Article prepared by Karen Rimmer
On the 31st December 2019, the House of Commons library published its briefing paper into the deportation of foreign national offenders. The report provides a useful overview of the law relating to deportation and how it has evolved over time. It ends with a paragraph which scrutinises and indeed highlights criticism over the Home Office processes relating to deportations. Specifically, comments on how the Home Affairs Committee has criticised the Home Office’s failure to progress deportations properly.
The process of deportation begins once a conviction is received, which attracts a custodial sentence. Where that sentence is over 12 months, for non-EEA nationals the foreign national offender (FNO) is notified that their conviction has triggered automatic deportation proceedings, known as a “one-stop notice”. For sentences of over two years in the case of EEA nationals they are notified that they have become liable to deportation, and, in both cases, they are asked to provide reasons why they should not be deported.
After a written reply is received to that letter, along with evidence of the reasons given, the Home Office then apparently goes on to investigate the claims made and thereafter consider whether the deportation process should proceed. The stark reality for the FNO is that they will likely not then hear any more about it until the last calendar month of their custodial sentence when a (usually negative) decision will be received, either with or without the right of appeal attached to it. It is very rare for the Home Office to ask a non-represented person for further information or explanation.
Immigration practitioners will usually be aware that, in many cases, that period of silence does not result in the investigative processes that are supposed to take place at all. Quite the opposite, and, at the end of this stage of the deportation process, negative decisions that are subsequently received will be full of copy and paste errors, covering everything from the wrong country of origin, to the names of children not associated to the case and not known to the FNO, which have been inserted into decisions. This happens in all areas of immigration law, not just in deportations. The Home Office uses standard template letters and it has been known that they have not even taken out the “type text here” field before sending out the decision to the FNO, contrary in some cases to the principles of anxious scrutiny.
It is also clear that the Home Office routinely does not properly consider the evidence sent with the written reply to the one-stop notices as decisions will make findings on a case without the consideration of evidence put before the decision-maker, that evidence directly contradicting the findings made.
The result of improper consideration of cases, is of course that those decisions subsequently become appealable and, in over half of the cases before the Immigration and Asylum Chamber of the First tier Tribunal, are successful. Such outcomes of course bear an impact on the government’s targets. However, it is important to take note of the fact that not all of those Appellants will have had access to a knowledgeable, fully trained and accredited legal advisor. Perhaps due to the changes to the way in which legal aid is administered, they could not afford access to justice. Those success figures could therefore have been much higher.
Deport First, Appeal Later
The “deport first, appeal later” regime is never far away from Home Office decision makers’ thoughts. However, since that practice was largely stopped by the decision of R (on the application of Kiarie) (Appellant) v Secretary of State for the Home Department (Respondent)  UKSC 42, it is replaced with the temptation of a “make a poor decision first, and justify it at an appeal later” mentality.
Major fallouts result from success government failure to monitor its ever-tightening vicelike grip on immigration, and particularly deportation, notwithstanding the consequences for ordinary people.
It is perfectly possible that, once the UK leaves the EU, without the regulatory impact the EU membership brings, further scandals on the scale of Windrush will follow. The foreseeable impact of Brexit is that it is always going to be open to the government to push through yet another Bill for changes to the Immigration Rules on a whim, which might reasonably include enhanced powers for deportation.
FNOs carry a particular type of marginalised political subjectivity. Prison punishes the behaviour, then immigration detention and deportation punishes presence and being.
Because of the political weight it carries, deportation of FNOs will always be top of the political agenda in an effort to vote-boost, and so ever higher target figures are publicised, with the decision-making process being undertaken swiftly to cope with demand. It is that haste that leads to poor decision making and the subsequent barriers to removal by way of immigration appeals.
Two Wrongs Do Not Make A Right
It is important to remind the Home Secretary that two wrongs do not make a right. Human rights are just that: human, and even those people who have committed crimes are still human. They still deserve to experience a basic level of human decency when dealing with their cases, in order to allow them to facilitate whatever changes are needed to live a good, law-abiding life in future.
If you, or a family member are
facing the prospect of deportation action, then it is important to act
promptly. Obtaining sound legal advice early, as soon as notice of liability to
deportation is received, can help to establish key legal arguments that might prevent
deportation action being taken at all.
 In practice, https://www.refworld.org/pdfid/478cc1a82.pdf ; https://www.bailii.org/ew/cases/EWCA/Civ/2019/673.html, para 181