Boris Becker, three-time Wimbledon champion and many people’s favourite German, has been sentenced to two and a half years’ imprisonment for offences under the Insolvency Act 1986.

Assuming Becker hasn’t acquired British citizenship, will he be deported following the conclusion of his custodial sentence?

Automatic deportation

The UK Borders Act 2007 places a duty on the Home Office to make a deportation order in respect of a “foreign criminal”.

A foreign criminal, as defined by the legislation, is a person who is not a British or Irish citizen, who has been convicted of an offence in the UK and sentenced to a period of imprisonment of at least 12 months, and who is not covered by an exception.

One of the exceptions is where (a) the foreign criminal is a European Economic Area national who has permission to stay in the UK under the EU Settlement Scheme, and (b) the criminal conduct took place on or before 31 December 2020: section 33(6B).

Assuming that Becker has permission to stay under the EU Settlement Scheme as a German national, and the conduct leading to the conviction took place on or before 31 December 2020 – and a brief scan of the judge’s sentencing remarks suggest that it did – he should not be in line for automatic deportation under the UK Borders Act 2007.

Which is fortunate given how difficult resistance to deportation under the 2007 Act has become: see What is the law on deporting non-EU foreign criminals and their human rights?

Pre-Brexit protections for EU citizens

On the basis that these assumptions are correct, Becker is instead likely to be considered for deportation under the Immigration (European Economic Area) Regulations 2016 (as saved).

These were the main pre-Brexit rules on the movement – and deportation – of EEA nationals. They still apply to criminal conduct that took place before Brexit kicked in on 31 December 2020, having been “saved” for this purpose by Schedule 3 of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020.

There are three levels of protection against deportation available under these regulations, depending on how long the person has been in the UK and what they have been doing:

1. the basic protection, for those who have not acquired what was previously referred to as a “permanent right of residence”;
2. mid-level protection for those that have acquired “permanent residence”; and
3. a third level, offering protection for those who have been in the UK for a continuous period of ten years prior to the deportation decision

It is difficult to assess which one of these will apply without knowing Becker’s whereabouts and activity in the UK over the years.

The baseline test

But let’s assume that Becker is only able to rely on the basic level of protection. In that case, the Home Office will still need to show that his personal conduct

represent[s] a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

Even this lowest threshold offers greater protection from deportation (by several orders of magnitude) than that provided for under the UK Borders Act 2007 and related legislation. In addition, the decision must also be taken in accordance with the following principles:

(a) the decision must comply with the principle of proportionality;

(b) the decision must be based exclusively on the personal conduct of the person concerned;

…

(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;

(e) a person’s previous criminal convictions do not in themselves justify the decision;

(f) the decision may be taken on preventative grounds, even in the absence of a previous criminal conviction, provided the grounds are specific to the person.

So based on the information we have about the offending behaviour, and assuming that Becker meets only the lowest threshold of protection, the Home Office still faces a much tougher task to effect deportation than if he were not an EEA national, or if the criminal conduct took place after 31 December 2020. As Colin told the Guardian last week, the department may try to argue that the offending continued after that date.

For more detailed information on the applicable tests under the 2016 regulations, see What is the law governing the deportation of EU nationals?

When will we know?

People who appear to meet the criteria for deportation are usually contacted by the Home Office during their custodial sentence and served with a Stage 1 Notice (basically a questionnaire), requiring them to indicate within 20 working days whether they intend to resist deportation, and provide a basis for this if so.

My recent experience is that the Home Office is taking its sweet time in providing these notices, sometimes just before a client’s conditional release date (usually the end of the custodial part of sentence).

Although the Stage 1 Notice gives 20 working days to potential deportees for a response – and to provide evidence – the Home Office might not then make a decision to deport for several months after this.

If a decision were made to deport, then Becker would have a right of appeal to the First-tier Tribunal (Immigration and Asylum Chamber). Appeal proceedings can take several months or years (in the event of onward appeals).

It is usual practice for the Home Office to detain any foreign national being considered for criminal deportation under immigration powers, requiring a bail application for release. If an appeal is pending at the end point of the custodial sentence, or a deportation decision not even made by then (which has been happening recently), then the case for bail would be off to a good start.

So based on the information available publicly, and on the basis that Becker’s case is treated in the same way as any other deportation case – which is probably pretty unlikely – a decision on whether or not the Home Secretary intends to pursue deportation is likely to be taken in the back end of 2023.