recommendation for deportation on conviction

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A recommendation by a court that a convicted offender should be deported. The power of the Home Secretary to deport a convicted person is conferred by s 3(6) of the Immigration Act 1971. A person can be deported where he has been convicted of an offence punishable with imprisonment (whether or not he is actually sentenced to imprisonment), has attained the age of 17 years before the date of conviction, and is not a British citizen. Exemptions apply in certain circumstances to citizens of Commonwealth countries or the Republic of Ireland who are resident in the UK, and to diplomatic personnel and their families (ss 7 and 8 of the Act). On the coming into force (on 30 April 2006) of the Immigration (European Economic Area) Regulations 2006 SI 2006/1003) and the consequent implementation of EU Directive 2004/38, nationals of EU member states (other than those of Norway, Iceland, Liechtenstein, and Switzerland and dependent on their particular circumstances) have certain rights of residence in the UK. Nonetheless, such a person can be deported if the Home Secretary decides that his removal is justified on the grounds of public security, provided that the decision is ‘proportionate’.

The power of the court to recommend deportation is conferred by s 6(1) of the Act. Such a recommendation can only be made if the defendant has been served with a ‘Notice as Regards Liability to Deportation’ (Form IM3) at least seven days beforehand, although the court can adjourn the case to allow the notice to be given or the seven days to elapse (s 6(2) and (4) ). The recommendation can be combined with any other sentence, including life imprisonment (s 6(4) ).

When considering whether to make a recommendation for deportation, the question that must be asked by the court is ‘whether the continued presence of the offender is to the detriment of this country’; i.e. whether it is in the public interest for him to be deported. One serious offence is liable to lead to the conclusion that continued presence is detrimental. A less serious offence may also justify a recommendation when combined with a likelihood of reoffending, whether demonstrated by previous convictions or other cogent material. Although, apparently, the Home Secretary applies an unpublished rule of thumb to the effect that he will not normally order deportation of a non‐EU national where the sentence is less than one year's imprisonment, or two years in the case of an EU national; nonetheless, the court may recommend deportation if satisfied that the continued presence of the person in the UK is against the public interest, but should be cautious when doing so (R v Carmona [2006] 1 WLR 2264).

Since the order of the court is merely a recommendation, and not a decision to deport, the court does not have to take account of the person's rights under Articles 2 (right to life), 3 (prohibition on torture), and 8 (right to respect for family life) of the European Convention on Human Rights, or the rights of anyone else. In particular, the conditions and the regime in the country to which the person would be deported, and any effect on his family or dependents, are not relevant considerations for the court. They are matters for the Home Secretary to take into account when deciding whether to act on the recommendation.


Subjects: Law.

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