Specialist Advice & Case Studies

The Government's intolerance towards "foreign nationals" who commit crime is enshrined in the UK Borders Act 2007 (which came into force on the 1^st August 2008). Although the power to deport already exist under section 5 (1) of the Immigration Act 1971, the new Act :

i)makes deportation mandatory in certain circumstances and

ii) restricts the right of appeal (with the Home Secretary rejecting appeals based on human rights as "manifestly ill founded"), leaving a challenge by Judicial Review as the only option.

2. Conditions for mandatory order

Section 32 of the 2007 Act makes it mandatory for the Home Secretary to make a deportation order against a non-British national who has been convicted either

i)of any offence where they are sentenced to a term of imprisonment of 12 months or

ii)of certain specified offences to be set out in a separate Statutory Instrument and which attract a sentence of any length.

3. The meaning of 12 months

a. Does not include:

i) those sentenced to periods of imprisonment of less than 12 months on separate consecutive sentences that add up to more than 12 months or

ii) a suspended sentence (unless the suspension is activated)

b. Does include:

i)a sentence of imprisonment for an indeterminate period, provided that it lasts for at least 12 months:

ii)an order for detention of 12 months or more in an institution that is not a prison - eg a hospital or Youth Offenders Institute.

c. Extended License

There is no guidance as to whether or not an extended license for more than 12 months attracts a mandatory deportation order. As the emphasis in the Act is based on imprisonment per se, one would hope that it would not be interpreted as falling within the spirit of the conditions.

4. Retrospective

i) The Home Secretary is entitled to use the powers under the Act for relevant offences committed before 1^st August 2008.

ii) However, where the Home Secretary has already served notice to make a deportation order under the existing powers under Section 5(1) of the Immigration Act 1971, it must continue to be dealt with under those provisions.