Powers of arrest
Police constables and immigration officers have the power to arrest, without warrant, anyone who has or whom they suspect has committed an immigration offence. The Asylum and Immigration Act 1996 increases the number of immigration offences, the powers of search and arrest in relation and the penalties for immigration offences while the Immigration and Asylum Act 1999 has increased the powers of arrest, search and finger printing.
It is a criminal offence not to give information to an immigration officer, or to give false information or documents. There is effectively no right of silence as the responsibility is on the individual to show that he or she qualifies for the status being claimed under the law. The very wide power under the immigration laws allows for the investigation and detention of suspects under these administrative provisions who do not benefit from the same level of rights as others. This leads to frequent questioning of black people about their immigration status when they come into contact with the police for any other reason, often when there is no other cause for suspicion.
The Codes of Practice under the Police and Criminal Evidence Act 1984 do not apply to immigration officers, although they have agreed to follow them voluntarily.
Those who knowingly remain longer than they have been allowed by the immigration officers or the Home Office without asking permission become ‘overstayers’ and commit a criminal offence. It makes no difference whether they have overstayed for many years or for a few days. They can be arrested and appear before a Magistrates’ Court, which can impose a fine, a sentence of imprisonment or recommend that the person be deported.
Those who are not British citizens, or Commonwealth citizens with the right of abode, or Commonwealth or Irish citizens who settled here before 1 January 1973 and who have lived here ever since, can be recommended for deportation by a court if convicted of any crime for which the penalty could be imprisonment, even if they have previously been allowed to stay in Britain permanently. Special conditions apply where the individual recommended for deportation is an EEA national or the family member of such a national. There is a right of appeal against this as part of the sentence. The recommendation is not binding and it is up to the Home Office whether to carry out the recommendation. Unless the court specifically directs release from detention, the individual will be detained while the Home Office makes its decision.
Administrative removal
The Home Office can instigate the removal of people subject to immigration control for: entering illegally, overstaying, for breaking other conditions of stay, or for obtaining leave to enter by deception. There is no discrete, merits based right of appeal on this basis unless human rights issues are raised in the course of the initial application.
Voluntary departure
There are also provisions for fares to be paid for people settled here who want to return to their countries of origin if it is ‘in that person’s interest to leave the UK ’. People receiving in-patient treatment in mental hospitals may be sent back, under Section 90 of the Mental Health Act 1983, to receive treatment in their country of origin, again if it is ‘in the interests of the patient to remove him’. No definition of this is given and there are no legal safeguards against these powers.
Deportation
The Home Office can also decide to deport someone on the grounds that his or her presence is ‘not conducive to the public good’. This is a very vague term that can include people who have been convicted of a criminal offence but whom the court did not recommend for deportation, or people who are alleged to have made a marriage of convenience. There is a right to an immigration appeal, but if the Home Secretary decides that your presence is non-conducive on the grounds of national security, that appeal is to the Special Immigration Appeals Commission (SIAC) rather than to the adjudicator and the Immigration Appeal Tribunal (IAT).
Once any appeal has been exhausted, the Home Secretary can sign a deportation order and the individual can be sent out of the country. While the order is in force, they cannot return here. They can apply for the order to be revoked, either to the UK Embassy or High Commission in their own country or to the Home Office, but the order is not normally revoked until it has been in force for at least three years. If the order is revoked, the applicant is not entitled to return, but only to apply to return if they can satisfy the immigration rules.
Persons can be treated as illegal entrants either because they entered the country without being questioned by immigration officers or because it is alleged that they, or even another person, misled immigration officers or did not disclose information that was relevant and, therefore, should not have been allowed entry.
With a view to making it easier to enforce the deportation of foreign national criminal offenders the Immigration Rules were amended from 20 July 2006: see HC395 paragraph 364. The effect of this amendment and other issues arising in the context of appeals against deportation by criminal offenders were considered by the Tribunal in EO (Deportation appeals: scope and process) Turkey [2007] UKAIT 00062.
