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

Discussion

Section 12 of the TCEA (see paragraph 16, above) gives the UT power to set aside a decision of the F-tT if it finds that the making of the decision concerned ‘involved the making of an error on a point of law’. Those are general words. They do not require the UT to identify every error of law in the F-tT’s determination; just to find that the determination involved the making of an error of law. An appeal from the UT to this court lies on a point of law only. This court can only interfere with the assessment made by the UT pursuant to section 12 of the TCEA if the UT’s assessment is itself wrong in law.

It does not matter whether the F-tT held that part of Part 5A applied to appeal 1; whatever else the F-tT held, it clearly did hold that section 117C did not apply. The thrust of the UT’s reasoning is that the F-tT erred in law in not applying Part 5A and in particular, in not applying section 117C. The whole includes its parts. The core of that error is that the F-tT erred in not applying section 117C. This is clear from the reasoning which I summarised in paragraphs 61-65, above. I consider that it is wrong in principle minutely to parse the error of law identified by the UT if, in substance, it did correctly identify an error of law: and I consider that it clearly did so in determination 3.

The next question is whether the F-tT did err in law in not applying section 117C. The mirror image of that question is the question whether or not the UT erred in law in applying section 117C to this case. I accept Ms Smyth’s submissions that the only sensible meaning which can be given to the word ‘deportation’ when it is used in Part 5A is that it includes each stage of the statutory deportation regime. Thus any court which considers a case ‘concerning deportation’ is required to apply Part 5A when considering a human rights appeal based on article 8. It is required to apply Part 5A, as the case may be, to a decision to deport a person who is in the United Kingdom, to a decision to refuse an application for the revocation of deportation made by a person who applies for the revocation from inside the United Kingdom, and to a refusal of an application made by a person who applies for revocation from abroad. The extent to which different provisions of Part 5A do, or do not apply, however, will depend on the issue before the court or tribunal, and on the facts.

The general rule in section 117C(3) for medium offenders is that the public interest requires their deportation unless one of the Exceptions applies. It must be borne in mind that the Exceptions in section 117C are just that. They are exceptions to that general rule. If a person can bring himself within an exception, he wins his human rights appeal against deportation, without more ado. The general rule in section 117C(3) is further qualified by the reasoning in NA (Pakistan). That reasoning enables a medium offender to rely on section 117C(6) as also, potentially, displacing the rule in section 117C(3).

I accept that the language in section 117C(4)(c) and (5) is forward-looking. But it does not displace the meaning of ‘deportation’ in Part 5A. Some of the F-tT’s reasoning tacitly acknowledges that ‘deportation’ has this wider meaning: see for example paragraphs 49, 52, and 64 (paragraphs 49, 51, and 55, above) in which the F-tT apparently accepted that there is a public interest in maintaining a deportation order after removal.

This forward-looking language does not, however, show that wherever the word ‘deportation’ is used in Part 5A it refers to a future removal. All it shows is that a person who applies for the revocation of a deportation order from abroad may well not be able to bring himself within Exception 1 or Exception 2. Since that person, has, ex hypothesi, been deported, that should not be a great surprise. It does not follow from those two points, however, that section 117C(1), (2), (3) and (6) do not apply to an appeal against the refusal of an application to revoke a deportation order made from abroad. The Exceptions in part use forward-looking language and they are likely to be invoked before the deportation order has been given effect; but they do not displace the wide meaning of ‘deportation’ in Part 5A, and in particular, in sections 117A(2)(b) and in section 117C(1), (2), (3) and (6). There is nothing in the words of those provisions which supports that view. On the contrary, they all apply to an appeal against the refusal of a foreign criminal’s application to revoke a deportation order made from abroad. Such an appeal can only succeed if the appellant can meet the test in section 117C(6).

It follows that the F-tT erred in law in not applying section 117C(6) to Mr Nguyen’s appeal, and purporting to allow an appeal on human rights grounds when, on its own approach to the facts, ‘None of this is very compelling’. It follows that the F-tT was also wrong to decide the appeal under the Rules; and by reference to an interpretation of the Rules which departed from the statutory scheme which the Rules are intended to, and do echo (except to the extent that they also give the Secretary of State power to revoke a deportation order on grounds other than human rights grounds).

I can deal very shortly with grounds 2 and 3. If section 117C(1)-(3) and (6) apply to this case, as they do, it is hopeless to contend that the mere passage of time could amount to a very compelling circumstance sufficient to displace the public interest in maintaining the deportation order, when Mr Nguyen’s article 8 claim is as weak as it is. The contention that the ‘fact’ that Mr Nguyen met the provisions of the Rules is a very compelling circumstance is, if anything, even more hopeless. It depends on a misreading of the Rules, as I have explained, and, as with ground 2, the weakness of Mr Nguyen’s article 8 case is a decisively large hole beneath the waterline.

The UT rightly identified the F-tT’s error of law, and was entitled to set determination 1 aside. It was also entitled to reach the decision which it did reach, applying section 117C(5) of the 2002 Act. That decision echoed the observation of the F-tT which I have quoted in the previous paragraph. The fate of appeal 2 wholly depended on the outcome of appeal 1, as the parties agreed. If the UT was entitled to re-make determination 1, as it was, it was also entitled to find an error of law in, and to re-make, determination 2.