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

Lady Justice Elisabeth Laing:

Introduction

This is an appeal by the Appellant, Mr Nguyen. Mr Nguyen was convicted of a drugs offence in the United Kingdom. The Secretary of State for the Home Department (‘the Secretary of State’) made a deportation order against him on 30 August 2007 (‘the Order’). In 2007 Mr Nguyen was deported from the United Kingdom to Vietnam.

On 7 February 2019 Mr Nguyen applied for the Order to be revoked. The Secretary of State refused that application in decision 1 (dated 31 December 2020). Mr Nguyen also applied for entry clearance on 15 December 2019. The Entry Clearance Officer refused that application in decision 2, dated 6 July 2022, in short, on the grounds that the Order was a reason for refusing entry clearance.

Mr Nguyen appealed against decision 1 and decision 2 to the First-tier Tribunal (Immigration and Asylum Chamber) (‘the F-tT’). The F-tT allowed both appeals (in determinations 1 and 2). The Secretary of State then appealed against determinations 1 and 2 to the Upper Tribunal (Immigration and Asylum Chamber) (‘the UT’). In determination 3 the UT found that the F-tT had erred in law in appeal 1 and in appeal 2. In determination 4, the UT re-made both decisions, and allowed the appeals of the Secretary of State. Mr Nguyen now appeals to this court, with the permission of Arnold LJ.

The main issue on this appeal is whether the Part 5A of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’) applied in whole or in part to Mr Nguyen’s appeals. The argument that it does not apply is based on a suggested distinction between cases in which an appellant has already been deported at the date of an appeal, is outside the United Kingdom, and applies for an existing deportation order to be revoked, and cases in which an appellant has not yet been removed and is still in the United Kingdom at the time of his appeal to the F-tT. For the reasons I give in this judgment, I accept that there is such a distinction. The argument that the effect of this distinction is that section 117C (or section 117A, or section 117B) of the 2002 Act does/do not apply to Mr Nguyen’s case is, however, misconceived. I would therefore dismiss his appeal.

Mr Symes, who did not appear in the F-tT or in the UT, represented Mr Nguyen. Ms Smyth KC and Ms Jackson represented the Secretary of State. They did not appear below either. We thank counsel for their helpful written and oral submissions. We thank Ms Jackson for drafting the Secretary of State’s skeleton argument. She also made oral submissions on ground 3 (see paragraph 82, below).

The statutory framework

This is a case in which it is somewhat easier to understand the arguments against the background of the relevant statutory provisions, and of the most significant authorities on their interpretation.

The Immigration Act 1971

Section 3 of the Immigration Act 1971 (‘the 1971 Act’) is headed ‘General provisions for regulation and control’. Section 3(5)(a) provides that a person who is not a British citizen is liable to deportation if the Secretary of State deems his deportation to be conducive to the public good. Section 5 is headed ‘Procedure for, and further provisions as to, deportation’. ‘Without prejudice to the operation of section 3(5)’, section 3(6) provides that a person who is not a British citizen is also liable to deportation if, after he reaches the age of 17, he is convicted of an offence for which he is punishable with imprisonment and, on his conviction, is recommended for deportation by a court which has power under the 1971 Act to make such a recommendation. Section 6 is headed ‘Recommendations by court for deportation’. Section 6 makes further provision about such recommendations.

Section 5(1) provides:

‘Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say, an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force’.

Section 5(2) gives the Secretary of State power at any time to revoke a deportation order.

The Nationality, Immigration and Asylum Act 2002

Part 5 of the 2002 Act is headed ‘Appeals in respect of Protection and Human Rights Claims’. Part V (as it was originally) was significantly amended, including its heading, by the Immigration Act 2014 (‘the 2014 Act’). Section 81 defines ‘the Tribunal’ as the F-tT. Section 82 is headed ‘Right of appeal to the Tribunal’. Section 82(1)(b) gives P a right of appeal to the F-tT where the Secretary of State has decided to refuse a human rights claim by P. Section 84 is headed ‘Grounds of appeal’. Section 84(2) provides that an appeal under section 81(2)(b) ‘must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998’ (‘the HRA’). This is a significant reduction of the earlier rights of appeal. Before the amendments made by the 2014 Act, section 86(3) of the 2002 Act required the Tribunal to allow an appeal in so far as it thought that ‘(a) a decision against which the appeal is brought is or is treated as being brought was not in accordance with law (including immigration rules)’ or ‘(b) a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently’. Section 86(3) was repealed by the 2014 Act.

