CA-2024-001157 - [2025] EWCA Civ 1452

Decision 1

In paragraph 11 of decision 1 the Secretary of State referred to paragraphs A362 and A398-399D of the Rules which were said to ‘set out the practice to be followed by officials acting on behalf of the Secretary of State when considering an Article 8 claim, made in the context of an application to revoke a deportation order, from a person who has been deported on the basis of criminal convictions. These rules reflect Parliament’s view of what the public interest requires for the purposes of Article 8(2)…set out at sections 117A-117D in Part 5A of [the 2002 Act]…’

The Secretary of State summarised Mr Nguyen’s article 8 claim in paragraph 12 of decision 1. The maintenance of the Order was conducive to the public good and in the public interest because of Mr Nguyen’s conviction. Paragraph 398 required the Order to be maintained unless an exception to deportation applied (paragraph 13). The Secretary of State set out the exceptions (in paragraphs 399(a) and 339(b)).

Neither applied, for the reasons given in paragraphs 15-16 and 20-25, respectively. In particular the Secretary of State did not accept it would be unduly harsh for W to live in Vietnam with Mr Nguyen. She had entered the United Kingdom as an illegal entrant with an 8-year old boy, when she was 32 years old. Nor did the Secretary of State accept that it would be unduly harsh for her to stay in the United Kingdom without Mr Nguyen.

The Secretary of State noted in paragraph 21 that Mr Nguyen claimed to have entered the United Kingdom in 2003, after W and their son claimed to have entered (2002). He had nevertheless claimed asylum as a sole applicant on 11 July 2003, the very day on which W had separately claimed asylum. He had claimed to have no family in the United Kingdom.

For the reasons given in paragraphs 27-34, the Secretary of State did not accept that Mr Nguyen met the private life exception. In particular, there were no insurmountable obstacles to his reintegration in Vietnam.

In paragraphs 35-36, the Secretary of State said that for there to be ‘very compelling circumstances’ Mr Nguyen would need to provide evidence of a ‘very strong’ article 8 claim. In paragraphs 37-46 the Secretary of State considered the public interest factors supporting Mr Nguyen’s deportation. The Secretary of State concluded that Mr Nguyen’s deportation would not breach his article 8 rights.

The Secretary of State then considered the framework in the Rules for revoking a deportation order (paragraphs 390, 390A, 391 and 391A). The conclusion was that Mr Nguyen had not provided evidence of the ‘very strong’ article 8 claim which would be necessary to outweigh ‘the significant public interest in maintaining’ the Order.

Determination 1

In determination 1, the F-tT allowed Mr Nguyen’s appeal against decision 1, on article 8 grounds. The F-tT found that he had maintained family life with W, despite their long separation. W had stayed in the United Kingdom when Mr Nguyen was deported to Vietnam. They had kept in contact and W had visited Vietnam regularly. The F-tT accepted that Mr Nguyen was remorseful and that there was little risk that he would offend again were he to return to the United Kingdom.

The F-tT referred to TZ (Pakistan) v Secretary of State for the Home Department [2018] EWCA Civ 1109 at paragraph 34. It started by considering whether Mr Nguyen met the relevant provisions of the Rules, noting that the Secretary of State had failed to apply the relevant provision, which the F-tT identified as paragraph 391. It said that the assessment in paragraph 390 must be made ‘against the correct standard’. It referred to paragraph 28 and 29 of EYF (Turkey) v Secretary of State for the Home Department [2019] EWCA Civ 592; [2019] 4 WLR 69.

Paragraph 29 of EYF says that once ten years has elapsed from the making of a deportation order, it is easier to argue that the balance has shifted in favour of revocation ‘on the facts of a particular case…but that does not mean that revocation thereafter is automatic or presumed…[it] will depend on the facts of the particular case’.

The F-tT thought that paragraph 398 ‘on which the other paragraphs mentioned hang’ implies that it only applies where a deportation has not yet happened (paragraphs 27 and 28). The F-tT also thought that it faced ‘a rather difficult circular argument’. It resolved that in favour of the conclusion that if the relevant provisions of the Rules are satisfied, that reduced the public interest in immigration control (paragraphs 28-30).

