Human Rights challenges to the ‘Deport Now, Appeal Later’ scheme

Since the scope of the “Deport now, Appeal later” scheme was expanded from eight to 23 countries, the UK’s ability to remove more foreign nationals at the earliest opportunity, and more rapidly, has widened.

In essence, the scheme provides a mechanism to remove foreign nationals who have been convicted of offences in the UK and who have made a human rights claim against their removal in the UK, by deporting them to their home country before they have exhausted their appeal rights. It is stated that these individuals will be able attend any appeal hearings in the UK remotely via video link.

To what extent does this scheme really reflect and uphold the human rights of these individuals? In 2017, the Supreme Court effectively halted this policy (first introduced in 2014) after it was challenged on human rights grounds, citing that appeals from abroad did not comply with human rights standard.

Former Conservative Justice Secretary Alex Chalk KC expressed concern over this policy and urged Parliament to scrutinise it extremely carefully. His grounds for concern echoed respected legal experts in the field, namely:

1. The risk of return: the ‘Deport Now, Appeal Later’ scheme is potentially at odds with the assurances of the fundamental principle of non-refoulment, which imposes a duty on states not to return individuals to a country where they risk facing torture or degrading treatment. Furthermore, if the appeal is heard only after they have been returned, there is no guarantee that their Article 6 right to fair trial will be upheld in the respective countries.
2. The rights of British Children: this scheme can be criticised for its failure to consider the Article 8 right to private and family life and uphold the duty imposed on the Secretary of State under s55 of the Borders, Citizenship and Immigration Act 2009. In essence, there are concerns that the impact of this scheme does not pay adequate attention or respect to the child’s right to private and family life, nor to their wellbeing when their parents are deported.
3. The voice of the victim: the ‘Deport Now, Appeal Later’ scheme also raises concerns about what justice would look like. Would victims receive the finality of justice when foreign nationals are tried in their home countries, rather than in the UK?

It remains to be seen how this scheme can operate within the confines of the UK’s obligations under the ECHR and Human Rights Act, particularly in light of recent government statements confirming that the UK has no intention of leaving the ECHR.

How Gherson can help

With the fast-moving and ever-changing immigration landscape, we understand how overwhelming and uncertain this process can feel — especially for those now affected by the expansion of the ‘Deport Now, Appeal Later’ scheme. The legal challenges, tight deadlines and remote hearing requirements can leave many unsure of their rights or what their next steps should be.

At Gherson, we guide clients through the key legal routes to recourse, including:

• Judicial Review (JR): A primary means of challenging unlawful Home Office decisions on deportation grounds before the courts.
• Injunctions: Emergency court orders that can halt deportation removals while legal challenges proceed.
• Appeals: Where applicable, we assist in pursuing human rights or asylum appeals.

Our well-experienced team specialises in initiating Judicial Reviews and complex challenges against the Home Office on human rights grounds, including politically sensitive and complex litigation. We provide expert immigration advisory services to help clients understand and navigate this difficult process effectively.

Our team is here to provide clear, up-to-date legal guidance and practical support tailored to your situation. If you would like to discuss your circumstances, please do not hesitate to contact us for advice, send us an e-mail, or, alternatively, follow us on X, Facebook, Instagram, or LinkedIn to stay-up-to-date.

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please do not hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

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