Suspended Deportation Orders: A Proposed Law Reform to the Deportation of Foreign National Offenders From the UK

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Abstract

The Immigration Act 2014, the UK statutory law governing deportation, requires deportation as the normal consequence of criminal offending by a foreign national. Deportation is a binary institution; a foreign national offender (FNO) is made subject to a deportation order and deported from the UK, or they are not. This is problematic because it creates two kinds of “hard cases” on either side of the statutory categories for exemption from deportation on the basis of an FNO’s Article 8 ECHR family life. The first type of “hard case” in the Immigration Act 2014 is the creation of hard and fast lines for qualification for the exceptions to deportation. This results in cases where one individual qualifies for an exception but another individual, who is otherwise in substantially in the same position, does not because the qualifying criteria are based on arbitrary lines, drawn on the basis of age or length of residence. The second type of “hard cases” arise because the vague, subjective way in which other of the exception criteria are worded, and for which there is no objective standard by which they may be judged. This article proposes the introduction of a “suspended deportation order” so as to create a third possible disposal for deportation appeals as a means by which to tackle the problems arising from the binary outcomes to deportation appeals. This article examines suspended prison sentences as a model for the rationale and practical application of a “suspended deportation order”, noting both similarities and differences to this fixture of sentencing law.
Original languageEnglish
JournalOxford Journal of Legal Studies
Publication statusAccepted/In press - 14 Nov 2019

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deportation
law reform
offender
immigration law
appeal
ECHR
Law
exemption
imprisonment
qualification

Cite this

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title = "Suspended Deportation Orders: A Proposed Law Reform to the Deportation of Foreign National Offenders From the UK",
abstract = "The Immigration Act 2014, the UK statutory law governing deportation, requires deportation as the normal consequence of criminal offending by a foreign national. Deportation is a binary institution; a foreign national offender (FNO) is made subject to a deportation order and deported from the UK, or they are not. This is problematic because it creates two kinds of “hard cases” on either side of the statutory categories for exemption from deportation on the basis of an FNO’s Article 8 ECHR family life. The first type of “hard case” in the Immigration Act 2014 is the creation of hard and fast lines for qualification for the exceptions to deportation. This results in cases where one individual qualifies for an exception but another individual, who is otherwise in substantially in the same position, does not because the qualifying criteria are based on arbitrary lines, drawn on the basis of age or length of residence. The second type of “hard cases” arise because the vague, subjective way in which other of the exception criteria are worded, and for which there is no objective standard by which they may be judged. This article proposes the introduction of a “suspended deportation order” so as to create a third possible disposal for deportation appeals as a means by which to tackle the problems arising from the binary outcomes to deportation appeals. This article examines suspended prison sentences as a model for the rationale and practical application of a “suspended deportation order”, noting both similarities and differences to this fixture of sentencing law.",
keywords = "deportation, sentencing, foreign national offenders, crimmigration law, law reform, criminal justice",
author = "Jonathan Collinson",
year = "2019",
month = "11",
day = "14",
language = "English",
journal = "Oxford Journal of Legal Studies",
issn = "0143-6503",
publisher = "Oxford University Press",

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N2 - The Immigration Act 2014, the UK statutory law governing deportation, requires deportation as the normal consequence of criminal offending by a foreign national. Deportation is a binary institution; a foreign national offender (FNO) is made subject to a deportation order and deported from the UK, or they are not. This is problematic because it creates two kinds of “hard cases” on either side of the statutory categories for exemption from deportation on the basis of an FNO’s Article 8 ECHR family life. The first type of “hard case” in the Immigration Act 2014 is the creation of hard and fast lines for qualification for the exceptions to deportation. This results in cases where one individual qualifies for an exception but another individual, who is otherwise in substantially in the same position, does not because the qualifying criteria are based on arbitrary lines, drawn on the basis of age or length of residence. The second type of “hard cases” arise because the vague, subjective way in which other of the exception criteria are worded, and for which there is no objective standard by which they may be judged. This article proposes the introduction of a “suspended deportation order” so as to create a third possible disposal for deportation appeals as a means by which to tackle the problems arising from the binary outcomes to deportation appeals. This article examines suspended prison sentences as a model for the rationale and practical application of a “suspended deportation order”, noting both similarities and differences to this fixture of sentencing law.

AB - The Immigration Act 2014, the UK statutory law governing deportation, requires deportation as the normal consequence of criminal offending by a foreign national. Deportation is a binary institution; a foreign national offender (FNO) is made subject to a deportation order and deported from the UK, or they are not. This is problematic because it creates two kinds of “hard cases” on either side of the statutory categories for exemption from deportation on the basis of an FNO’s Article 8 ECHR family life. The first type of “hard case” in the Immigration Act 2014 is the creation of hard and fast lines for qualification for the exceptions to deportation. This results in cases where one individual qualifies for an exception but another individual, who is otherwise in substantially in the same position, does not because the qualifying criteria are based on arbitrary lines, drawn on the basis of age or length of residence. The second type of “hard cases” arise because the vague, subjective way in which other of the exception criteria are worded, and for which there is no objective standard by which they may be judged. This article proposes the introduction of a “suspended deportation order” so as to create a third possible disposal for deportation appeals as a means by which to tackle the problems arising from the binary outcomes to deportation appeals. This article examines suspended prison sentences as a model for the rationale and practical application of a “suspended deportation order”, noting both similarities and differences to this fixture of sentencing law.

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KW - law reform

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JF - Oxford Journal of Legal Studies

SN - 0143-6503

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