That led to a further issue. The public interest in immigration control was not the only public interest in issue: there was also the public interest in deportation. The F-tT quoted section 117C of the 2002 Act (paragraph 31). Mr Nguyen’s primary submission was that he met Exception 2. After an exchange with the F-tT, Mr Nguyen’s counsel submitted that ‘perhaps section 117C simply does not apply to revocation of deportation orders’.

This was a question of statutory construction. The F-tT quoted section 1117A. For section 117C to apply, the appeal would need to be a case ‘concerning the deportation of foreign criminals within the meaning of subsection (2)(b)’. The F-tT quoted a pocket dictionary definition of the verb ‘deport’. If a person has been the subject of a deportation order and has left the United Kingdom, ‘the act of forcing them to leave has already happened’. It would be different if they were still in the United Kingdom. The F-tT considered that this meant that an application to ‘come back’ is not covered by section 117C. That approach was supported by the words of section 117C, which ‘clearly’ suggest ‘that a deportation has not yet occurred’. The F-tT referred to section 117C(3) and (6) did not refer to the continuation of a deportation order. Section 117C(7) referred to ‘a decision to deport’. That was not the subject of the appeal, which was against a decision not to revoke a deportation order (paragraph 39).

This was also supported by the lack of any reference to section 117C in EYF (Turkey) (paragraph 41). The upshot was that the Rules contain the Secretary of State’s assessment of the public interest in not revoking a deportation order. ‘Her view, expressed in her policy, is that consideration will be given on a case-by-case basis to whether the deportation order should be maintained. There is no presumption either way’ (paragraph 42). Ms Smyth told us that she had taken instructions, but had not been able to find out why there is no reference to Part 5A in EYF (Turkey), despite the fact that it was in force at the relevant time.

The Secretary of State had applied the incorrect threshold in decision 1. The key factor was that she had not considered the time which had passed since Mr Nguyen was deported. She had applied a presumption and not a case-specific analysis. Decision 1 took points against Mr Nguyen as if he had not been deported (the references to the exceptions in paragraph 399 of the Rules, which apply to deportation in the future; the reference to a ‘significant public interest in deporting you’; and a reference to the regime in the 2007 Act which did not apply to Mr Nguyen (paragraph 45).

The Secretary of State had not considered the effect of the passage of time on the public interest. Mr Nguyen had been ‘in a sense, a model deportee’. He pleaded guilty. He did not challenge his deportation. He supported himself in Vietnam and had not committed any more crimes. He waited for ten years before applying for the revocation of the Order. If he could not succeed, it was hard to see who could (paragraph 46).

The F-tT then tried to remedy those errors. In paragraph 49 it accepted that there was ‘clearly a public interest in deporting foreign criminals. Deportation would be meaningless without a period of exclusion afterwards’.

The F-tT accepted that there was still a public interest in deportation even when there is no risk of re-offending. But paragraph 391 clearly implied that that interest ‘must reduce over time’. There would otherwise be a presumption that a deportation order would be maintained after ten years which was not the Secretary of State’s policy. If conduct after deportation was not relevant, that would have ‘the perverse effect of encouraging illegal entry to the UK by people subject to a deportation order’ (paragraph 51).

‘Weighing against the interest in maintaining the deportation order’ (paragraph 52) was the life which Mr Nguyen would prefer to live with W and their son in the United Kingdom. The F-tT acknowledged that the interference had not been ‘grave’. There had been regular visits. A had a house and close family in Vietnam. A’s son had had an unhappy childhood but ‘These are the sad but justified consequences of the need to deport foreign criminals’ (paragraph 53).

The F-tT then considered the points listed in paragraph 390 of the Rules (paragraphs 56-64).

The F-tT acknowledged in paragraph 56 that ‘none of this is very compelling’. Mr Nguyen’s deportation had not been ‘unduly harsh’ within the meaning of section 117C. But that was not the question. The question was whether the Order should be maintained.

The F-tT had already considered ‘the level of public interest in maintaining’ the Order because it was made as a result of A’s crime (paragraph 58). The effect of the relevant representations was that A and W and their son would like to be reunited. The interests of the community did not relate to the maintenance of effective immigration control because of Mr Nguyen’s compliance. The community interest in public concern and deterrence was tempered by the public interest in allowing people’s conduct ‘after deportation to improve the prospects of the deportation order being revoke [sic]. It is in the interests of the community for that to happen as well’.