The Tribunal’s ruling is summarised in the headnote to the determination as follows:
(1) The word ‘conferred’ in s84(1)(f) has to be read in some sense such as ‘confirmed’. (2) HC 1337 introduced a substantive change, not merely a change of emphasis or clarity, into paragraph 364 of the Immigration Rules. (3) Deportation decisions made before 20 July 2006 are made under, and on appeal are to be reviewed in accordance with, the ‘old’ version of paragraph 364; deportation decisions made on or after 20 July 2006 are made under, and are to be reviewed in accordance with, the ‘new’ version. (4) Decisions to make deportation orders and decisions to issue removal directions under s10 now need to be carefully distinguished. (5) In determining an appeal against a deportation decision made on ‘conducive’ grounds on or after 20 July 2006 the Tribunal should first confirm that the appellant is liable to deportation (either because the sentencing judge recommended deportation or because the Secretary of State has deemed deportation to be conducive to the public good); if so, secondly consider whether deportation would breach the appellant’s rights under the Refugee Convention or the ECHR; if not, thirdly consider paragraph 364. (6) Paragraph 364 is only in issue if the appellant fails to establish a claim under either Convention; and if an appeal is to be allowed under paragraph 364 the Tribunal must identify the reasons, state why they amount to “exceptional circumstances”, and state why they are so strong that the appellant is able to establish that his own circumstances displace the public interest. (7) Removal decisions under s 10 (as distinct from deportation decisions) carry a wider right of appeal on the ground that the discretion should have been exercised differently, but, given the terms of s 92, that right can by no means always be exercised from within the UK. (8) In determining an appeal against a decision (whether before or after 20 July 2006) to give directions under s 10 (as distinct from directions for removal of an illegal entrant) the Tribunal should first consider whether the decision shows, by its terms, that the decision-maker took into account the factors set out in paragraph 395C and exercised a discretion on the basis of them. If it does not, the appeal should be allowed on the basis that it was not in accordance with the law and that the appellant awaits a lawful decision by the Secretary of State. If the decision was made properly, the Tribunal should secondly consider whether the removal of the appellant would breach his rights under the Refugee Convention or the ECHR, and, if not, thirdly whether the discretion under paragraph 395C should be exercised differently, bearing in mind that paragraph 395C does not have the restrictions contained in the ‘new’ paragraph 364. The process is somewhat similar to that under the ‘old’ paragraph 364.
Immigration rule 320
The amended rule reads as follows and is a major change to the UK Immigration Policy:
Grounds on which entry clearance or leave to enter the United Kingdom is to be refused
(7A) where false representations have been made or false documents have been submitted (whether or not material to the application, and whether or not to the applicant’s knowledge), or material facts have not been disclosed, in relation to the application.
7B. where the applicant has previously breached the UK ’s immigration laws by:
(a) Overstaying,
(b) breaching a condition attached to his leave,
(c) being an Illegal Entrant
(d) using Deception in an application for entry clearance, leave to enter or remain (whether successful or not),
unless the applicant:
(i) Overstayed for 28 days or less and left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State,
(ii) used Deception in an application for entry clearance more than 10 years ago,
(iii) left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State, more than 12 months ago,
(iv) left the UK voluntarily, at the expense (directly or indirectly) of the Secretary of State, more than 5 years ago, or
(v) was removed or deported from the UK more than 10 years ago.
Where more than one breach of the UK ’s immigration laws has occurred, only the breach which leads to the longest period of absence from the UK will be relevant under this paragraph.
Rule 320(7A) came into effect on 29 February 2008 and rule 320(7B) on 1 April 2008. However, an important concession to the application of the new rule was announced by the Goverment in Hansard on 17 March 2008.
Lord Gassam of Brighton :
“A number of people have, however, suggested that we will achieve our aims better if we give people who are currently here illegally a chance to leave before the new rules are applied to them. We have listened to their argument and reflected on it, and we agree with them. I can announce that we will not apply the provisions in new paragraph 327B of the Immigration Rules to anyone currently in the United Kingdom who leaves the country voluntarily before 1 October 2008. Those people will be able to apply to come back without being automatically refused under these provisions, although it is possible that they will be refused under other parts of the Immigration Rules.
I emphasise that that does not mean that those people will automatically be allowed to come back. They will need to meet all the other requirements of the Immigration Rules. The BIA will also, as now, have the discretion to refuse them if they contrive in a significant way to frustrate the Immigration Rules; for example, by contracting a bogus marriage, which we know happens. They will not face a period of automatic refusal under paragraph 327B, however, if they go home after 1 October. That gives those who are currently here illegally a clear incentive to go home and, as I mentioned earlier, it promotes the Government’s objectives. We cannot withdraw the Immigration Rules in order to make the change, as I have outlined, since many of them are already in force. The change will therefore take effect as a time-limited concession outside the rules. I hope that noble Lords will find themselves able to support that concession.”
It should be noted that the concession as expressed here does not apply to those who had already left the UK at the time of the announcement in order to go abroad and apply for entry clearance. This may well change, as it makes no sense at all in public policy terms to penalise those who had acted promptly to regularise their position as opposed to those who had lingered in the UK .