Part 5A was inserted in the 2002 Act by section 19 of the 2014 Act. Section 19 and Part 5A are headed ‘Article 8 of the ECHR: Public Interest Considerations’. Section 117A is headed ‘Application of this Part’. Section 117A(1) provides that Part 5A applies where ‘a court or tribunal is required to determine whether a decision made under the Immigration Acts (a) breaches a person’s right to respect for private and family life under Article 8, and (b) as a result would be unlawful under section 6 of’ the HRA. By section 117A(2) a court or tribunal must, when it considers ‘the public interest question’ have regard ‘(in particular)’, in all cases, to the considerations listed in section 117B, and ‘in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C’. Section 117A(3) defines ‘the public interest question’ for the purposes of section 117A(2). It is ‘the question whether an interference with a person’s right to respect for private and family life is justified under Article 8(2)’.

Section 117B is headed ‘Article 8: public interest considerations applicable in all cases’. Section 117B(1) provides that ‘The maintenance of effective immigration controls is in the public interest’. Section 117B(4)(b) provides that ‘Little weight should be given to…a relationship formed with a qualifying partner that is established by a person at a time when the person is in the United Kingdom unlawfully’.

Section 117C is headed ‘Article 8: additional considerations in cases involving foreign criminals’. The deportation of foreign criminals is in the public interest (section 117C(1)). The more serious the offence, the greater is the public interest in the deportation of a foreign criminal (section 117C(2)). In the case of a foreign criminal (‘C’) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies (section 117C(3)). Exception 1 is not relevant. Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner and the effect of C’s deportation on the partner would be unduly harsh. If C has been sentenced to more than four years’ imprisonment, ‘the public interest requires deportation unless there are very compelling circumstances over and above those described in Exceptions 1 and 2’ (section 117C(6)). The considerations listed in section 117C(1) to (6) ‘are to be taken into account where a court is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted’ (section 117C(7)).

Some of the terms used in Part 5A are defined in section 117D. ‘Article 8’ means article 8 of the European Convention on Human Rights. A ‘qualifying partner’ is a partner who is a British citizen or who is settled in the United Kingdom within the meaning of section 32(2A) of the 1971 Act. A ‘foreign criminal’ includes a person who is not a British citizen, who has been convicted in the United Kingdom of an offence, and who has been sentenced to a period of imprisonment of at least 12 months’.

The UK Borders Act 2007

Section 32(5) of the UK Borders Act 2007 (‘the 2007 Act’) imposes a duty on the Secretary of State to make a deportation order in relation to a foreign criminal, subject to the exceptions in section 33 of the 2007 Act. It came into force on 1 August 2008, after the Order was made (and, indeed, after Mr Nguyen left the United Kingdom). It does not, therefore, apply to Mr Nguyen’s case. It is part of the deportation regime which was in force when Part 5A came into force, however, and is, therefore, relevant to the construction of Part 5A. Section 32(6) prevents the Secretary of State from revoking a deportation order made under section 32(5) unless he thinks that an exception under section 33 applies, the application is made while the foreign criminal is outside the United Kingdom, or section 34(4) applies.

The Tribunals, Courts and Enforcement Act 2007

Section 11(1) and (2) of the Tribunals, Courts and Enforcement Act 2007 (‘the TCEA’)

give ‘[a]ny party to an appeal’ a right of appeal to the UT on ‘any point of law arising from a decision of’ the F-tT ‘(other than an excluded decision)’. ‘Excluded decision’ is

defined in section 11(5). That right may only be exercised with permission (section 11(3)). That permission may be given by the F-tT or by the UT (section 11(4)).

Section 12 of the TCEA is headed ‘Proceedings on an appeal to the [UT]’. By section 12(1) and (2), if the UT finds ‘that the making of the decision concerned involved the making of an error on a point of law’, the UT ‘(2)(a) may (but need not) set aside the decision of the [FTT], and, (b) if it does, must either –(i) remit the case to the [FTT] with directions for its reconsideration, or (ii) re-make the decision.’

The authorities on Part 5A

NA (Pakistan) v Secretary of State for the Home Department

The first authority which is relevant to this appeal is NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662; [2017] 1 WLR 207. In that case, this court held that the failure to provide in section 117C that medium offenders (that is, those who had been sentenced to between 12 months and four years’ imprisonment) could escape deportation if there were very compelling circumstances over and above Exceptions 1 and 2 was an obvious drafting error and would be incompatible with their article 8 rights in some cases. On its true construction, section 117C(3) means that the public interest does not require the deportation of medium offenders who do not meet the conditions of Exceptions 1 or 2 if their case falls within the terms of section 117C(6).