The F-tT concluded that Mr Nguyen satisfied the Rules and that the Order should not be maintained under paragraph 391 (paragraph 61). It referred again to TZ (Pakistan). The fact that Mr Nguyen met the provisions of the Rules meant that the public interest in immigration control ‘in the present case is zero because the rules are satisfied’ (paragraph 63). In paragraph 64 the F-tT acknowledged that TZ (Pakistan) was not a deportation case. There was therefore an additional factor against Mr Nguyen; the public interest in deportation. The F-tT found that that was ‘significantly reduced’. The F-tT added, ‘Looking at the overall balance, between that weak public interest and level of interference with [Mr Nguyen’s] family life, I find the maintenance of [the Order] not to be proportionate’ (paragraph 64).

Determination 2

The F-tT heard appeal 2 after the F-tT’s decision in appeal 1, but before the Secretary of State’s appeal against determination 1 had been decided.

In determination 2, the F-tT allowed Mr Nguyen’s appeal against decision 2. It held, in short, that the effect of determination 1 was to set aside the Order and to remove the suitability grounds for refusing entry clearance on which the Entry Clearance Officer had relied in refusing entry clearance.

The grounds of appeal from the F-tT to the UT

The grounds of appeal complained that the F-tT had not had regard to paragraphs 390A, 399 and 399A of the Rules. Section 117C is primary legislation and mirrors those provisions, and, said the grounds of appeal, the F-tT was bound by section 117C. The F-tT, the grounds continued, by holding that section 117C does not apply in a case where deportation has already happened was ‘seeking to rely on semantics’. The Secretary of State did not understand this reasoning, given the terms of section 117A(2)(b). The Secretary of State said that the F-tT’s reasoning was ‘nonsensical’. The grounds supported this argument by quoting the relevant paragraphs of the Rules, and repeated that they mirrored section 117C. Paragraph 11 of the grounds added that the F-tT had had no regard to the principle that article 8 does not give people a choice about where they should enjoy their family life.

Permission to appeal from determination 1

In an order dated 26 July 2022, the F-tT gave the Secretary of State permission to appeal against determination 1 on all grounds.

Permission to appeal from determination 2

In an order dated 13 November 2023, the F-tT extended time for appealing against determination 2, despite what it regarded as significant delay by the Secretary of State, and gave the Secretary of State permission to appeal against determination 2 on all grounds.

The UT’s error of law determination

In determination 3, the UT held that the F-tT erred in law in determination 1 and in determination 2. In paragraph 5, the UT said, of determination 1, that the F-tT’s approach was ‘set out at considerable length’. It was not necessary to ‘rehearse that in detail’. The UT, reducing that analysis to ‘its bare bones’, described the F-tT as having decided that Part 5A of the 2002 Act, ‘as amended (specifically section 117C thereof) did not apply to [Mr Nguyen’s] case: paragraphs 42 and 56. Instead’ the F-tT had decided that paragraph 390 of the Rules governed its approach if a person applied for revocation of a deportation order from abroad ‘(paragraph 56)’.

The grounds of appeal argued, ‘in essence that [the F-tT] had been wrong to disapply section 117C of the 2002 Act’ (paragraph 7). The UT held, in paragraph 14, that the F-tT was wrong to have concluded that Part 5A of the 2002 Act ‘(which of course included section 117C)’ did not apply to ‘cases concerning the revocation of a deportation order’. The UT referred to a decision of a Presidential Panel of the UT in Binaku (s.11 TCEA: s.117C NIAA; paragraph 399D) [2021] 00034 (IAC) (‘Binaku’). The headnote of Binaku made clear that Part 5A applies to the whole ‘deportation regime’, including revocation applications from abroad.

Mr Nguyen’s counsel accepted that the F-tT had made a mistake (paragraph 15), but submitted that the error was immaterial. The UT disagreed, for two main reasons.

First, the ‘clear inference’ from the findings in paragraph 56 (see paragraph 53, above) was that if the F-tT had applied section 117C, it would have found against Mr Nguyen (paragraphs 16 and 17).

Second, the question which the F-tT asked itself, whether deportation should be maintained by reference to paragraph 390 of the Rules, was ‘materially different from’ any question under section 117C (paragraphs 18 and 19). There was no express ‘monetary’ [this must be a mistranscription of ‘mandatory’] ‘consideration of the public interest in deportation, or the need to show very compelling circumstances if neither of the two exceptions are satisfied’ (paragraph 19).