Police constables and immigration officers have the power to arrest, without warrant, anyone who has or whom they suspect has committed an immigration offence. The Asylum and Immigration Act 1996 increases the number of immigration offences, the powers of search and arrest in relation and the penalties for immigration offences while the Immigration and Asylum Act 1999 has increased the powers of arrest, search and finger printing.
It is a criminal offence not to give information to an immigration officer, or to give false information or documents. There is effectively no right of silence as the responsibility is on the individual to show that he or she qualifies for the status being claimed under the law. The very wide power under the immigration laws allows for the investigation and detention of suspects under these administrative provisions who do not benefit from the same level of rights as others. This leads to frequent questioning of black people about their immigration status when they come into contact with the police for any other reason, often when there is no other cause for suspicion.
The Codes of Practice under the Police and Criminal Evidence Act 1984 do not apply to immigration officers, although they have agreed to follow them voluntarily.
Those who knowingly remain longer than they have been allowed by the immigration officers or the Home Office without asking permission become ‘overstayers’ and commit a criminal offence. It makes no difference whether they have overstayed for many years or for a few days. They can be arrested and appear before a Magistrates’ Court, which can impose a fine, a sentence of imprisonment or recommend that the person be deported.
Those who are not British citizens, or Commonwealth citizens with the right of abode, or Commonwealth or Irish citizens who settled here before 1 January 1973 and who have lived here ever since, can be recommended for deportation by a court if convicted of any crime for which the penalty could be imprisonment, even if they have previously been allowed to stay in Britain permanently. Special conditions apply where the individual recommended for deportation is an EEA national or the family member of such a national. There is a right of appeal against this as part of the sentence. The recommendation is not binding and it is up to the Home Office whether to carry out the recommendation. Unless the court specifically directs release from detention, the individual will be detained while the Home Office makes its decision.
Administrative removal
The Home Office can instigate the removal of people subject to immigration control for: entering illegally, overstaying, for breaking other conditions of stay, or for obtaining leave to enter by deception. There is no discrete, merits based right of appeal on this basis unless human rights issues are raised in the course of the initial application.
Voluntary departure
There are also provisions for fares to be paid for people settled here who want to return to their countries of origin if it is ‘in that person’s interest to leave the UK ’. People receiving in-patient treatment in mental hospitals may be sent back, under Section 90 of the Mental Health Act 1983, to receive treatment in their country of origin, again if it is ‘in the interests of the patient to remove him’. No definition of this is given and there are no legal safeguards against these powers.
Deportation
The Home Office can also decide to deport someone on the grounds that his or her presence is ‘not conducive to the public good’. This is a very vague term that can include people who have been convicted of a criminal offence but whom the court did not recommend for deportation, or people who are alleged to have made a marriage of convenience. There is a right to an immigration appeal, but if the Home Secretary decides that your presence is non-conducive on the grounds of national security, that appeal is to the Special Immigration Appeals Commission (SIAC) rather than to the adjudicator and the Immigration Appeal Tribunal (IAT).
Once any appeal has been exhausted, the Home Secretary can sign a deportation order and the individual can be sent out of the country. While the order is in force, they cannot return here. They can apply for the order to be revoked, either to the UK Embassy or High Commission in their own country or to the Home Office, but the order is not normally revoked until it has been in force for at least three years. If the order is revoked, the applicant is not entitled to return, but only to apply to return if they can satisfy the immigration rules.
Persons can be treated as illegal entrants either because they entered the country without being questioned by immigration officers or because it is alleged that they, or even another person, misled immigration officers or did not disclose information that was relevant and, therefore, should not have been allowed entry.
With a view to making it easier to enforce the deportation of foreign national criminal offenders the Immigration Rules were amended from 20 July 2006: see HC395 paragraph 364. The effect of this amendment and other issues arising in the context of appeals against deportation by criminal offenders were considered by the Tribunal in EO (Deportation appeals: scope and process) Turkey [2007] UKAIT 00062.
