Forrester v The Secretary of State for the Home Department

For a foreign criminal sentenced to at least four years, Nationality, Immigration and Asylum Act 2002, section 117C(6) requires deportation unless very compelling circumstances outweigh the strong public interest. Circumstances over and above Exceptions 1 and 2 need not always be independent of them. A particularly strong family- or private-life case may itself contribute to the very compelling circumstances, but the high statutory threshold remains. An appellate tribunal must read the first-instance decision as a whole. Ambiguous language in one passage does not establish material error where the reasoning shows that the correct test was applied.

The appellant, a Jamaican national with indefinite leave to remain, challenged a deportation order made after a four-year sentence for supplying heroin and cocaine. The First-tier Tribunal first allowed his appeal, but the Upper Tribunal set that decision aside. On remittal, a differently constituted First-tier Tribunal again allowed the appeal. The Upper Tribunal then set that decision aside for material error of law and, on rehearing, dismissed the appeal. The central questions were whether the First-tier Tribunal had treated satisfaction of Exceptions 1 and 2 as automatically meeting section 117C(6), and whether its overall assessment of very compelling circumstances was legally open.

Disposition. The appeal was allowed. The Court of Appeal held that there was no material error of law in the First-tier Tribunal’s decision and therefore no proper basis for the Upper Tribunal to set it aside.

1. Statutory test. Under Part 5A of the Nationality, Immigration and Asylum Act 2002, a foreign criminal sentenced to at least four years must be deported unless there are very compelling circumstances over and above Exceptions 1 and 2. The approach summarised in Hesham Ali v Secretary of State for the Home Office [2016] UKSC 60; [2016] 1 WLR 4799 requires a very strong claim capable of outweighing the substantial public interest in deportation.
2. Meaning of over and above. The additional circumstances do not necessarily have to be wholly independent of the matters comprising the exceptions. As explained in NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662, an exception engaged with particular force may itself contribute to a very compelling case. The statutory high threshold must nevertheless still be met.
3. Assessment of the evidence. The First-tier Tribunal recognised the strength of the public interest, including deterrence and marking society’s revulsion, and did not treat low risk of reoffending as eliminating those considerations. It assessed the appellant’s private and family life, the severe impact on his daughter, the exile-like consequences of removal, and the exceptional evidence of remorse and rehabilitation cumulatively.
4. Error of law. Although one passage was ambiguous, the decision read as a whole showed that the First-tier Tribunal understood that matters over and above an exception were not automatically very compelling. It asked the correct question, considered the evidence in the round, and reached a conclusion that was not said to be perverse. It was therefore unnecessary to determine the grounds directed to the Upper Tribunal’s rehearing.

• Court of Appeal (Civil Division) — [2018] EWCA Civ 2653. Allowed the appeal and restored the effect of the First-tier Tribunal’s decision.
• Upper Tribunal (Immigration and Asylum Chamber) — UT Judge Smith set aside the First-tier Tribunal’s decision for material error of law and, on rehearing, dismissed the appeal.
• First-tier Tribunal — FTT Judge Gibb allowed the appeal on 1 May 2015 after remittal. An earlier decision by FTT Judge Lester had also allowed the appeal, but was set aside on appeal.