El Gazzaz v The Secretary of State for the Home Department

For a medium offender, section 117C(3) requires deportation unless an applicable exception or very compelling circumstances outweighs the public interest. The assessment of very compelling circumstances is a holistic Article 8 proportionality exercise. It must take account of all relevant factors, including childhood residence and the guidance in Maslov, but requires no prescribed sequence.

Appropriate treatment available in the receiving state, despite lower standards of healthcare and family support, may substantially reduce the Article 8 weight of mental ill-health. A hospital order removes the automatic-deportation presumption under the UK Borders Act 2007, but does not displace section 117C. An error concerning that presumption is immaterial where the statutory Article 8 framework has been correctly applied.

The appellant, an Egyptian national who arrived in the United Kingdom aged 12, challenged the maintenance of a deportation order. He had committed violent disorder, criminal damage and an offence involving a firearm and ammunition. He later developed serious mental ill-health and was subject to a hospital order under the Mental Health Act 1983.

The First-tier Tribunal allowed his appeal against the Secretary of State’s decision. The Upper Tribunal set that decision aside for error of law, re-heard the appeal and dismissed it on 10 March 2015. The appellant contended that deportation to Egypt would be disproportionate under Article 8 because of his illness, need for family support and obstacles to integration. He also challenged the Upper Tribunal’s use of the automatic-deportation regime.

1. Appeal dismissed. Sales LJ, with whom Lewison LJ agreed, held that the Upper Tribunal had made no material error of law.
2. Applying [2016] EWCA Civ 662, section 117C(3) applies to a medium offender as requiring deportation unless either statutory exception applies or there are very compelling circumstances over and above those exceptions. Exception 1 could not apply because the appellant’s lawful residence had been truncated by the 2006 deportation order. Exception 2 was irrelevant.
3. The very compelling circumstances inquiry is the structure for the Article 8 proportionality balance. It is a holistic exercise, not a calculation of the gap between the facts and Exception 1. The tribunal had considered the relevant factors, including the appellant’s age on arrival, the age at which he offended, family support, medical needs, risk of relapse and offending history. The guidance in Maslov had properly been brought into that balance. The tribunal was not required to use a particular format, provided that it weighed all relevant considerations.
4. The tribunal was entitled to accept the psychiatric evidence while finding that medication and appropriate mental-health treatment would be available in Egypt. The appellant had been brought up there, had visited family there, and retained language and familiarity with the society. Although removal would create significant problems of integration and reduce the support and healthcare available to him, the tribunal was entitled to find that those problems were not very significant and did not meet the high threshold of very compelling circumstances.
5. The Upper Tribunal had erred in stating that section 32 of the UK Borders Act 2007 required a deportation order. The hospital order engaged the statutory exception and removed that automatic presumption. The error was immaterial, however, because the tribunal’s dispositive analysis applied section 117C, which independently made deportation of this foreign criminal a matter of public interest unless the appellant satisfied an exception or established very compelling circumstances.

• Court of Appeal (Civil Division): dismissed the appeal in [2018] EWCA Civ 532.
• Upper Tribunal (Immigration and Asylum Chamber): set aside the First-tier Tribunal’s decision for error of law on 25 April 2013, then re-heard the appeal and dismissed it on 10 March 2015.
• First-tier Tribunal: allowed the appellant’s appeal against the Secretary of State’s decision to maintain the deportation order on 17 December 2012.