HA (Iraq) v Secretary of State for the Home Department

The second authority is HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22; [2022] 1 WLR 3784 (‘HA (Iraq’)). In paragraphs 1-5 of a judgment with which the other members of the court agreed, Lord Hamblen summarised the effect of the regime in Part 5A. He recorded in paragraph 4 that it was common ground that NA (Pakistan) was correct; and he therefore assumed that it was. A similar approach was taken by the Supreme Court in paragraph 36 of Secretary of State for the Home Department v AM (Belarus) [2024] UKSC 13; [2025] AC 629. Again, the correctness of NA (Pakistan) was not in issue. This court is, in any event, bound by NA (Pakistan).

The principal issues in HA (Iraq) were the meaning of the ‘unduly harsh’ test in Exception 2, and, in particular whether it involves a comparison, and, in relation to the very compelling circumstances test, what weight if any should be given to rehabilitation and how the seriousness of the relevant offending should be assessed. Lord Hamblen summarised KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53; [2018] 1 WLR 5273 (‘KO (Nigeria)’) in paragraphs 18-22. In paragraph 18, he listed five points about the interpretation of Part 5A which he derived from KO (Nigeria). Part 5A was part of a series of attempts by the Government to ‘clarify the application of article 8 in immigration cases. The purpose of the changes was to promote consistency, predictability and transparency in decision making and to reflect the Government’s and Parliament’s view of how as a matter of public policy the balance should be struck’. The purpose of the scheme was to ‘narrow rather than widen the residual area of discretionary judgment for the court to take into account public interest or other factors not directly reflected in the wording of the statute’.

He gave seven reasons for rejecting an approach to the unduly harsh test based on a comparison (paragraphs 31-40). He preferred this formula: ‘unduly harsh does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. “Harsh” in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb “unduly” raises an already elevated standard still higher’ (paragraph 41). That is to say, the threshold is ‘a highly elevated threshold or standard’; but not as high as ‘very compelling circumstances’ (paragraph 42). In cases where neither Exception applies, ‘a full proportionality assessment is required’. The decision-maker is required to give effect to the principle that ‘the public interest requires deportation unless there are’ very compelling circumstances as described in section 117C(6) (paragraph 47). That test applies where the private and family life considerations are ‘so strong that it would be disproportionate and in violation of article 8 to remove’ the foreign criminal (paragraph 48).

In paragraph 51 Lord Hamblen said that all the relevant circumstances of the case will be considered and weighed against the ‘very strong public interest in deportation’. He explained by reference to the judgment of Lord Reed in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799 that the relevant factors will include those ‘identified by the European Court of Human Rights as being relevant to the article 8 proportionality assessment’. He then listed them. The weight to be given to them in an individual case is for the decision-maker (paragraph 52).

Rehabilitaion was relevant in the proportionality assessment. Lord Hamblen summarised the relevant authorities in paragraphs 54-57. His conclusion was that the weight to be given to rehabilitation on the facts of a particular case was for the fact-finding tribunal, so that it was not possible to make a definitive statement about that weight. If the only evidence of rehabilitation was that no further offences have been committed, that would be likely to be of little or no material weight. Positive evidence of rehabilitation might be given more weight, but it will rarely be of great weight, since the public interest in the deportation of criminals is not only based on the need to protect the public, but also on wider considerations of deterrence and public concern (paragraph 58).

That was subject to a caveat in paragraph 59. After considering the authorities, he concluded that while the length of the sentence passed was often a guide to the seriousness of the offence, that was not an absolute rule, because such a rule would not take account of a discount for pleas of guilty (paragraph 68). It might also be legitimate, provided there is no double counting, to give weight to the nature of the offending (paragraphs 70 and 71).

IT (Jamaica) v Secretary of State for the Home Department

We were referred to several other authorities, but none is a binding decision on the issue in this case made against the background of the current legal provisions. The closest relevant guidance on the issue is a passage in the judgment of Arden LJ (as she then was) in IT (Jamaica) v Secretary of State for the Home Department [2016] EWCA Civ 932; [2017] 1 WLR 240. The appellant was sentenced to 42 months’ imprisonment for a drugs offence in 2009. He was deported to Jamaica in 2010. His case was therefore one to which the automatic deportation provisions in the 2007 Act applied.

In 2013, three and a half years later, he applied for the deportation order to be revoked so that he could return to the United Kingdom and live with his wife and son, who were British citizens. The Secretary of State refused the application. The F-tT allowed the appellant’s appeal and the UT dismissed the Secretary of State’s appeal from the F-tT’s determination. The F-tT found that it would be unduly harsh for the appellant’s son if the deportation order continued.

