OH (Algeria) v The Secretary of State for the Home Department

Under section 117C(6) of the Nationality, Immigration and Asylum Act 2002, a historic sentence of at least four years places a foreign criminal in the higher category, even where a later offence triggered deportation. Section 117C(7) permits consideration of all offences that supplied a reason for the deportation decision, not merely the latest offence.

At the Exception 2 stage, seriousness of offending must not be weighed into undue harshness, although the very high public interest in deporting foreign criminals remains relevant. The very compelling circumstances test requires a close and clearly reasoned balance between criminality, the specific public interest and family life. The appeal was dismissed.

The appellant, an Algerian national with a British wife and five children, had received an eight-year sentence in 2004 for causing grievous bodily harm with intent. In 2015 he received a further 12-month sentence for assaulting his daughter. The Secretary of State made a new deportation order in 2016.

The First-tier Tribunal found that deportation would be unduly harsh and that very compelling circumstances existed. The Upper Tribunal set that decision aside for error of law and, on rehearing, dismissed the appeal. The central issues were whether the historic eight-year sentence engaged the higher statutory threshold, whether the First-tier Tribunal had given adequate reasons, and whether the Upper Tribunal’s decision was irrational.

1. Ground 3. The appeal against the application of the higher threshold was dismissed. A person who has previously been sentenced to at least four years’ imprisonment remains within section 117C(6) of the Nationality, Immigration and Asylum Act 2002. The statute is not confined to the offence which triggered the deportation decision. Under section 117C(7), the tribunal may consider all offences which provided a reason for the decision to deport. Section 6 of the Interpretation Act 1978 supported reading the singular as including the plural. The approaches in Johnson [2016] UKUT 282 (IAC) and Rexha [2016] UKUT 335 (IAC) were accepted. The reasoning in MA (Pakistan) v SSHD [2019] EWCA Civ 1252 was also persuasive.
2. Ground 1. The First-tier Tribunal had erred in law. It treated the appellant’s adult daughter as a qualifying child for Exception 2 and made her circumstances a major focus of the undue-harshness assessment. Further, its reasoning did not adequately bridge the gap between the facts and the conclusion that very compelling circumstances existed.
3. Seriousness of offending cannot be considered as part of the specific criteria for Exception 2, consistent with R (MA(Pakistan)) v Upper Tribunal [2018] 1 WLR 5273. However, the tribunal must bear in mind the broad and very high public interest in deporting foreign criminals. At the very compelling circumstances stage, it must analyse the offender’s criminality, the resulting specific public interest and the impact on family life. The threshold is exceptionally high and requires reasons that are more than usually clear.
4. Ground 2. The Upper Tribunal was entitled to conclude that the family impact was harsh but not unduly harsh and that the appellant’s long and serious criminal record, including reoffending after a warning, outweighed the family circumstances. The conclusion was neither irrational nor wrong. The appeal was dismissed. Lady Justice King and Lord Justice Floyd agreed with Lord Justice Irwin.

1. Court of Appeal (Civil Division)—In [2019] EWCA Civ 1763, dismissed the appeal on all three grounds.
2. Upper Tribunal (Immigration and Asylum Chamber)—On 15 December 2017, set aside the First-tier Tribunal’s decision for error of law. On 30 July 2018, reheard the appeal and dismissed it.
3. First-tier Tribunal—Found that deportation would be unduly harsh and that very compelling circumstances existed, allowing the appellant’s human-rights appeal.