MS v The Secretary of State for the Home Department

For the purposes of Nationality, Immigration and Asylum Act 2002, section 117C(6), the assessment of very compelling circumstances is a wide-ranging and case-specific evaluative exercise. The tribunal must assess the particular strength of the public interest in deportation, including the seriousness of the offence under section 117C(2), rather than treating the four-year sentencing threshold as the only measure of seriousness.

The self-contained Exceptions in section 117C(4) and (5) do not dictate a different approach under section 117C(6). General deterrence may remain a relevant element of the public interest. Rehabilitation, integration, family life and obstacles to reintegration must be weighed cumulatively, but may be insufficient to outweigh an exceptionally strong public interest arising from very serious offending.

The appellant, a Philippine national who had arrived in the United Kingdom as a young child, appealed against the refusal of his protection and human-rights claims and the consequent deportation decision. He had received a life sentence, with a minimum term of ten years, for conspiracies involving aggravated burglary and burglary.

The First-tier Tribunal dismissed the appeal. It found that Exception 1 in section 117C(4) of the Nationality, Immigration and Asylum Act 2002 was met, but that there were no very compelling circumstances sufficient to outweigh the public interest in deportation. The Upper Tribunal set that decision aside for error of law because the First-tier Tribunal had treated the public interest as paramount.

When remaking the decision, the Upper Tribunal considered whether section 117C(6), properly construed after KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53, permitted regard to the particular seriousness of the offence and to general deterrence.

1. The appeal was dismissed. The First-tier Tribunal had erred by describing the public interest in deportation as paramount. Its decision was set aside, but the Upper Tribunal remade the decision by dismissing the appeal.
2. Section 117C(6) requires a broad evaluative assessment of whether there are very compelling circumstances over and above the circumstances described in Exceptions 1 and 2. Unlike those Exceptions, it is not a self-contained, hard-edged factual test. The tribunal must identify the strength of the public interest in the individual case and assess whether the circumstances favouring the foreign criminal carry sufficient weight to overcome it.
3. In that assessment, section 117C(2) requires regard to the seriousness of the particular offence, together with other relevant public-interest considerations. The distinction between sentences below and of at least four years does not exhaust the relevance of seriousness. KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53 did not require the contrary conclusion.
4. There was nothing in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60 requiring general deterrence to be excluded from the public-interest assessment. The court distinguished deterrence from an emotive notion of societal revulsion.
5. Exception 1 was satisfied. The appellant had spent most of his life in the United Kingdom and would face very significant obstacles to reintegration in the Philippines. His rehabilitation, qualifications, mental-health needs and family ties were weighty factors. Nevertheless, his life sentence followed crimes of exceptional seriousness. Those factors did not amount, collectively, to very compelling circumstances capable of outweighing the extremely strong public interest in deportation.

• Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal decision was set aside for error of law and the appeal was remade and dismissed.
• First-tier Tribunal: The appellant's appeal against refusal of his protection and human-rights claims was dismissed. The tribunal found Exception 1 under section 117C(4) of the Nationality, Immigration and Asylum Act 2002 satisfied, but found no very compelling circumstances under section 117C(6).