The UT preserved the F-tT’s findings of fact about the existence of family life, Mr Nguyen’s remorse, and his low risk of re-offending (paragraph 22).

The error of law in determination 2 was that the F-tT had treated determination 1 as the last word on the existence of the Order and on the related suitability issues for the purposes of entry clearance. When determination 2 was promulgated, permission to appeal had been granted against determination 1.

The UT’s re-making of the decision

The UT re-made the decision in determination 4. Mr Nguyen was represented by the counsel who had represented him in the F-tT. The Secretary of State was represented by a Senior Home Office Presenting Officer. In paragraph 8, the UT recorded a concession by Mr Nguyen’s counsel that the F-tT had erred, and her submission that the error was immaterial. The UT listed the evidence it had considered in paragraph 17. W and Mr Nguyen’s adult son gave evidence. There were three witness statements from each. The UT recorded the parties’ submissions in paragraphs 19-23.

The UT described the relevant legal framework in paragraphs 24-26. It set out sections 117A and 117C of the 2002 Act and, in paragraph 25, the relevant part of the headnote of Binaku. The UT held in Binaku that in article 8 appeals the tribunal must apply Part 5A of the 2002 Act rather than the provisions of the Rules. It also held that a foreign criminal who has entered the United Kingdom in breach of a deportation order is subject to the same regime as those who have not yet been removed and those who have been removed but have applied for a deportation order to be revoked. The phrases ‘cases concerning the deportation of foreign criminals’ in section 117A(2) and ‘a decision to deport a foreign criminal’ in section 117C(7) are to be interpreted accordingly. Paragraph 339D of the Rules is irrelevant to this exercise, which begins and ends with Part 5A of the 2002 Act. In paragraph 26 it referred to HA (Iraq).

The UT considered, first, the application of the test in Exception 2 (section 117C(5) of the 2002 Act). Mr Nguyen and W had now lived apart for a long time. The UT had no doubt that that had been emotionally and practically difficult, in part because they had seen their son grow up without a father in his daily life. The UT took ‘full account of the cumulative history of the separation’ (paragraph 34). It concluded, nevertheless, that if W were to stay in the United Kingdom, that would not be unduly harsh. She was ‘maintaining a reasonable life in the United Kingdom’. She had a job, was well and had adapted to life without Mr Nguyen. They were in frequent telephone contact and they had kept in regular direct contact. She had her son for support (paragraph 35).

The UT acknowledged that W had been in the United Kingdom for a long time and that she had strong family ties with her son and with his child. The UT took her British citizenship into account and its associated rights and privileges. W was ‘clearly familiar with Vietnamese society and culture’. She speaks the language and had no health problems which could not be accommodated in Vietnam. She would lose daily contact with her son and grandson but would ‘gain the presence and support of’ Mr Nguyen. There was no evidence that she would not be able to live with him in Vietnam. It would not be unduly harsh for her to move to Vietnam and live there with Mr Nguyen (paragraph 38). Mr Nguyen could not, therefore ‘bring himself within the exception under section 117C(5) of the 2002 Act (paragraph 39). Section 117C(5) did not apply to the adult son (paragraph 40).

In paragraphs 41-56 the UT considered whether the very compelling circumstances test was met. That test was hard to meet. The UT had taken all the circumstances into account. It made an assessment of the relevant considerations, in no particular order. The deportation of foreign criminals is in the public interest (section 117C(1)). That public interest applies before and after removal.

The UT gave ‘some weight’ to Mr Nguyen’s long separation from W and their son, but it was ‘limited’. Such a separation was inevitable in a revocation case. The separation had been mitigated by the meetings between W and Mr Nguyen in the meantime. The UT took into account its conclusions on the application of the unduly harsh test. A foreign national who commits offences in the United Kingdom makes himself liable to deportation. Accepting the consequences of the deportation order and not appealing against it is not a matter of ‘doing the right thing’ because leaving the United Kingdom whether before or after an appeal is to be expected. There is no absolute right to be re-admitted. The foreign criminal must apply for revocation. An appeal against a refusal to revoke a deportation order engages the tests in section 117C. Although on one view Mr Nguyen could be commended for waiting before applying for revocation, that factor did not attract much weight in the UT’s assessment. It was not a ‘very compelling circumstance’ either on its own or cumulatively.

