Can I deport my husband from the UK?
The information in this article entitled “Can I deport my husband from the UK?” applies to both husbands and wives of British Nationals or settled persons in the UK.
This article is not written for the seasoned immigration lawyer, but the client or prospective client requiring immigration advice due to the breakdown in their marriage /relationship. In that respect, on numerous occasions, we at Gulbenkian Andonian Solicitor have come across clients who are either British citizens or settled here under the UK immigration rules or via the EU settlement scheme. They may be married or in a relationship as cohabiting partners or civil partnership with foreign nationals complaining to us that they have come to realise that their spouse/partner/civil partner had only entered into the relationship to gain long-term residency in the UK, and ask how they can be removed or deported from this country.
The relationship may have broken down irretrievably for a host of reasons. For example, due to the foreign national’s adultery with a friend, or say because of domestic violence. In some of these relationships, the parties may have British or settled children. There may be cases where the foreign national may have committed criminal offences for which they may have been convicted and sent to prison.
The difference between deportation and administrative removal
Although a distraught client may enquire about deporting their foreign national spouse/partner/civil partner, there is, in fact, a difference between deportation and another form of removal which is called administrative removal.
In general, deportation is the enforced removal of someone for the public good usually after being remanded in custody for a criminal offence or more likely because they have been convicted of a criminal offence and sentenced to a prison term of over 12 months. At the end of the criminal’s sentence, the Home Office usually writes to them stating that the UK government intends to deport them and request them to explain why they ought not to be deported. It should also be noted that both EEA and non-EEA nationals can be deported following a criminal offence conviction.
As regards administrative removal, however, under section 10 of the Immigration and Asylum Act 1999, a person may be removed from the UK under the authority of the Secretary of State for the Home Department (SSHD), or an immigration officer requiring that the person concerned who lacks leave to enter or remain in the UK but does not have it, should leave. This means that the following people may be removed: those who are in this country illegally; or as overstayers; those who have entered into a sham marriage only to remain in this country; those who have been working illegally, and persons who have received the Home Office or in other immigration authorities in their application for leave to enter/remain in the UK. It should also be noted that some family members could also be removed with the individual. For example, it could be that a partner and or child of the individual who is not a British citizen or settled in this country can also be removed. Each case depends on its own facts.
The effect of deportation and administrative removal
While the effects of a deportation order remain significantly more draconian than those of administrative removal, in that for deportation, there is a ban on re-entry to the UK for ten years. The two processes have been brought closer together by introducing re-entry bans for those who have been administratively removed. There is now a mandatory exclusion from the UK of between 1 and 10 years of certain people who have been subject to administrative removal.
From 6 April 2015, the most important removal provision is set out in section 10 of the Immigration and Asylum Act 1999 (IAA 1999). Schedule 2 of the Immigration Act 1971 (IA 1971) remains relevant as it sets out lawful directions.
In certain circumstances, therefore, a foreign spouse can be removed under the administrative removal process.
Whereas the aggrieved British/ settled spouse/partner/ civil partner will use the word deportation most likely as wanting the other party to be deported, the likelihood is that, if there is to be a removal it will be by way of administrative removal.
In the next section of the article, we deal with the circumstances whereby an aggrieved spouse/partner may be able to successfully assist the Home Office in removing the other party, and the circumstances whereby this may not be possible. Removal may not be easy.
If a party is to be removed, that party will have some rights, in that it can ask the upper tribunal Immigration and Asylum chamber to judicially review the decision to remove them. The tribunal question will be whether a reasonable Secretary of state would have decided to remove this person. At this stage the party being removed may have been in the UK for many years, could have developed human rights private or family life rights under article 8 of the European Convention on Human Rights 1950 as incorporated in the Human Rights Act 1998, or he/she could have developed other relationships and have had children from those relationships.
These may be matters that the Home Office would be aware of but may have decided to go ahead with administrative removal. If the judicial review proceedings are successful, then the likelihood is that the party who was to be removed would be able to stay in the UK. The downside is that the party concerned will not be able to give oral evidence.
Deportation – challenging a deportation order
On the other hand, if the foreign spouse/partner/ civil partner has been convicted of a criminal offence of more than 12 months, the likelihood is that a deportation order will be made, and they will be detained under the immigration laws after serving a sentence pending deportation. That said, deportation is also a discretionary power and a punitive measure under section 5 of the Immigration Act 1971.
Whilst there is no automatic right of appeal to challenge a deportation order, uncertain circumstances a deportee may have a right of appeal to have a deportation order revoked under for example human rights claims as to family or private life, under article 8 of the Human Rights Act 1998, or may raise protection issues as to asylum or humanitarian protection and/or claim under article 3 of the Human Rights Act on the basis that if they were returned to their country their life would be in danger on medical or other grounds, and they would suffer inhumane and or degrading treatment or punishment.
What an aggrieved spouse/partner can do
The most appropriate course of action for an aggrieved spouse/partner/ civil partner who considers that their status has been used by the other party only to gain residence in this country is to consider how long the other party has been in this country based on the relationship. Suppose the other party does not have settlement here either under the immigration rules or under the EU settlement scheme, which means permanent residency.
In that case, a complaint can be made to the Home Office quoting the Home Office reference number and the full name of the spouse/partner/civil partner and explain in a recorded delivery letter or appropriate email that the relationship is over be it on the basis that the parties on a longer living together, giving reasons or on the basis that there is a divorce. The likelihood is that since the other party has only temporary permission in the UK, has not completed five years’ permission to stay here in the relationship categories, and has not obtained a status of the settlement. In this case, their leave to enter or leave to remain will be curtailed, and they will be given several days to leave the UK after curtailment of that permission to stay. If the person does not leave by then, then the administrative removal process can take place.
Suppose the aggrieved party notes that their spouse/partner/ civil partner have obtained settlement due to that relationship. In that case, it is too late for anything to be done about it and removal would almost certainly not take place.
Furthermore, as stated earlier there could be children of the relationship involved who are British citizens or settled here, and with whom the party at fault may be having a close parental relationship, and this is a very different scenario where the best interests of the children will have to be balanced against any question of removal of their parent from the UK.