Key Points
- From 22 March 2026, the Sentencing Act 2026 extended the mandatory deportation duty under the UK Borders Act 2007 to cover suspended sentences of 12 months or more, not just immediate custodial sentences of the same length.
- The parallel changes to Part Suitability of the Immigration Rules mean that a historic suspended sentence, however old, can now trigger a mandatory refusal of any new visa, extension, or settlement application. There is no time limit and no exception based on rehabilitation or the passage of time.
- The Court of Appeal in Majera v Secretary of State for the Home Department [2025] EWCA Civ 1597 confirmed that rehabilitation evidence carries little or no material weight in serious offender cases and that the “very compelling circumstances” threshold remains high.
- Where a person has a British citizen child, best interests under section 55 of the Borders, Citizenship and Immigration Act 2009 are a primary consideration, but the “unduly harsh” test, as confirmed by the Supreme Court in HA (Iraq) [2022] UKSC 22, demands individualised, specific evidence.
- Judicial review of a deportation decision remains available where the Home Office has acted unlawfully, applied the wrong legal test, or failed to consider relevant evidence. Early specialist advice is essential given the strict three-month time limit.
Introduction
On 22 March 2026, a significant change to UK deportation law came into force. Section 45 of the Sentencing Act 2026 extended the mandatory deportation duty, previously limited to immediate custodial sentences of 12 months or more, to cover suspended sentences of the same length. For foreign nationals convicted of criminal offences in the UK, this marks one of the most consequential shifts in deportation practice in years. It also interacts with simultaneous changes to the Part Suitability framework in the Immigration Rules, creating a web of automatic consequences that advisers and their clients must understand fully.
Table of Contents
The Government’s Immigration White Paper of May 2025, the “Restoring Order and Control” statement of November 2025, and now the Immigration and Asylum Bill announced in the King’s Speech of 13 May 2026 all signal a sustained political direction: faster removals, higher barriers to remaining, and a narrower scope for human rights arguments. Against this backdrop, understanding the new deportation triggers and knowing when and how to challenge them has never been more pressing.
This article explains the new mandatory duty, its scope and transitional provisions, the current approach of the courts to rehabilitation and family life arguments, and the practical steps available to foreign nationals and their advisers when deportation becomes a real prospect. If you are affected by any of the issues discussed here, our immigration judicial review team can advise on the options available to you.
The New Mandatory Deportation Duty
What Section 45 of the Sentencing Act 2026 Does
Before March 2026, the duty under the UK Borders Act 2007 to make a deportation order applied to non-British, non-Irish nationals convicted of an offence resulting in an immediate custodial sentence of 12 months or more. Suspended sentences were outside the scope of the automatic duty, even where the suspended sentence was of identical length.
Section 45 of the Sentencing Act 2026 has changed that. A suspended sentence of 12 months or more now triggers the same mandatory deportation duty as an immediate custodial sentence of the same length, unless one of the statutory exceptions applies. The exceptions include situations where deportation would breach the person’s rights under the European Convention on Human Rights, or the UK’s obligations under the Refugee Convention.
The transitional provisions are narrow. The mandatory deportation duty applies only to convictions on or after 22 March 2026. A person convicted before that date and given a suspended sentence of 12 months will not be subject to the new mandatory duty for that specific conviction. The picture under Part Suitability, however, is harder.
Part Suitability
The transitional protection for pre-March 2026 convictions does not extend to the Part Suitability rules. The changes to Part Suitability of the Immigration Rules have no transitional provisions. A suspended sentence of 12 months imposed years ago, even one that is spent under the Rehabilitation of Offenders Act 1974, can now trigger a mandatory refusal of any future visa, extension, or settlement application. The Home Office can and does consider all past convictions regardless of when they occurred, and applicants are required to disclose all convictions, including spent ones, on immigration applications.
