For information about the Illegal Migration Act 2023, see our Legal Update blog here.

Last updated: 20 August 2024

Removal from the UK

You may be at risk of removal from the UK if you do not have – or have not applied for – leave to remain (immigration status). You are also at risk of removal if your asylum or immigration application has been refused. You are at risk of removal if you had limited leave to remain in the UK and it has now expired.

For information on deportation following a criminal sentence, see the section below.

If the Home Office has decided to remove you from the UK, you will receive a letter called a notice of intention to remove. The letter will include the notice period for removal, which is a minimum period of 5 days (under section 46 of the Nationality and Borders Act 2022) during which you cannot be removed. 

The notice may also include ‘notice of departure details’ (such as the details of the flight that the Home Office intends to remove you on), but this is not always the case. 

The Home Office guidance on notice periods for enforced removal includes more information here. 

When you cannot be removed from the UK

You should not be removed from the UK if you have an ongoing asylum claim (this means you are waiting for a decision from the Home Office). However, if the Home Office has decided your asylum claim is “inadmissible” because you travelled through another country, you may be at risk of removal.

You should not be removed from the UK if you are appealing a refusal of your immigration application or asylum claim. This only applies if you have a right to appeal within the UK. If your case has been categorised as a “non-suspensive appeal” case you can be at risk of removal even if you have an appeal pending. Read more about appeals on the Appeal page of the Toolkit.

You should not be removed from the UK if you have submitted a fresh claim and a decision has not yet been made on whether it is a fresh claim or not. You should keep proof of submitting a fresh claim. Read more about fresh claims on the Fresh Claim page of the Toolkit.

You should not be removed from the UK if you have an injunction preventing removal. Read more about injunctions here.

There are situations when judicial review proceedings (even without an injunction) may stop a removal taking place. Read more here.

You should not be removed from the UK if it would compromise your human rights, or breach the UK’s obligations under the Refugee Convention, or the European Convention on Human Rights.

Challenging a removal

If you have been notified that you are to be removed from the UK, check the ‘Who cannot be removed from the UK’ section above to see if the Home Office is allowed to do this in your situation. If you are in one of the situations mentioned above, you or your lawyer need to provide evidence of this to the Home Office and request that the attempt to remove you is stopped.

If there are asylum or human rights grounds that mean you need to stay in the UK at the time of a decision to remove you, and you have not already informed the Home Office of these or made an application, you need to do so as soon as possible. Read the Asylum, Human Rights and If You Have Children pages of this guide to see if these may be relevant to you, and how to apply.

There may be other reasons you can challenge your removal, such as if other legal proceedings are ongoing in other areas of law, or if the proper procedure for removal has not been followed.

If there are legal reasons – such as those described in this section – that mean you should not be removed from the UK, and the Home Office has ignored or refused a request to cancel your removal, you may need to consider an injunction to try and stop the removal from happening. Read more about injunctions here.

Deportation after a criminal sentence

If the Home Office has issued a deportation order in your case, you will be issued with notice of deportation arrangements. This should follow the rules of removal notice periods described above.

The immigration rules are now weighted very much in favour of deporting a person after a criminal sentence.

The rules state that if you were sentenced for more than 12 months, your deportation is ‘conducive to the public good and in the public interest’. The idea behind the Home Office’s ‘public good’ principle is if they think it would cause more harm to the public good (society) if someone who committed a certain crime were to remain in the UK, even if this would cause harm to the individual or their community. 

If you are liable to deportation, your spouse or civil partner and/or your child are also liable to be deported unless they have Indefinite Leave to Remain in the UK in their own right, or are British, or have been living apart from you.

If you were sentenced to more than 4 years, the Home Office guidance says you will need to have ‘very compelling circumstances’ in order for a deportation order not to be made or to be revoked (undone). The courts, however, may have a different interpretation of those circumstances than the Home Office.

