The Secretary of State for the Home Department v Erjon Rexha

Section 117C(7) of the Nationality, Immigration and Asylum Act 2002 requires scrutiny of every conviction that formed a reason for the deportation decision. It does not confine the statutory assessment to the most recent conviction.

Where an offence attracting a sentence of at least four years is among the reasons for deportation, section 117C(6) applies. The tribunal must then determine whether there are very compelling circumstances over and above the statutory Exceptions. Earlier favourable findings on deportation do not prevent reliance on an old conviction where circumstances have materially changed or the law has changed.

The Secretary of State appealed against the First-tier Tribunal's decision allowing Mr Rexha's appeal against a deportation decision. Mr Rexha had received a four-year sentence in 2002 for possession of cannabis with intent to supply, and a conditional discharge in 2010 for possession of cocaine.

The First-tier Tribunal treated the 2010 conviction as the sole offence giving rise to the later deportation decision. It therefore held that section 117C(6) did not apply. The central issue was whether section 117C(7) of the Nationality, Immigration and Asylum Act 2002 permitted reliance on the earlier four-year sentence.

1. Appeal allowed. The First-tier Tribunal erred in construing section 117C as limited to the conviction immediately preceding the deportation decision.

2. Sections 117C(1) to (6) apply to all convictions which provided a reason for the deportation decision. Section 117C(7) requires careful scrutiny of the decision to identify those offences. It does not restrict the assessment to the most recent offence. A conviction may fall outside the exercise if the Secretary of State did not properly rely on it as a reason for deportation.

3. Both the 2002 and 2010 convictions formed reasons for the decision in this case. The 2002 sentence of four years therefore engaged section 117C(6). The First-tier Tribunal should have considered whether there were very compelling circumstances over and above Exceptions 1 and 2.

4. The earlier favourable adjudicator's decision did not prevent reliance on the 2002 conviction. The factual circumstances had changed substantially, and the statutory framework had changed following the Immigration Act 2014. The exceptions identified in Secretary of State for the Home Department v TB (Jamaica) [2008] EWCA Civ 977 therefore applied.

5. The appeal could not be finally determined because the First-tier Tribunal had made no direct findings on very compelling circumstances. Its decision was quashed and the matter remitted for redetermination by a different judge.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the Secretary of State's appeal, quashed the First-tier Tribunal decision, and remitted the appeal for redetermination.
• First-tier Tribunal: Allowed Mr Rexha's appeal against the deportation decision on 16 September 2015.