Mwesezi v The Secretary of State for the Home Department

For a foreign criminal sentenced to at least four years, section 117C(6) of the Nationality, Immigration and Asylum Act 2002 requires deportation unless there are very compelling circumstances over and above Exceptions 1 and 2. The assessment is holistic. Features within an exception may carry additional weight, and other Article 8 factors may also be considered. The guidance in Maslov v Austria [2009] INLR 47 is relevant but does not create a separate immigration rule or rigid checklist. Extremely serious adult offending, lack of remorse, a non-negligible risk of reoffending, ordinary family ties and the absence of very significant obstacles to integration outweighed long residence, health and family support.

The appellant, a Ugandan national who had arrived in the United Kingdom aged two, was convicted of possessing a disguised firearm and ammunition and sentenced to six years’ imprisonment. The Secretary of State proposed deportation under section 32(5) of the UK Borders Act 2007.

The First-tier Tribunal found that he was socially and culturally integrated in the United Kingdom but faced no very significant obstacles to integration in Uganda. It nevertheless allowed his Article 8 appeal, finding very compelling circumstances. The Upper Tribunal allowed the Secretary of State’s appeal, set aside that decision and remade the decision in favour of deportation. The central issues before the Court of Appeal were whether the First-tier Tribunal had erred in law, whether it had misused the guidance in Maslov, and whether the Upper Tribunal was entitled to rely on the integration finding.

Sales LJ gave the leading judgment, with which Floyd and McFarlane LJJ agreed. The appeal was dismissed.

1. For a foreign criminal sentenced to at least four years, section 117C(6) of the Nationality, Immigration and Asylum Act 2002 requires deportation unless there are very compelling circumstances over and above those described in Exceptions 1 and 2. Consistently with NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662, features falling within an exception may receive additional weight where they have significance beyond the bare satisfaction of the exception. Other factors relevant to Article 8 proportionality may also be considered.
2. The guidance in Maslov v Austria [2009] INLR 47 identifies relevant considerations, including the seriousness of the offence, length of residence, conduct since the offence, and social, cultural and family ties. It must be applied in context. The observation in R (Akpinar) v Upper Tribunal [2014] EWCA Civ 937 that Maslov does not create a separate immigration rule was correct. NA (Pakistan) and El Gazzaz v Secretary of State for the Home Department [2018] EWCA Civ 532 confirmed the proper approach.
3. The Upper Tribunal was entitled to conclude that the First-tier Tribunal’s finding of very compelling circumstances was not reasonably open to it. The appellant’s offences were extremely serious and committed well into adulthood. He showed no remorse, the risk of reoffending was not negligible, and his family ties were ordinary rather than compelling. His economic dependency on family members in the United Kingdom carried limited weight because he could make a new start in Uganda and faced no very significant obstacles to integration.
4. The Upper Tribunal was entitled to rely on the unchallenged First-tier Tribunal finding that the appellant could re-establish himself in Uganda. There was no obvious perversity or unlawfulness requiring the Upper Tribunal to discount that finding of its own motion. The reasoning based on Maslov was not material because the Upper Tribunal had upheld the appeal on the separate and valid primary ground.

• Court of Appeal (Civil Division): dismissed the appellant’s appeal. The Upper Tribunal had been entitled to set aside the First-tier Tribunal’s decision and remake the decision in favour of deportation.
• Upper Tribunal (Immigration and Asylum): allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s decision for error of law and found deportation proportionate and lawful.
• First-tier Tribunal: found that the appellant faced no very significant obstacles to integration in Uganda but nevertheless allowed his Article 8 appeal on the basis of very compelling circumstances.