This court allowed the appeal. In paragraph 2 of a judgment with which the other members of this court agreed, Arden LJ recorded that it was ‘effectively common ground that, under section 117C…the deportation order may only be revoked if its retention is determined to be “unduly harsh”’. That point was not, therefore, the subject of argument on the appeal. Arden LJ added that the parties’ disagreement was about ‘the weight to be given in that determination to the public interest in deporting foreign criminals who have committed serious offences…’ She said in paragraph 3 that she had decided that the unduly harsh test in section 117C could only be met if the appellant could show that there were ‘very compelling reasons for revoking the deportation order before it has run its course’.

In paragraphs 50-57 she explained why she had decided that the unduly harsh test required the respondent to show that there were very compelling circumstances. In the course of that exposition, she observed, in paragraph 52, that the word ‘deportation’ in section 117C(1) and elsewhere in section 117C was ‘being used to convey not just the act of removing someone from the jurisdiction but also maintaining the banishment for a given period of time: if this were not so, section 117C(1) would achieve little’. In paragraphs 55 and 57 she equated undue harshness and very compelling circumstances.

IT (Jamaica) was one of the four appeals considered by the Supreme Court in KO (Nigeria). In paragraph 41 of a judgment with which the others members of the court agreed, Lord Carnwath noted, without comment, Arden LJ’s remark in paragraph 2 of her judgment that it was common ground that section 117C applied to the revocation of a deportation order (see paragraph 26, above). It seems, therefore, that, in the Supreme Court, IT did not challenge that part of this court’s reasoning; and it follows that the Supreme Court did not decide this point. In paragraph 42, Lord Carnwath held that the reasoning of this court could not stand because Arden LJ had relied on the very compelling circumstances test, which was not relevant. IT’s case was nevertheless remitted to the UT because there were other errors of law in the approach of the F-tT (paragraphs 44 and 45).

The Immigration Rules (HC 395 as amended)

The Rules are the ‘rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode…’ (section 1(4) of the 1971 Act). Section 1(4) of the 1971 Act gives a general indication of the sorts of provisions which the Rules must include. Section 3(2) of the 1971 Act requires the Secretary of State from time to time to lay before Parliament statements of the Rules, and of changes to the Rules. If either House of Parliament disapproves such a statement by a resolution of that House, the Secretary of State must, ‘as soon as may be make such changes or further changes as appear to him to be required in the circumstances’ and lay a further statement before Parliament. The Rules are not delegated legislation (Odelola v Secretary of State for the Home Department [2009] UKHL 25; [2009] 1 WLR 1230).

It was common ground in YM (Uganda) v Secretary of State for the Home Department [2014] EWCA Civ 1292, and was common ground in this case, that on an appeal the UT (but not this court) must apply (if they are relevant to the issues in the appeal) the provisions of the Rules which apply at the date of its decision, rather than the provisions of the Rules which applied at the date of the decision which is the subject of the appeal (see paragraphs 39 and 40 of the judgment of Aikens LJ with which the other members of this court agreed).

The facts

It is not necessary to say much about the facts. The UT summarised them briefly in the determination. Mr Nguyen was born in Vietnam in 1966. He is a Vietnamese citizen. He married his wife (‘W’) in 1992. He came to the United Kingdom in 2002, using a false identity. He soon claimed asylum. The Secretary of State refused that claim. Mr Nguyen appealed, unsuccessfully. On 25 May 2007 he was convicted of producing cannabis. He was sentenced to two years’ imprisonment. The sentencing judge made a recommendation for his deportation. The Secretary of State made a decision to deport Mr Nguyen. The Secretary of State then made the Order. Mr Nguyen did not exercise his right of appeal against the decision to deport him. He was deported to Vietnam on 30 October 2007.

The UT listed ‘The agreed facts’ in paragraph 14 of determination 4. There was family life between Mr Nguyen, and W, and their adult son. There was a low risk of re-offending if he returned to the United Kingdom. He was genuinely remorseful. He had only ever been convicted of one offence. The relevant requirements of Appendix FM were met. The UT made further findings of fact in paragraphs 28-33. Mr Nguyen and W had worked hard to maintain their relationship despite their long separation. W had travelled to Vietnam each year (apart from during the pandemic). They had also taken holidays together in third countries. Mr Nguyen had family in Vietnam and owned a house there. He was employed in a tourism company there. There was nothing to suggest he had any health problems. W and the son had a strong relationship in the United Kingdom. They had lived together for a long time. The son had a job, and a son of his own, who was born in July 2022. There was nothing to suggest that either had any health problems.