If you have been sentenced to less than 4 years but more than 12 months, or your offending is deemed to fall into the ‘causing serious harm’ category, the immigration rules say that deportation would be proportionate (acceptable) except if it would breach your Article 8 human right to family and private life, AND:

(1) You have a child under the age of 18 in the UK, meaning:

• you have a ‘genuine and subsisting parental relationship’ with your child
• your child is a British citizen or has lived in the UK for at least seven years immediately prior to the decision to deport you
• it would be ‘unduly harsh’ for your child to live in the country to which you will be deported, and
• it would be ‘unduly harsh’ for your child to remain in the UK without you.

OR

(2) You have a ‘genuine and subsisting relationship’ with a partner who is in the UK and has British citizenship / Indefinite Leave to Remain, and:

• the relationship was formed at a time when you were in the UK lawfully and your immigration status was ‘not precarious’; and
• it would be unduly harsh for your partner to live in the country to which you are being deported, because of compelling circumstances over and above very significant difficulties which would be faced by you and your partner in continuing your family life together outside the UK and which could not be overcome or would entail very serious hardship for you and your partner; and
• it would be unduly harsh for your partner to remain in the UK without you.

You also need to show that you have been lawfully resident in the UK for most of your life, you are socially and culturally integrated in the UK, and there would be ‘very significant obstacles’ to integration into the country to which you are being deported.

The Home Office says that you must provide original, independent and verifiable documentary evidence of all of these factors. See the If You Have a Children and Evidence pages of this Toolkit for ideas on how you can prove some of these factors.

The Home Office has a very restricted view on who meets the circumstances above. A judge in an appeal may find that even if you don’t meet the requirements of the immigration rules, you would suffer a disproportionate breach of your Article 8 rights if you were deported.

EEA nationals

If you are an EEA national and have Settled Status or Pre-Settled Status in the UK (or are eligible to apply), you could still be at risk of deportation from the UK if you are convicted of committing a criminal offence. Read more about Pre-Settled and Settled Status on our EEA nationals page.

If the criminal offence was committed before the end of 2020, the Home Office will need to consider the pre-Brexit rules on EU nationals. This means they would have to show that deportation is in the interests of ‘the public good, public health or public security’. The threshold (level) for showing that deportation is in one or more of these interests was generally higher for EEA nationals than the ‘public good’ arguments for deportation of non-EEA nationals. The threshold is also determined by the length and permanence of your residence in the UK. For example, the threshold is higher for those with the right to permanent residence in the UK.

If the criminal offence was committed after 2020, or you did not have or were ineligible for Pre-Settled Status or Settled Status, the normal rules on deportation will apply to you.

Challenging a deportation

There is no longer a right to appeal the decision to deport you.

If at the time of a decision to deport you, there are asylum or human rights grounds that mean you need to stay in the UK and you have not already informed the Home Office of these or made an application, you need to do so as soon as possible.

Read the Asylum, Human Rights and If You Have Children pages of this guide to see if these may be relevant to you, and how to apply.

Around the time of the decision to deport you, you will be issued with a Section 120 “one-stop notice”. On this form, you must state any reasons for why you have not already told the Home Office why you need to stay in the UK. You need to make sure you send the form back by the date specified on the one-stop notice. If you miss the deadline, make sure to mention your reasons for why you are sending it late. It is very important for your case to try and send it back in time. Read our Toolkit page on Section 120 notices, and how to respond to one here. 

If you do not mention asylum and human rights reasons you need to stay in the UK on the one-stop notice (see above), and then make an asylum or human rights application, the Home Office may certify your application, meaning you will not have a right to appeal a refusal.

If this happens to you, you may have the option of a judicial review. Read more about judicial reviews on the Judicial Review page of the Toolkit.

If your claim based on a need for protection (asylum) or human rights is refused, you might have the right to appeal that refusal. Read more about appeals on the Appeals page of this guide.

Exceptional legal aid funding 

Unless your claim is based on asylum or Article 3 (freedom from torture or degrading treatment) human rights grounds, your deportation case will not be eligible for Legal Aid funding. 

However, you may be able to apply for exceptional legal aid funding if you believe your human rights would be breached if you do not get access to legal aid. 

The organisation Bail for Immigration Detainees has a guide to applying for exceptional case funding in deportation cases, which you can access here.

The Public Law Project also has a guide about exceptional case funding, which you can access here.

Now read: Judicial Review page