Notification of convictions to Immigration and Nationality Directorate (IND)
Home Office circular 070 / 2004 Notification of convictions to Immigration and Nationality Directorate (IND) Broad subject: Immigration…
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Home Office circular 070 / 2004
Notification of convictions to Immigration and Nationality Directorate (IND)
- Broad subject: Immigration and Nationality
- Issue date: Wed Dec 01 00:00:00 GMT 2004
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From:
IMMIGRATION AND NATIONALITY DIRECTORATE Enforcement Policy Unit -
Linked circulars:
013/1998 -
Copies sent to:
Association of Chief Police Officers in Scotland,Association of Chief Police Officers (England,Wales and Northern Ireland),The Court Administrator - Sub category: Immigration offences
- Implementation date: Wed Nov 17 00:00:00 GMT 2004
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For more info contact:
Enforcement Policy Unit 020 8760 2481 -
Addressed to:
Chief Officers of Police (England and Wales)
This circular is to clarify and update the information contained in Home Office Circular 13/1998 issued on 13 August 1990.
It advises on:
* Liaison with the Immigration and Nationality Directorate (IND)of the Home Office
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Reporting of convictions to IND
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Deportation procedures
Liaison with the Immigration and Nationality Directorate of the Home Office
- IND has a dedicated contact point for police forces wishing to ascertain the immigration status of a foreign national who is subject to control under the Immigration Act 1971,as amended.
Further advice on this is given at Annex A of this instruction.
Notification of convictions to IND
- The Secretary of State has the power to deport a foreign national who is subject to immigration control if he or she has been convicted of an offence, which is punishable by a term of imprisonment. NB A foreign national who is settled in the United Kingdom within the meaning of the Immigration Act 1971 (i.e. has indefinite leave to enter or remain) is not exempt from deportation. For this purpose the Secretary of State needs to receive reports from the police in any case in which the court has recommended that the person be deported and also in the following cases even if no recommendation has been made:
(a) the conviction was for an offence under the Immigration Act 1971;
(b) either a custodial sentence (of whatever length and whether suspended) or a hospital order (under Section 37 of the Mental Health Act 1983) was imposed for an offence involving violence against the person or drugs;
(c) a custodial sentence of 12 months or more was imposed (whether suspended or not), regardless of the nature of the offence;
(d) where the conviction of the subject follows three (or more) previous convictions for any offence(s) in the United Kingdom in the preceding 5 years.
The police also have discretion, where there are exceptional circumstances, to report cases falling outside these criteria.
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The early receipt of conviction reports is vital to the consideration of these cases, and forces are therefore urged to forward reports without delay. Failure to do this can lead to difficulties where enforcement action is decided on because this action may not be completed before the release date of the prisoner.
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The standard report form, which was introduced by paragraph 3 of Home Office circular 104/1981, should continue to be used for submitting reports to IND. A copy of the form is attached at ANNEX B for ease of reference. Reports in respect of those recommended for deportation or sentenced to more than twelve months imprisonment should be forwarded to the Court Collators, Criminal Casework Team, 8th Floor, Sunley House, Bedford Park, CROYDON CR0 2AP. All other reports should be sent to the Document Management Centre, 7th Floor, Lunar House, Wellesley Road, Croydon Surrey CR9 2BY.
Deportation on the recommendation of a court -section 3(6) of the Immigration Act 1971
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Experience has shown that a court recommendation provides the most efficient and effective means of securing the deportation of those subject to immigration control who are aged 17 or over and who have been convicted of a criminal offence in the United Kingdom. Police officers should bear this in mind when dealing with offenders subject to immigration control.
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By virtue of Section 6(2) of the 1971 Act the courts are unable to make a recommendation for deportation unless the person has been served with a notice warning him or her of their liability to deportation. This notice must be served at least seven clear days before sentence is imposed. A number of recommendations have been rendered invalid by failure to observe this requirement.
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The service of a notice of liability to deportation will usually be the duty of the police. It is suggested that a notice should normally be served when the person who appears to be eligible to be recommended for deportation is charged with an offence punishable with imprisonment. The court has power to grant an adjournment after convicting an offender for the purpose of enabling a notice to be served on him or her, or to allow the necessary 7 days to elapse but this is frustrating for both the police and courts and can be avoided by the early service of the notice.
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The notice must explain that British citizens and certain categories of foreign nationals are exempt from deportation. It must also explain the effect of section 3(8) of the Immigration Act 1971 (which lays on the person concerned the burden of proof that he is a British citizen or is entitled to any exemption under the Act). A suggested form of notice (IM3 and IM3A) is given at Annex B and C to this circular.
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Police officers should make every effort to avoid serving a notice on Commonwealth or Irish citizens who, as explained in ANNEX C, are exempt from deportation under the provisions of Section 7 of the Immigration Act 1971. In cases of doubt, advice may be sought from the Immigration Status Enquiry Unit.
Deportation on conducive grounds
- If a court does not recommend deportation the Secretary of State has the power under section 3(5)(a) of the Immigration Act 1971 to deport a person who is subject to immigration control if he deems it conducive to the public good to do so. Again, Commonwealth citizens and citizens of the Irish Republic who have been ordinarily resident here since before 1 January 1973 are not liable to be deported on this ground.
European Economic Area (EEA) nationals
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A list of the countries, which make up the EEA is at ANNEX D. EEA nationals are not exempt from deportation and can be recommended for deportation by the court. However, the deportation of EEA nationals is governed by the Immigration (European Economic Area) Order 1994.They can only be deported on grounds of public policy, public security or public health. In practice they are dealt with under section 3(5)(a) of the Immigration Act 1971 but any recommendation by the court will be taken into account.
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Reports on EEA nationals should be submitted in accordance with the criteria set out in paragraph 3 above.
Enquiries
- Enquiries about this circular should be addressed to:
Enforcement Policy Unit
United Kingdom Immigration Service
9th Floor Green Park House
Wellesley Road,
Croydon CRO 2AJ
Tel: 020 8760 2366
Fax: 020 8760 2941 Email: EPU.Enquiries@homeoffice.gsi.gov.uk
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