Secretary of State for the Home Department v Olarewaju

Where a foreign criminal sentenced to between 12 months and four years falls outside Exceptions 1 and 2, deportation is required unless there are very compelling circumstances over and above those exceptions. Tribunals must give substantial weight to Parliament’s and the Secretary of State’s assessment of the public interest. Rehabilitation mainly concerns risk of reoffending, which is only one facet of that interest. Youth when offending and cultural shock on return may be relevant, but neither necessarily satisfies the high threshold. A finding of very real culture shock is not equivalent to very significant obstacles to integration under section 117C(4)(c) of the Nationality, Immigration and Asylum Act 2002.

The respondent, a Nigerian national, entered the United Kingdom aged nine and remained after his family’s visit visa expired. He was convicted of several offences committed before he was 18, including drug offences resulting in an 18-month detention and training order. He later received discretionary leave, which expired on his 18th birthday, and was served with a deportation order.

The First-tier Tribunal allowed his appeal against deportation, finding very compelling circumstances. The Upper Tribunal dismissed the Secretary of State’s appeal and upheld that decision. The Secretary of State appealed to the Court of Appeal, arguing that the First-tier Tribunal’s conclusion was not reasonably open to it. The central issue was whether the respondent’s youth, rehabilitation, United Kingdom connections and limited prospects in Nigeria could outweigh the public interest in deportation.

Appeal allowed. Lord Justice Newey gave the judgment, with Lord Justice Simon agreeing. The respondent’s appeal against deportation was dismissed.

1. The respondent was a foreign criminal sentenced to more than 12 months but less than four years. He accepted that neither Exception 1 nor Exception 2 applied. Under section 117C of the Nationality, Immigration and Asylum Act 2002, as construed in NA (Pakistan) v Home Secretary [2016] EWCA Civ 662, deportation could therefore be resisted only by establishing very compelling circumstances over and above those exceptions.
2. The decision in Ali v Home Secretary [2016] UKSC 60 required the tribunal to give appropriate weight to Parliament’s and the Secretary of State’s assessment of the public interest. Where the relevant Rules exceptions did not apply, only a very strong claim would ordinarily outweigh that interest.
3. The First-tier Tribunal gave insufficient weight to the public interest. Rehabilitation was relevant mainly to the risk of reoffending, which was only one facet of that interest. A period of two years without further offending and professional support did not make the case very compelling.
4. The respondent’s youth when offending had to be considered, but youth alone could not amount to very compelling circumstances. His arrival in the United Kingdom during childhood and the resulting culture shock were also relevant, but the finding of very real culture shock was not equivalent to very significant obstacles to integration under section 117C(4)(c) or paragraph 399A(c) of the Immigration Rules.
5. The only reasonable conclusion was that the evidence did not establish very compelling circumstances outweighing the public interest. Remittal to the First-tier Tribunal was unnecessary.

1. Court of Appeal (Civil Division) — [2018] EWCA Civ 557: allowed the Secretary of State’s appeal and dismissed the respondent’s appeal against deportation.
2. Upper Tribunal (Immigration and Asylum Chamber) — dismissed the Secretary of State’s appeal and upheld the First-tier Tribunal’s decision on 18 January 2016.
3. First-tier Tribunal — allowed the respondent’s appeal against deportation on 24 June 2015.