The effect of the legislation which applied to appeal 1 was that deportation (including maintaining exclusion once a deportation has taken place) is ‘in the public interest as a matter of immigration control’. It is not a ‘punishment’. The order would not be maintained indefinitely. An order can be revoked, albeit subject to ‘stringent tests’. The UT gave no weight to the argument that Mr Nguyen would always be prevented from re-entering the United Kingdom.

The UT took into account that Mr Nguyen satisfied nearly all the requirements of Appendix FM. The UT gave that no material weight because the suitability requirement (which was linked to the success of appeal 1) was ‘highly relevant’. The provisions of the Rules dealing with the revocation of deportation orders were for the Secretary of State’s caseworkers to apply. Binaku made clear that if there is an appeal against the refusal to revoke a deportation order, Part 5A, rather than the Rules, governs ‘the judicial decision-making process’. In any event, the provisions of the Rules which were current at the date of the UT hearing ‘essentially reflect’ section 117C(5) and section 117C(6). The UT referred to section 4 of Part 13. In this case, the outcome under the Rules would be no different.

The UT acknowledged the low risk of re-offending posed by Mr Nguyen and his genuine remorse. It gave some weight to the former, but none to the latter. The former was but one factor among many, and not the most important. ‘Deterrence and public confidence in giving effect to the deportation process are significant factors’.

The UT also took into account the rights of Mr Nguyen’s adult son and his grandchild. The UT accepted that the son could not be expected to move to Vietnam, given his ties to the United Kingdom. He had nevertheless been able to visit Mr Nguyen in Vietnam ‘fairly regularly’. Those visits could continue and the grandson could also visit. The best interests of the grandchild could be met by frequent indirect contact and by visits to Vietnam. The rights of the members of Mr Nguyen’s family in the United Kingdom did not on their own, or together, amount to very compelling circumstances.

The Secretary of State’s guidance on revocation added nothing to Mr Nguyen’s case (paragraph 54). The UT commented, in paragraph 55, that the F-tT had found that there were no very compelling circumstances. It followed that, if the F-tT had applied Binaku, it would have dismissed appeal 1.

The UT’s overall conclusion (paragraph 56) was that there were no very compelling circumstances: in other words, the strong public interest in maintaining deportation was not outweighed ‘by factors weighing in’ Mr Nguyen’s ‘favour’. The UT had sympathy with Mr Nguyen and with the members of his family, but was ‘obliged to apply the facts to the appropriate legal framework. The framework is demanding for [Mr Nguyen], as it is for anyone else in his situation’ (paragraph 57).

The UT had also said, earlier in determination 4, that the immigration health surcharge (£1560) should be refunded immediately (paragraphs 32 and 33).

This appeal

Section 5 of the Appellant’s Notice is headed ‘Other information required for the appeal’. Under that heading, the form asks the appellant to ‘set out the order (or part of the order) you wish to appeal against’. The text identifies determination 4 by its date and continues ‘whereby [the UT] set aside the previous [the F-tT] decision and remade the decision dismissing the appeal’. Counsel helpfully agreed a note after the hearing. One of the topics it deals with is which decisions of the UT are appealable. The effect of the authorities to which the parties referred (VOM (Error of law – when appealable) Nigeria [2016] UKUT 00410, AA (Iraq) v Secretary of State for the Home Department [2017] EWCA Civ 944 [2018] 1 WLR 1083and Terzaghi v Secretary of State for the Home Department [2019] EWCA Civ 2017) is that an appellant cannot appeal to this court against a determination of the UT which identifies an error of law in a determination of the F-tT if the UT retains the decision in order to re-make it. An appellant can only appeal against such a determination if the decision is remitted to the F-tT, as, at that point, the UT is functus officio. If the UT retains the case and has re-made the decision, the error of law decision and the re-making merge in one decision for the purposes of any appeal to this court. Having considered the text of section 5 in the light of those authorities, I consider that Mr Nguyen appeals to this court against determination 3 and against determination 4.

