Sexual Offences Act 2003).
Section 63(1) (trespassing on premises, knowing that, or being reckless as to whether, trespass is taking place and intending to commit a sexual offence under Part 1 of the Sexual Offences Act 2003).

Are there any exceptions to automatic deportation?

Where condition 1 and 2 is met, a deportation order will always be made by the Home Secretary unless certain exceptions apply. These include:

Where the removal of an individual would breach their rights under the European Convention on Human Rights or the UK’s obligations under the Refugee Convention.
Where the Home Secretary believes that the individual was under the age of 18 on the date of conviction.
Where the individual is subject to extradition proceedings.
Where a hospital order, guardianship order, hospital direction or transfer direction under the Mental Health Act 1983 has effect.
Where the Home Secretary thinks that removal would contravene the UK’s obligations under the Council of Europe Convention or Action against Trafficking in Human Beings.

Non automatic deportation of foreign nationals

If a foreign national does not meet the automatic deportation threshold, consideration will be given as to whether deportation should be pursued under the Immigration Act 1971 because it would be conducive to the public good.

One of the following criteria would need to be met before a deportation order could be made:

A recommendation for deportation by a court empowered to do so;
The individual has received a custodial sentence of any length for a serious drug offence or gun crime;
The individual has committed a crime and received a custodial sentence of 12 months or more, made up of aggregate or consecutive sentences;
The individual is deemed to be a persistent offender;
The individual has been sentenced to less than 12 months imprisonment but the Secretary of State considers that the offence has caused serious harm either in the UK or in another country.

Decision makers will also take into account:

Cautions – Police cautions can be taken into account when considering whether deportation is conducive to the public good.
Previous convictions – All previous convictions can be considered.
Serious harm offences – The Secretary of State has the discretion to consider whether an offence has caused serious harm. Such an offence may have resulted in a sentence of less than 12 months but may still be grounds on which to pursue deportation.

Deportation of EEA nationals

The deportation of European Economic Area (EEA) nationals is currently restricted by European law.

The ‘Free Movement Directive’ sets out the circumstances in which an EEA national may be expelled but does not specify any particular sentence thresholds that would apply. It requires that deportation must be proportionate and based exclusively on the personal conduct of the individual concerned and the ‘level of threat’ that they pose to public policy or public security. Further information can be found on our EU nationals coming to and staying in the UK page.

An individual cannot be deported solely on the grounds of their previous criminal convictions and further grounds would need to be given in order to justify the deportation of an EEA national who has resided in a Member State for over five or ten years.

This may be subject to change when Britain leaves the EU in 2019.

Deportation under the Early Removal Scheme (ERS)

The Early Removal Scheme (ERS) is a scheme operated by the Ministry of Justice which allows the Secretary of State to remove prisoners who are liable for deportation early (i.e. before they reach their normal release date). This is not a voluntary arrangement and all determinate sentenced foreign national prisoners who have been confirmed as liable for removal, irrespective of sentence length, offence type or country or original, will be considered under this scheme.

The prison governor is responsible for authorising or refusing early removal and generally there are very few reasons why a governor would refuse (for example if an individual had outstanding criminal charges in the UK).

If you’re removed early under the ERS, there is no requirement for you to serve the remaining period of your sentence in custody in the country you’ve been removed to.

How long does a deportation order last for?

When somebody has been deported after being convicted and sentenced to a period of imprisonment of less than four years, the Home Office states that an application for leave to enter the UK will only be considered ten years after the date the order was made.

In the case of an individual who has been convicted and sentenced to a period of imprisonment of at least four years, it is considered that the deportation order will remain in place indefinitely.

The decision to make a deportation order

If it’s decided that deportation is appropriate then a deportation order will be served, setting out why your presence in non-conducive to the public good. The notice will contain details of all the information held by the Home Office on your circumstances at the time the decision was made.

The decision will state that you can, if you wish, make representation within 20 working days as to why you shouldn’t be deported.

Appealing a deportation decision

A deportation order cannot be made if deportation would be contrary to the UK’s obligations under the UN Refugee Convention or the European Convention on Human Rights.

When hearing an appeal against a deportation order following a conviction, tribunals and courts must have regard to the considerations listed in section 117c of the Nationality, Immigration and Asylum Act 2002.