The Tribunal’s ruling is summarised in the headnote to the determination as follows:
(1) The word ‘conferred’ in s84(1)(f) has to be read in some sense such as ‘confirmed’. (2) HC 1337 introduced a substantive change, not merely a change of emphasis or clarity, into paragraph 364 of the Immigration Rules. (3) Deportation decisions made before 20 July 2006 are made under, and on appeal are to be reviewed in accordance with, the ‘old’ version of paragraph 364; deportation decisions made on or after 20 July 2006 are made under, and are to be reviewed in accordance with, the ‘new’ version. (4) Decisions to make deportation orders and decisions to issue removal directions under s10 now need to be carefully distinguished. (5) In determining an appeal against a deportation decision made on ‘conducive’ grounds on or after 20 July 2006 the Tribunal should first confirm that the appellant is liable to deportation (either because the sentencing judge recommended deportation or because the Secretary of State has deemed deportation to be conducive to the public good); if so, secondly consider whether deportation would breach the appellant’s rights under the Refugee Convention or the ECHR; if not, thirdly consider paragraph 364. (6) Paragraph 364 is only in issue if the appellant fails to establish a claim under either Convention; and if an appeal is to be allowed under paragraph 364 the Tribunal must identify the reasons, state why they amount to “exceptional circumstances”, and state why they are so strong that the appellant is able to establish that his own circumstances displace the public interest. (7) Removal decisions under s 10 (as distinct from deportation decisions) carry a wider right of appeal on the ground that the discretion should have been exercised differently, but, given the terms of s 92, that right can by no means always be exercised from within the UK. (8) In determining an appeal against a decision (whether before or after 20 July 2006) to give directions under s 10 (as distinct from directions for removal of an illegal entrant) the Tribunal should first consider whether the decision shows, by its terms, that the decision-maker took into account the factors set out in paragraph 395C and exercised a discretion on the basis of them. If it does not, the appeal should be allowed on the basis that it was not in accordance with the law and that the appellant awaits a lawful decision by the Secretary of State. If the decision was made properly, the Tribunal should secondly consider whether the removal of the appellant would breach his rights under the Refugee Convention or the ECHR, and, if not, thirdly whether the discretion under paragraph 395C should be exercised differently, bearing in mind that paragraph 395C does not have the restrictions contained in the ‘new’ paragraph 364. The process is somewhat similar to that under the ‘old’ paragraph 364.
Immigration rule 320
The amended rule reads as follows and is a major change to the UK Immigration Policy:
Grounds on which entry clearance or leave to enter the United Kingdom is to be refused
(7A) where false representations have been made or false documents have been submitted (whether or not material to the application, and whether or not to the applicant’s knowledge), or material facts have not been disclosed, in relation to the application.
7B. where the applicant has previously breached the UK ’s immigration laws by:
(a) Overstaying,
(b) breaching a condition attached to his leave,
(c) being an Illegal Entrant
(d) using Deception in an application for entry clearance, leave to enter or remain (whether successful or not),
unless the applicant:
(i) Overstayed for 28 days or less and left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State,
(ii) used Deception in an application for entry clearance more than 10 years ago,
(iii) left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State, more than 12 months ago,
(iv) left the UK voluntarily, at the expense (directly or indirectly) of the Secretary of State, more than 5 years ago, or
(v) was removed or deported from the UK more than 10 years ago.
Where more than one breach of the UK ’s immigration laws has occurred, only the breach which leads to the longest period of absence from the UK will be relevant under this paragraph.
Rule 320(7A) came into effect on 29 February 2008 and rule 320(7B) on 1 April 2008. However, an important concession to the application of the new rule was announced by the Goverment in Hansard on 17 March 2008.
Lord Gassam of Brighton :
“A number of people have, however, suggested that we will achieve our aims better if we give people who are currently here illegally a chance to leave before the new rules are applied to them. We have listened to their argument and reflected on it, and we agree with them. I can announce that we will not apply the provisions in new paragraph 327B of the Immigration Rules to anyone currently in the United Kingdom who leaves the country voluntarily before 1 October 2008. Those people will be able to apply to come back without being automatically refused under these provisions, although it is possible that they will be refused under other parts of the Immigration Rules.
I emphasise that that does not mean that those people will automatically be allowed to come back. They will need to meet all the other requirements of the Immigration Rules. The BIA will also, as now, have the discretion to refuse them if they contrive in a significant way to frustrate the Immigration Rules; for example, by contracting a bogus marriage, which we know happens. They will not face a period of automatic refusal under paragraph 327B, however, if they go home after 1 October. That gives those who are currently here illegally a clear incentive to go home and, as I mentioned earlier, it promotes the Government’s objectives. We cannot withdraw the Immigration Rules in order to make the change, as I have outlined, since many of them are already in force. The change will therefore take effect as a time-limited concession outside the rules. I hope that noble Lords will find themselves able to support that concession.”
It should be noted that the concession as expressed here does not apply to those who had already left the UK at the time of the announcement in order to go abroad and apply for entry clearance. This may well change, as it makes no sense at all in public policy terms to penalise those who had acted promptly to regularise their position as opposed to those who had lingered in the UK .
