Michael Abayomi Williams v The Secretary of State for the Home Department

A person removed under a deportation order which remains in force continues to be liable to deportation. Such a person cannot rely on section 117B(6) of the Nationality, Immigration and Asylum Act 2002, even where there is a genuine and subsisting parental relationship with a qualifying child and it would be unreasonable for that child to leave the United Kingdom.

Section 117C applies throughout the deportation regime. It governs the Article 8 proportionality assessment both before removal and where a deportee seeks revocation of an extant deportation order. A contrary interpretation would create an incoherent and absurd distinction between those removed and those awaiting removal.

The appellant, a Nigerian national with British-citizen children, had criminal convictions including a 21-month sentence for conspiracy to make false representations. He was deported to Nigeria in May 2015 under a deportation order which remained in force.

The Secretary of State refused his later human-rights claim. First-tier Tribunal Judge Rodger dismissed his Article 8 appeal on 11 January 2017, finding that the effect on his children, including one child who had experienced anxiety following separation, did not outweigh the public interest in deportation.

On appeal, the appellant argued that, because he had already been removed, he was no longer liable to deportation for section 117B(6) and that section 117C did not apply. The central issue was whether those provisions apply to a deportee seeking return while an extant deportation order remains in force.

1. Appeal dismissed. The First-tier Tribunal made no error of law in dismissing the appellant’s Article 8 appeal.

2. The Tribunal was bound by IT (Jamaica) v Secretary of State for the Home Department [2016] EWCA Civ 932. Section 117C applies both to a person awaiting removal under a deportation order and to a person who has been removed but remains subject to that order. In section 117C, deportation includes maintaining the exclusion or banishment which the order effects.

3. That conclusion also followed from section 117A(2)(b) of the Nationality, Immigration and Asylum Act 2002. The appeal concerned the deportation of a foreign criminal because the appellant remained subject to a deportation order. He would breach that order if he returned without authority.

4. The appellant remained liable to deportation for section 117B(6). Section 3 of the Immigration Act 1971 and Part 5A of the 2002 Act are in pari materia, so no express cross-reference was required for the expression to bear the same meaning. Reading section 117B(6) otherwise would conflict with section 117C and produce the absurd result that removal itself released a foreign criminal from the statutory deportation considerations.

5. The challenges to the First-tier Tribunal’s factual assessment of the child’s welfare, the appellant’s remorse, and the Article 8 balance disclosed no error. The judge had considered the evidence and was entitled to conclude that the adverse impact on the children did not outweigh the strong public interest in maintaining deportation.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appellant’s appeal and upheld the First-tier Tribunal’s decision.

• First-tier Tribunal: on 11 January 2017, dismissed the appellant’s appeal against the Secretary of State’s refusal, dated 2 February 2016, of his human-rights claim.