LE (St Vincent And the Grenadines) v The Secretary of State for the Home Department

In deportation cases involving foreign criminals sentenced to less than four years, section 117C requires a very high threshold. The effect on a qualifying child or partner is “unduly harsh” only where it goes beyond the harshness necessarily involved in deportation. If the statutory exceptions do not apply, deportation may be resisted only by showing very compelling circumstances sufficient to outweigh the strong public interest in removal. That assessment is evaluative and flexible, but such cases are rare. Military service and the Armed Forces Covenant may be relevant circumstances, but they create no statutory exception and cannot override the statutory scheme. The Covenant does not, without more, make deportation unduly harsh or establish very compelling circumstances.

The appellant, a former Royal Marine and citizen of St Vincent and the Grenadines, appealed against two Upper Tribunal decisions concerning a deportation order made after his conviction and sentence of two years’ imprisonment for dishonestly making false representations. The First-tier Tribunal had allowed his human rights appeal, finding deportation unduly harsh for his children. The Upper Tribunal set that decision aside for error of law and, after rehearing the case, dismissed the appeal.

The appellant challenged both decisions. He argued that the First-tier Tribunal had not erred and that the Upper Tribunal had failed to give proper weight to the Armed Forces Covenant when applying section 117C of the Nationality, Immigration and Asylum Act 2002. The central issues were whether the statutory tests of undue harshness and very compelling circumstances were satisfied, and what significance could be attached to military service and the Covenant.

1. Appeal dismissed. The First-tier Tribunal had erred in law. It failed to apply the high threshold in section 117C(5) of the Nationality, Immigration and Asylum Act 2002, which requires consequences for a child or partner going beyond the inevitable disruption and upset caused by deportation. It also conducted a conventional Article 8 proportionality exercise instead of applying the statutory requirement for very compelling circumstances under section 117C(6).

2. The Upper Tribunal was entitled to set aside that decision and remake the case. An appeal on a point of law does not permit substitution of a decision merely because a different factual conclusion might have been reached. Here, however, the First-tier Tribunal’s misdirection was a genuine error of law.

3. For a medium offender, the statutory scheme permits reliance on very compelling circumstances even where the exceptions are not established. The test is stringent, and cases capable of outweighing the public interest in deportation will be rare. The assessment remains flexible and must consider the circumstances relied upon collectively. There is no additional Article 8 balancing exercise outside the structured statutory scheme.

4. European human rights jurisprudence is relevant to the assessment of very compelling circumstances, although no relevant Strasbourg authority was identified on the facts of this case.

5. The Upper Tribunal did consider the Armed Forces Covenant and the submissions based on it. Military service may form part of the evaluative assessment, but it does not automatically amount to very compelling circumstances. The Covenant is silent on non-UK service personnel who commit criminal offences, and neither it nor section 117C creates a special exception for them. Its recognition of the stresses of military family life cannot override the statutory regime.

6. On the findings concerning the appellant’s limited relationship with one child and occasional contact with the other, deportation would not be unduly harsh. His military service, family circumstances and personal history did not amount to very compelling circumstances. The appeal was dismissed.

1. Court of Appeal (Civil Division) [2020] EWCA Civ 505: appeal dismissed.

2. Upper Tribunal, Immigration and Asylum Chamber: on 28 September 2018, set aside the First-tier Tribunal’s decision for error of law; on 6 February 2019, dismissed the remade appeal against the deportation order.

3. First-tier Tribunal: on 20 February 2018, allowed the appeal, holding that deportation would be unduly harsh for the appellant’s children and disproportionate to family life.