I often have clients who have served no prison time, complied with every condition of a suspended sentence imposed eight years ago, and built a settled family and working life in the UK. These clients now face a mandatory refusal on any new immigration applications. The absence of any time-based exception means that length of residence, rehabilitation, and community ties do not, by themselves, override the mandatory refusal ground. The question then becomes whether Article 8 of the ECHR can provide a way forward.
The Courts’ Current Approach to Deportation and Human Rights
Rehabilitation
The Court of Appeal’s judgment in Majera v Secretary of State for the Home Department [2025] EWCA Civ 1597, handed down on 9 December 2025, provides important guidance on the weight that rehabilitation can carry in deportation cases involving serious offenders sentenced to four years or more.
Lord Justice Warby, delivering the leading judgment, affirmed the structured framework established by the Supreme Court in HA (Iraq), RA (Iraq) and AA (Nigeria) [2022] UKSC 22. Section 117C(6) of the Nationality, Immigration and Asylum Act 2002 provides that, where a foreign criminal has been sentenced to four years or more, deportation is in the public interest unless there are “very compelling circumstances, over and above” the standard exceptions.
The Court found that rehabilitation can be relevant, in that it shows a reduction in the risk of reoffending and therefore diminishes to some degree the public protection rationale for deportation. Showing that a person has not reoffended, however, carries “little or no material weight.” Even positive evidence of reduced risk, including probation reports, treatment programmes, and stable employment, carries only “some weight” and will rarely be sufficient by itself to constitute “very compelling circumstances.”
Rehabilitation evidence remains part of the picture but must be embedded in a much wider and more detailed Article 8 assessment, rather than treated as a standalone argument.
Children, Best Interests, and the Unduly Harsh Test
Where a foreign national facing deportation has a British citizen child, the analysis must include the child’s best interests as a primary consideration under section 55 of the Borders, Citizenship and Immigration Act 2009. The Supreme Court in HA (Iraq) confirmed that the correct test is whether deportation would be “unduly harsh” on the child, and that this is a deliberately high threshold.
“Unduly harsh” means something that goes well beyond what is merely uncomfortable, inconvenient, or difficult. General arguments about separation, disruption to schooling, or emotional distress will not be sufficient without detailed, individualised evidence. Tribunals and courts require school reports, medical evidence, expert assessments of the child’s particular situation, and a clear picture of what would actually happen to the child if the parent were removed.
The “Very Compelling Circumstances” Safety Valve
For those sentenced to four years or more, meeting the family life or private life exceptions alone is not enough to defeat deportation. Parliament has established through section 117C(6) of the Nationality, Immigration and Asylum Act 2002 that something further must be demonstrated. The courts have consistently described this as a safety valve for exceptional cases, not a route for general Article 8 arguments.
In my experience, cases that succeed at this stage typically involve a combination of factors: very long residence, strong family ties including dependent British citizen children with established evidence of unduly harsh impact, genuine and sustained rehabilitation, particular vulnerability of family members, and sometimes medical or other personal circumstances that compound the picture.
The Immigration and Asylum Bill 2026
The Government’s legislative programme announced in the King’s Speech of 13 May 2026 includes proposals that will further change the terrain for those facing deportation.
The Bill proposes to define “family life” in statute, limiting it to a core unit of spouses, parents, and children and thereby excluding claims based on relationships with extended family members. It also plans to give greater statutory weight to the public interest in deportation cases, and to create a new independent appeals body to replace the First-tier Tribunal, staffed by trained adjudicators rather than judges. Importantly for deportation cases, the Bill would enable immediate forced removal of individuals whose appeals have been exhausted, reducing the window for late legal challenges.
Practical Guidance for Clients
For foreign nationals who have received a suspended sentence of 12 months or more, whether recently or years ago, the following actions should be :
- Obtain specialist legal advice before making any further immigration application. The Part Suitability mandatory refusal ground is triggered regardless of how long ago the sentence was imposed.
- Disclose all convictions, including spent ones, on immigration applications. Failure to disclose is itself a separate ground for refusal and can destroy credibility in future proceedings.