The first issue to be addressed relates to public interest. Namely:

The deportation of a foreign national is in the public interest
The more serious the offence committed by a foreign national, the greater is the public interest in deporting them.

If you have been sentenced to less than four years, then section 117 states that public interest requires deportation unless you can demonstrate that one of two exceptions applies.

Exception 1

You have been lawfully resident in the UK for most of your life
You are socially and culturally integrated in the UK, and
There would be very significant obstacles to your integration into the country to which it is proposed that you are deported.

Exception 2

You have a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting relationship with a qualifying child and the effect of your deportation on the partner or child would be unduly harsh.

If you’ve been sentenced to a period of imprisonment of at least four years, then section 117 states that public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

What would constitute ‘compelling circumstances’?

The Supreme Court has suggested that there are a number of factors which would constitute compelling circumstances. These include:

How integrated into UK society the individual is in terms of family, employment etc;
The quality of the individual’s relationship with any child, partner or other family member in the UK;
The extent to which any relationship with family members might reasonably be sustained after deportation, for example by having family members move overseas;
The impact of deportation on the need to safeguard and promote the welfare of any child in the UK;
The likely strength of the obstacles to an individual’s integration into society in the country of nationality;
Any significant risk of an individual re-offending in the UK.

The Court of Appeal has recently upheld the appeal against deportation of a man sentenced to five years imprisonment (Secretary of State for the Home Department v JG (Jamaica) [2019] EWCA Civ 982).

It is one of the few deportation appeal cases, where a deportee convicted of a serious offence successfully resisted deportation, not merely because he had a British child residing in the UK but because of the impact his deportation would have upon the child. Read Iain Halliday’s article A concrete example of how to meet the “very compelling circumstances” deportation test.

‘Deport first, appeal later’

Following an amendment to the Nationality, Immigration and Asylum Act 2002 in 2014, a new section was included which provided the Home Secretary with the power to remove an individual from the UK pending their deportation appeal. This meant that appeals could only be pursued after deportation.

However in 2017, the Supreme Court found the practice unlawful [R (on the application of Kiarie) v Secretary of State for the Home Department [2017] UKSC], meaning that the Home Office can no longer rely on the ‘deport first, appeal later’ provision. Any appeal against a decision affecting a person’s family and private life can only now be brought from within the UK.

Revoking a deportation order

All the time a deportation order remains in force, you will be unable to return to the UK. You can apply for the order to be revoked but whether or not this will happen depends on the circumstances of the case.

Immigration rules state that an application for the revocation of a deportation order will be considered based on:

The grounds on which the order was made;
Any representations made in support of the revocation;
The interests of the community, including the maintenance of an effective immigration control;
The interests of the applicant, including any compassionate circumstances.

Making representation

If you make no representation then a decision to deport you will be based on the information the Home Office have available.

If you take the opportunity to make representation as to why you should not be deported, these will be fully considered. The burden of proof is on you to show why the impact of deportation would breach the Refugee Convention or your human rights, you will need to provide evidence of this impact. Less weight will be given to any representations which cannot be substantiated.

Useful links

Below you will find links to useful websites relating to this page. More specific details (including addresses and telephone numbers) of some of the organisations listed below can be found here.

Home Office – A Government department responsible for immigration, security and law and order
freemovement – What does “unduly harsh” mean in deportation cases?

More information

For practical information – More information can be found on our section on housing and living in the UK
Questions – If you have any questions about this, you can contact our helpline.

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COLIN Alfred MCDONALD says:
12th January 2024 at 1:10 pm
A really concise and helpful setting out of the facts involved in the deportation process. Thank you
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Deportation due to a criminal record

Click here for the index of this page

Aim of this page

Why is this important?

Introduction

Automatic deportation due to a criminal record

What is meant by “a period of imprisonment”?

What is meant by “a serious crime”?

Crime and Disorder Act 1998

Criminal Attempts Act 1981

Criminal Damage Act 1971

Criminal Law Act 1977

Criminal Justice Act 1988

Misuse of Drugs Act 1971

Proceeds of Crime Act 2002

Public Order Act 1986

Theft Act 1968

Sexual Offences Act 2003