REMOVAL/DEPORTATION/EXTRADITION

Created on: February 5, 2024
Modified on: February 22, 2024

Removal

Removal from the country is a type of administrative penalty imposed on foreign nationals for committing administrative offenses under the national laws “On Administrative Offenses” of the respective countries of the European Union, and consists in offering a foreign national to voluntarily leave the territory of the country due to violation of the terms of stay, committing offenses, providing false information and/or forged documents or illegal stay in the country. Removal should be distinguished from deportation, because despite formal similarities, these concepts differ in legal nature and grounds for application.

The relevant authorized body makes a decision on removal from the country only after analyzing the specific situation and the absence of a risk of failure to fulfill the foreigner’s obligations to voluntarily leave the country.

Removal, unlike deportation, is accompanied by returned voluntarily to their countries of origin.

A foreign citizen prosecuted for this type of punishment is restricted from entering this country for the relevant period, which is determined by the national legislation of the country that issued the removal decision.

The removal of a foreign citizen from any country of the European Union is usually accompanied by the entry of information about him/her into the Schengen Information System and, subsequently, provides for a further temporary prohibition on entry not only to that country, but also to the countries of the European Union, as well as to countries that use the SIS (Schengen Information System).

Deportation

Deportation  is the action of deporting a foreigner from a country usually under guard, in cases where the foreign national grossly violates the legislative acts of the country concerned and the foreign national’s stay in the country threatens the national security and integrity of the country.

Deportation is carried out by a court decision only on the grounds provided for in the relevant legislative acts of the country. Reasons for this include involvement in criminal activity, the end of a prison sentence, overstaying a visa, or actions which cause the loss of legal right to remain.

A person arrested and detained under paragraph (1) may be placed on a ship, railway train, road vehicle or aircraft about to leave the State by an immigration officer or a member of the Garda Síochána, and shall be deemed to be in lawful custody whilst so detained and until the ship, railway train, road vehicle or aircraft leaves the State.

The Minister for Justice and Equality can legally issue an Irish deportation order against anyone who isn’t an EEA national and is in Ireland without lawful permission.

The Minister can refuse you a refugee protection declaration or Temporary Protection status if the person:

  • has committed a crime against peace, a war crime or a crime against humanity
  • is guilty of acts contrary to the purposes and principles of the United Nations
  • has committed a serious non-political crime outside of Ireland
  • was given refugee status on the basis of false or misleading information
  • poses a danger to society or the security of the state.

 

The Minister will notify you of their intention to make the order. The notification normally offers you the option to voluntarily leave the State before a deportation order is made.

But if you have been convicted of a criminal offence or are considered a threat to national security, you cannot leave voluntarily. This means that you will be issued with a deportation order without the possibility of voluntary leaving and you will not be able to return to Ireland.

In considering any such representations, the Minister is required to consider a number of statutory factors, including any ‘humanitarian’ issues arising. Along with these discretionary factors, where the making of a deportation order would result in a breach of rights, either under the Constitution or the European Convention on Human Rights, the order cannot be made.

Deportation is not applied to the following categories of foreign citizens and stateless people:

  • to persons who have applied for refugee status before the end of the consideration of their application;
  • persons recognised as refugees or asylum seekers
  • to persons who have been refused refugee status or asylum, have lost their refugee status or have been revoked of their refugee status and cannot be deported against their will to the territory of a state where their life or freedom is threatened by persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion
  • as well as employees of diplomatic and consular missions and other persons enjoying diplomatic immunity.

 

Each of these people has the opportunity to file an appeal within a certain period of time.

It should be noted that there can be no group removal or deportation.

If any person is subject to removal or deportation, no person may be deported together with him or her who has not been adjudicated, regardless of their own actions or financial circumstances.

 

Extradition

Extradition the transfer of someone from one country to another for the purpose of prosecution or punishment for an offence of which they have been convicted.

The special role of international law in extradition should be noted. Extradition treaties between Ukraine and other states are based on 2 main documents:

  • The European Convention on Extradition with Additional Protocols
  • Convention on Legal Aid and Legal Relations in Family, Civil and Criminal Cases.

 

Extradition and the penalty are determined in the Criminal Procedure Code of Ukraine in accordance with the criminal offence committed. The stages and peculiarities of extradition are described in Chapter 44 of the Criminal Procedure Code of Ukraine.

Extraction consists of the following steps:

  • make requests to foreign competent authorities for surrender (extradition), temporary extradition or transit of a person;
  • arrange extradition examinations;
  • consider and decide on requests from foreign competent authorities for surrender (extradition), temporary extradition or transit of a person;
  • arrange intake and referral of persons to be surrendered (extradited), temporarily extradited or transited.

 

A request for extradition may be submitted only provided that at least one of the offences for which an extradition is requested may be punished with at least one year imprisonment.

The key document for initiating the extradition procedure is a formal request, i.e. an extradition request. The only proper basis for making this request is an accusation, suspicion or conviction of a criminal offence. In some cases, other states may refuse extradition.

After the state has authorised the extradition of a person upon request, that person must be returned to his or her home country within 2 months. This period may be shorter.