The grounds of appeal

The first ground of appeal is based on two suggested errors of law by the UT. The first is the UT’s conclusion that section 117C applied to Mr Nguyen’s case. The second, linked to the first, is the UT’s decision to set aside determination 1. The second ground of appeal is that the UT failed to give ‘any substantial weight’ to the passage of time between the date of the Order and the date when Mr Nguyen applied for the Order to be revoked. The third ground of appeal is the Rules are relevant to any article 8 assessment, and the fact that Mr Nguyen met the provisions of the Rules was ‘arguably’ a ‘very compelling circumstance’ for the purposes of section 117C(6).

The submissions

Mr Symes argued, under ground 1, that the concession recorded by the UT in paragraph 8 of determination 4 was wrong. I accept that if the UT did err in law, counsel’s concession in the UT does not enable us to ignore or condone any error of law by the UT. By the end of the submissions, it became clear that the issues on this appeal included what error of law the UT identified in determination 1, and depending on what that error was, whether the F-tT had erred in that way, and, if so, whether that reasoning was wrong in law.

In answer to a question from Nugee LJ, Mr Symes accepted that this is a case ‘concerning the deportation of a foreign criminal’ and that, as a consequence of the words in section 117(A)(2)(b), Part 5A does apply to this case. He submitted, nevertheless, the language of section 117C is ‘future-looking’ and cannot apply to a case in which an appellant has already been deported. He relied in particular to section 117C(4)(c) and to section 117C(5), and on the reference to ‘a decision to deport’ in section 117C(7). In answer to a further question from Nugee LJ, he accepted that section 117C would apply to an application to revoke a deportation order by a person who had not yet been deported. He submitted that the UT had misunderstood the F-tT’s reasoning. The F-tT had not held that Part 5A did not apply to this case; rather, it had held that section 117C did not apply.

After some further questions from the court, it became clear that Mr Symes’s case on the Rules was that the provisions of Rules which deal with the revocation of deportation orders are also forward-looking, and do not apply if a person has already been deported. They apply only to an application to revoke a deportation order made while an applicant is still in the United Kingdom. He referred to two authorities which concerned applications to revoke deportation orders before ten years had elapsed.

He submitted that the F-tT was right to conclude, applying the factors in paragraph 390 of the Rules, that the length of time between the Order and the application for its revocation was a decisive factor. He was asked whether, even if the weight to be given to the Order was reduced by the lapse of time, what factors there were to balance against the deportation order. He did not answer that question.

Ms Smyth submitted that it was open to the UT to identify the error of law in determination 1 which it had identified. In paragraph 14 of determination 3 (see paragraph 62, above), the UT had said that the F-tT was wrong to have concluded that Part 5A ‘(which of course included section 117C)’ did not apply. To suggest that something turned on whether the F-tT had applied some of Part 5A (but not section 117C) was unrealistic. She argued that Mr Symes was trying, with ‘considerable ingenuity’ to suggest that the UT had wrongly set aside determination 1 because the F-tT had held that Part 5A did not apply, rather than because section 117C did not apply.

She drew our attention to the similarities in the language of Part 5A and the appeal provisions in the 2002 Act. The appeal provisions were amended by, and Part 5A was inserted by, the 2014 Act. Section 117A applies Part 5A when a court or tribunal has to decide whether an immigration decision breaches a person’s article 8 rights and is therefore unlawful under section 6 of the HRA.

The effect of Mr Symes’s construction was to offend all the principles described by Lord Hamblen in HA (Iraq): (see paragraphs 18-23, above). Both ‘concerning’ and ‘deportation’ in section 117C(2)(b) are wide words. ‘Deportation’ does not only mean the act of removing a person from the United Kingdom. It includes the whole statutory deportation regime, and the maintenance of the deportation order once a foreign criminal has left the United Kingdom (as envisaged by section 5(1) of the 1971 Act). The construction also produced perverse results which could not have been intended by Parliament. If it was right, section 117C would apply on 30 December 2024 to a person who had not yet been deported, but would cease to apply the very next day if he were then removed.

Part 5A does not apply to the Secretary of State and did not apply to an application to revoke a deportation order which was not made on human rights grounds. If an applicant disagreed with the Secretary of State’s approach to an application made under the Rules (but not on human rights grounds) his remedy was not a human rights appeal to the F-tT but an application for judicial review of the relevant decision.