The Court of Appeal (CoA) upheld the strict application of the deportation regime for foreign criminals, ruling that the mandatory public interest considerations outlined in Section 117C of the Nationality, Immigration and Asylum Act (NIAA) 2002 must be applied when a deported individual seeks to revoke their deportation order from abroad.
Facts:
Mr. Nguyen, a Vietnamese citizen, came to the UK in 2002 and was refused asylum. In 2007, he was convicted of producing cannabis and sentenced to two years’ imprisonment. Subsequently, he was subject to a deportation order and removed to Vietnam in October 2007. Mr Nguyen did not appeal the original deportation decision.
In 2019, Mr Nguyen applied for the deportation order to be revoked (Decision 1) and separately applied for entry clearance (Decision 2), both of which were refused by the Secretary of State for the Home Department (SSHD) in December 2020 and July 2022. Among the key facts agreed were that Mr. Nguyen had maintained a genuine family life with his wife and adult son in the UK through regular visits, showed genuine remorse, and posed a low risk of reoffending.
Mr. Nguyen appealed both refusals to the First-tier Tribunal (FTT), which allowed his appeals on Article 8 (ECHR human rights) grounds. The Secretary of State then appealed to the Upper Tribunal (UT) which found that the FTT had erred in not applying Section 117C of the NIAA 2002 to this case. The UT then remade the decisions, dismissing Mr. Nguyen’s appeals by finding that he had failed to meet the stringent legal tests under Section 117C. Mr. Nguyen appealed this decision to the CoA.
Decision:
The CoA unanimously dismissed Mr. Nguyen’s appeal on all grounds and upheld the UT’s decision. The Court rejected Mr. Nguyen’s central argument that Section 117C did not apply to him because he had already been deported and was applying for revocation, having not contested the original decision to deport. The Court ruled that the only sensible meaning of the word “deportation”, as used in Part 5A, is that it includes the entire statutory deportation regime. This encompasses the initial decision to remove a person and the subsequent maintenance of the exclusion once they have left the UK. The Court affirmed that Part 5A and Section 117C apply equally to an appeal against the refusal to revoke a deportation order, regardless of whether the applicant remains inside or applies from abroad.
When assessing the remade decision by the UT, the Court agreed with the UT’s assessment that Mr. Nguyen failed to meet the very high legal threshold. The UT was entitled to find that Mr. Nguyen’s Article 8 claim was weak, as the interference with family life was mitigated by regular visits and the adaptation of his family members to life in the UK. The Court explicitly ruled that the mere passage of time since deportation cannot, on its own, amount to a “very compelling circumstance”, one sufficient to displace the strong public interest in maintaining the deportation order, especially when the underlying Article 8 claim is not strong.
Implications:
The case confirms that the public interest considerations set out in Part 5A of the NIAA 2002, specifically the stringent tests in Section 117C that pertain to foreign criminals, apply to the entire deportation process. This includes the maintenance of a deportation order and appeals against the refusal to revoke it, even when the individual in question resides outside of the UK. This ruling effectively closes a potential legal loophole, one that would have allowed deported individuals to argue that, once removed, the lower threshold of the Immigration Rules should apply, effectively allowing them to circumvent the high bar set by Parliament for serious public interest issues.
The judgement reinforces that a medium offender (sentenced to between 12 months and 4 years) who does not meet the “unduly harsh” test for their partner (Exception 2) must meet the test of “very compelling circumstances over and above” the ‘exceptions’ to succeed in an appeal, a threshold that remains extremely high. Factors such as remorse, rehabilitation, a low risk of reoffending, or compliance with the deportation order will typically be given very limited weight.
