Upper Immigration Tribunal appeal UK
The appeal case described recently in the press perfectly encapsulates the harsh deportation policies towards foreign nationals.
Polly Gordon is a 75 years old USA citizen who has lived in the UK for 53 years. She suffers from poor health and has a history of substance abuse and alcohol addiction.
After she served 12 month sentence for drug related offences Home Office decided to deport her to the USA. It is in accordance with Home Office’s standard policy to consider for deportation any foreign national who is convicted of a crime and given a prison sentence. The First Tier Immigration Tribunal agreed with the Home Office to deport her but she successfully challenged this decision by appealing to the Upper Immigration Tribunal. At the Upper Tribunal three senior judges decided in her favour, stating that deportation would disproportionately interfere with her human rights.
As the Home Office expresses it:
- ‘Any foreign national who is convicted of a crime and given a prison sentence is considered for removal at the earliest opportunity’
- ‘For non-European Economic Area (EEA) nationals, deportation will be pursued when an individual has received a custodial sentence of 12 months or more, has committed an offence that caused serious harm, or is a persistent offender.’
After Brexit EU and EEA nationals deportations and appeal
The Brexit means that the EU and EEA citizens will be subject to the same regime. As stated by the Home Office guidance: ‘The UK’s departure from the EU will mean that, in future, an EEA national who commits an offence after the end of the transition period (31 December 2020) will be considered under the same thresholds that apply to non-EEA nationals.’
Remedies available to immigrants
After the decision to deport a foreign national has been made he or she is served their notice of deportation. They have the right to appeal the decision to a First Tier Tribunal (Immigration and Asylum Chamber). The appeal suspends the deportation procedure till the decision is made by the Tribunal.
If the Tribunal rejects the appeal the claimant has still some options open to him/her, based mostly on his/her human rights claim(s).
‘There may be reasons why the offender cannot be deported. For example, their criminality may not meet the deportation threshold, or deporting them may breach the UK’s international obligations under the European Convention on Human Rights (ECHR) or the United Nations Refugee Convention. This means that the FNO may have refugee status or has a human rights claim under the ECHR.’
It has to be noted that appeals on the human rights grounds are notoriously complex and expensive to pursue. Many claimants cannot afford expert legal help in such matters which seriously impacts their chances of successful appeal.
In the case above the claimant has been successful in her appeal. The Upper Tribunal judges have found that the claimant had been living in the UK for a long time and removing her would disproportionately interfere with her human rights.
Home Office approach
The Polly Gordon case is symptomatic of the general Home Office approach in favour of removing migrants who commit criminal offences. Appeal process is often claimants only hope but the proceedings are expensive.
What is worth noting is the fact that Polly Gordon has obtained an Indefinite Leave to Remain (ILR) in the UK many years ago but never Naturalised. It is worth considering to apply for naturalisation in the UK as soon as we are eligible. If Polly Gordon was a British citizen she would not be subject to the deportation proceedings designed for foreign national offenders (FNO).
Appeal proceedings are complex for individuals to handle on their own but legal cost can be prohibitive for many. Those who cannot afford legal help are forced to look for charity or non profit representatives as their only viable option. In this case the claimant was successful in her appeal. In many other cases the outcome of the procedure is negative.