- Begin building Article 8 evidence now rather than waiting for a refusal or deportation notice. Evidence of family life, private life, and the impact of removal on British citizen children needs to be detailed, specific, and current.
- Do not rely on rehabilitation evidence alone. Courts and tribunals treat it as a relevant but rarely sufficient factor in serious offender cases.
- Act within the time limits if a deportation order is made. The window for judicial review, generally three months from the decision, runs quickly. Our immigration litigation and judicial review team can advise on the options at this stage.
Conclusion
The extension of the mandatory deportation duty to suspended sentences, combined with the changes to Part Suitability, represents a material tightening of the consequences of a criminal record for foreign nationals in the UK. The courts have confirmed that the thresholds for defeating a deportation order remain high, even where rehabilitation is genuine and evidenced. The forthcoming Immigration and Asylum Bill will, if enacted, narrow human rights arguments further and reduce the time available to challenge removal decisions.
For anyone affected by these changes, acting promptly is essential. The interplay between mandatory deportation, Part Suitability refusals, Article 8, and the evolving legislative framework creates a genuinely complex picture. Specialist legal advice, built around a thorough assessment of the individual’s circumstances, criminal history, family ties, and the specific legal arguments available, offers the clearest path through it.
Frequently Asked Questions
Does the new mandatory deportation duty apply to convictions before 22 March 2026?
No, the mandatory deportation duty under the Sentencing Act 2026 applies only to convictions on or after 22 March 2026. However, the Part Suitability mandatory refusal ground has no transitional provisions and therefore applies to historic convictions as well, meaning a past suspended sentence of 12 months can trigger a mandatory visa refusal regardless of when it was imposed.
Can I remain in the UK on Article 8 grounds despite a deportation order?
Yes, Article 8 of the ECHR can provide a defence to deportation, but only where the interference with private or family life is disproportionate to the legitimate aim of deportation. For those sentenced to four years or more, this requires demonstrating “very compelling circumstances, over and above” the standard statutory exceptions, a high threshold confirmed by both the Supreme Court in HA (Iraq) [2022] UKSC 22 and the Court of Appeal in Majera [2025] EWCA Civ 1597.
How much weight will a tribunal give to evidence that I have reformed?
Rehabilitation is relevant but carries limited weight in serious offender cases. The Court of Appeal in Majera [2025] EWCA Civ 1597 confirmed that evidence of not reoffending carries “little or no material weight” and that rehabilitation evidence is “some weight” at best. It must form part of a broader, carefully constructed Article 8 case rather than standing as the primary argument.
What happens to my visa application if I have a historic suspended sentence of 12 months?
The changes to Part Suitability mean that a historic suspended sentence of 12 months or more will trigger a mandatory refusal of any visa, extension, or settlement application, regardless of when the sentence was imposed or how much time has passed. The Home Office can consider all past convictions, including spent ones, on immigration applications. Specialist legal advice is essential before any application is submitted.
How long do I have to challenge a deportation decision by judicial review?
A claim for judicial review must be submitted within three months of the Home Office’s decision date. Missing this deadline can result in losing the right to challenge the decision entirely. The pre-action protocol process, which requires sending a formal letter before claim to the Home Office, should be started as early as possible within that window. Contact our judicial review immigration solicitors for urgent advice.
Dr Bernard Andonian is the Co-Founder of Gulbenkian Andonian Solicitors and a leading authority in UK immigration, human rights, family and civil litigation law. With over 40 years of experience, he brings a wealth of legal knowledge and courtroom expertise. A former Judge and a recipient of a PhD in Law from the University of West London, Dr Andonian has served on the Law Society’s Immigration Law Panel, where he played a key role in shaping national legal standards. His name is featured in the Legal 500 Hall of Fame, recognising his consistent excellence and influence in the field. Known for his practical approach and deep understanding of immigration law, he is frequently consulted for commentary on policy changes and legal reform.