In some cases, in addition to extradition, so-called “urgent requests” to another state for preventive measures may be applied. For this purpose, a court order for detention is sufficient. In this case, the state must express its readiness to extradite in the future. Such a request must be sent within 2 months of the person’s detention.

 

The International Transfer of Sentenced Persons

If you are a foreign national serving a term of imprisonment in Ireland, you can apply for a transfer to complete your sentence in your home state.

Ireland, like Ukraine, is a signatory to the Council of Europe Convention on the Transfer of Sentenced Persons. The Treaty, provides for the extradition of non-nationals convicted of a criminal offence to their home country. The central authority competent to deal with such issues is the Ministry of Justice.

The main conditions for the transfer of a sentenced person are:

  • You must be regarded as a national of the country you wish to be transferred to;
  • Your sentence must be final;
  • The sentence must be of a duration of at least six months at the time of receipt of the request for transfer, or be indeterminate;
  • If the convicted person or, with due regard to his/her age or physical or mental condition, the legal representative of the sentenced person agrees to the transfer;
  • The crime for which you were convicted must also be recognised as a crime in your home country;
  • the state of sentencing and the state of execution must agree to the transfer of the sentenced person.

 

In addition, the provisions of bilateral investment treaties also require that sentenced persons be compensated for material damage caused by the crime.

A request for the transfer of a sentenced person may be made by either the state of sentencing or the state of execution of the sentence. The issue can be initiated by the sentenced person (the request of the sentenced person must be set out in writing and duly certified by the institution where the person is serving his or her sentence), and in accordance with the provisions of bilateral agreements, also by relatives of the sentenced person.

For a transfer to take place, there must be 3-way consent. The prisoner, the sentencing country and the prisoner’s home country must all agree to the transfer.

Any sentenced person who may be eligible for transfer under the convention shall be informed, by the sentencing State, of the convention’s substance.

The sentenced person’s consent to his transfer is one of the basic elements of the transfer mechanism established by the convention. It was therefore deemed necessary to impose an obligation on the sentencing State to ensure that the consent is given voluntarily and with full knowledge of the legal consequences which the transfer would entail for the person concerned, and to give the administering State an opportunity to verify that consent has been given in accordance with these conditions.

Requests and replies must be made in writing. They must, in principle, be transmitted between the respective Ministries of Justice. Article 6 States which supporting documents must be provided, on request, by the administering State to the sentencing State, and by the sentencing State to the administering State.

The Ministry of Justice of Ukraine conducts an appropriate examination of the received materials for compliance with the mandatory conditions of transfer and makes a decision on the transfer/admission of a sentenced person from/to the territory of Ukraine for further serving his/her sentence. The relevant order is given to the Ministry of Foreign Affairs of Ukraine and the State Department of Ukraine for the Execution of Sentences, which carry out the transfer of the sentenced person at the border of Ukraine and his/her transfer within the territory of Ukraine. The Ministry of Justice of Ukraine is informed of the date of transfer of the sentenced person.

Where the request is refused, the Ministry of justice of Ukraine shall inform the requesting foreign authority thereon, with explanation of reasons for refusal.

The sentenced person shall be informed of the measures taken in connection with the consideration of his/her transfer.

The issue of recognition and enforcement of a sentence delivered by a court of foreign state in part of a civil action shall be disposed as prescribed by the Civil Procedure Code of Ukraine.

If the administering State opts for the “continued enforcement” procedure, it is bound by the legal nature as well as the duration of the sentence as determined by the sentencing State (paragraph 1): the first condition (“legal nature”) refers to the kind of penalty imposed where the law of the sentencing State provides for a diversity of penalties involving deprivation of liberty, such as penal servitude, imprisonment or detention. The second condition (“duration”) means that the sentence to be served in the administering State, subject to any later decision of that State on, for example, conditional release or remission, corresponds to the amount of the original sentence, taking into account the time served and any remission earned in the sentencing State up to the date of transfer.

n cases provided for by the international treaty, ratified by the Verkhovna Rada of Ukraine, if a sentence of foreign court decreed a punishment in the form of imprisonment, the Ministry of Justice of Ukraine shall send a certified copy of the request as specified in this Article, to a public prosecutor to request an investigating judge to impose a restraint measure until the execution of the sentence of a foreign court is decided.

The Supreme Court of Ukraine sends the materials to the relevant court of Ukraine at the place of detention of the sentenced person, which makes a court decision and further serving of the sentence is carried out in accordance with Ukrainian legislation.

It should be noted that pardon, amnesty or commutation of the sentence may be granted by either the sentencing or the administering State, in accordance with its Constitution or other laws (Article 12 of the Convention).

The term “review” within the meaning of Article 13 covers also proceedings which in some States may result in a new examination of the legal aspects of the case, after the judgment has become final.

In accordance with Article 15 of the Convention the administering State inform the sentencing State on the state of enforcement: a when it considers enforcement of the sentence to have been completed (e.g. sentence served, remission, conditional release, pardon, amnesty, commutation); b if the sentenced person has escaped from custody before completion of the sentence; and c whenever the sentencing State requests a special report.

 

Legislative acts: