Shaban Binaku v The Secretary of State for the Home Department

A party who obtains the exact outcome sought in the First-tier Tribunal cannot appeal under section 11 of the Tribunals, Courts and Enforcement Act 2007 against adverse findings or reasons alone. A party who succeeds on some grounds but loses on others may appeal in respect of the unsuccessful grounds.

In an Article 8 deportation appeal involving a foreign criminal, the structured statutory scheme in Part 5A of the Nationality, Immigration and Asylum Act 2002 governs the tribunal’s task. It applies equally where a person re-enters the United Kingdom in breach of a deportation order. Paragraph 399D of the Immigration Rules cannot add a further threshold or alter the statutory exceptions and very compelling circumstances test.

The appellant, a foreign criminal from Kosovo, had been deported and later re-entered the United Kingdom in breach of a deportation order. He challenged the refusal of his human rights claim based on family life with his British wife and two British children.

The First-tier Tribunal accepted that removal would be unduly harsh for the children under section 117C(5) of the Nationality, Immigration and Asylum Act 2002, but treated that conclusion as only one factor in the paragraph 399D exercise and dismissed the appeal.

The Upper Tribunal considered whether the appellant could appeal against particular findings despite succeeding on the relevant ground, and whether satisfaction of the statutory family life exception was determinative notwithstanding paragraph 399D.

1. Procedural issue. The observations on section 11 were obiter because the procedural issue was academic. The appellate regime is concerned with outcomes, namely the determination of the available grounds of appeal. A party who has achieved the exact outcome sought cannot appeal merely against findings or reasons. A party with partial success may appeal in respect of an unsuccessful ground. Devani [2020] EWCA Civ 612 was binding on this issue. Anwar [2017] EWCA Civ 2134 concerned the scope of section 13(1), not the identity of a person entitled to appeal under section 13(2), and was distinguishable.
2. Statutory framework. By section 117A(1) of the Nationality, Immigration and Asylum Act 2002, the tribunal must apply Part 5A when determining an Article 8 appeal. In foreign criminal deportation cases, section 117C provides the structured approach. That approach produces a result compatible with Article 8 and governs the tribunal’s task, rather than the Immigration Rules.
3. A person who re-enters the United Kingdom in breach of an extant deportation order remains within the deportation regime for the purposes of sections 117A(2)(b) and 117C(7). The statutory scheme applies consistently to pre-removal cases, exclusion after removal, and attempts to remove a person who has re-entered.
4. Paragraph 399D has no role in applying sections 117C(4), (5) or (6). It cannot impose an additional very exceptional circumstances threshold or operate as a further factor in the very compelling circumstances assessment. If Exception 2 under section 117C(5) is satisfied, the public interest does not require deportation and the appeal succeeds.
5. Section 117C(7) requires the tribunal to connect the statutory considerations to the convictions relied on in the decision under appeal. All convictions relied on may be relevant, but matters not relied on as the reason for the decision are outside the mandatory statutory exercise.
6. The First-tier Tribunal therefore erred by treating satisfaction of Exception 2 as merely one factor under paragraph 399D. Its decision was set aside and the decision was re-made by allowing the appeal on Article 8 grounds. No fee was paid or payable.

• Upper Tribunal (Immigration and Asylum Chamber): The decision of the First-tier Tribunal, promulgated on 25 February 2020, was set aside for error of law. The appeal was re-made and allowed on Article 8 grounds.