NE-A (Nigeria) v Secretary of State for the Home Department

For a foreign criminal sentenced to at least four years’ imprisonment, section 117C(6) supplies the legally binding outcome of the structured Article 8 assessment. Deportation is required unless very compelling circumstances, over and above Exceptions 1 and 2, outweigh the strong public interest in deportation.

The provision must be applied within the Article 8 balancing exercise, rather than as an abstract formula. Once that exercise establishes that very compelling circumstances are absent, there is no further proportionality assessment. A tribunal must demonstrate that it has applied the statutory threshold, particularly where circumstances concerning children overlap with Exception 2.

These conjoined appeals concerned foreign criminals who claimed that deportation would breach article 8 of the European Convention of Human Rights. Each had received a sentence of at least four years’ imprisonment.

In NE-A’s case, the First-tier Tribunal initially allowed his appeal. The Upper Tribunal set that decision aside and, in a fresh determination dated 2 February 2015, dismissed the appeal. NE-A appealed.

In HM’s case, the First-tier Tribunal allowed an appeal against refusal to revoke a deportation order. After finding an error of law, the Upper Tribunal remade the decision on 10 March 2015 and again allowed the appeal. The Secretary of State appealed.

The central questions were the proper construction of section 117C(6) of the Nationality, Immigration and Asylum Act 2002 and whether each Upper Tribunal had applied its “very compelling circumstances” threshold correctly.

1. NE-A’s appeal was dismissed; the Secretary of State’s appeal in HM’s case was allowed. HM’s case was remitted to the Upper Tribunal for a fresh determination. Flaux and McFarlane LJJ agreed with Sir Stephen Richards.

2. The analysis in Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803 was correct and should be followed. Part 5A of the Nationality, Immigration and Asylum Act 2002 establishes a structured approach producing an article 8-compatible result. Section 117C(6) is primary legislation governing tribunal decision-making, rather than merely a policy consideration to which weight is given.

3. Where section 117C(6) applies, Parliament’s assessment must be given legal effect. Deportation is required unless very compelling circumstances, over and above Exceptions 1 and 2, outweigh the strong public interest in deporting a foreign criminal sentenced to at least four years. The provision operates within the article 8 balance and must not be treated as an abstract formula. If the requisite circumstances are absent, there is no additional proportionality exercise.

4. Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60 was consistent with that conclusion. It concerned the Immigration Rules, which are administrative policy rather than law. Its insistence that tribunals make their own proportionality assessment under the Rules did not govern the distinct effect of primary legislation directed to appellate tribunals.

5. In NE-A’s case, the Upper Tribunal understood the article 8 context and asked whether the circumstances, considered as a whole, outweighed the public interest. Its references to paragraph 398 as mirrored by section 117C(6) were open to criticism but caused no material error. It considered the psychiatric evidence, available treatment and family support, including the family life in the United Kingdom.

6. In HM’s case, the Upper Tribunal materially misdirected itself. Its repeated use of the former “exceptional circumstances” language, inaccurate statutory references, adoption of findings made under the earlier regime, and failure to recognise that the children’s circumstances had to be over and above Exception 2 showed insufficient application of section 117C(6). The absence of a sentencing recommendation for deportation was irrelevant. Those defects cumulatively required the decision to be set aside.

• Court of Appeal (Civil Division): In [2017] EWCA Civ 239, dismissed NE-A’s appeal, allowed the Secretary of State’s appeal concerning HM, and remitted HM’s case to the Upper Tribunal for a fresh determination.
• Upper Tribunal — NE-A: Having set aside the First-tier Tribunal’s decision for error of law, the Upper Tribunal dismissed NE-A’s appeal in a fresh determination dated 2 February 2015.
• First-tier Tribunal — NE-A: Initially allowed NE-A’s appeal against deportation.
• Upper Tribunal — HM: Having found a material error in the First-tier Tribunal’s determination, the Upper Tribunal remade the decision on 10 March 2015 and allowed HM’s appeal against refusal to revoke the deportation order.
• First-tier Tribunal — HM: Allowed HM’s appeal against the refusal to revoke his deportation order in a determination dated 30 June 2014.