William Gadinala v Secretary of State for the Home Department

The Court of Appeal dismissed the appellant's challenge to the Upper Tribunal's decision to allow the Secretary of State's appeal against the First-tier Tribunal. The appeal concerned the application of Part 5A of the Nationality, Immigration and Asylum Act 2002, in particular section 117C(6) and the requirement that deportation of a foreign criminal sentenced to at least four years' imprisonment be justified only in the presence of "very compelling circumstances" above and beyond Exceptions 1 and 2. The First-tier Tribunal had found Exception 2 applied and that there were very compelling circumstances; the Upper Tribunal remade the proportionality assessment after finding that the FTT had misdirected itself by treating the sentence as the "only" indicator of seriousness. The Court of Appeal held that the FTT had erred in law by failing to take into account factors recognised in HA (Iraq) and Sanambar (notably the reduction in sentence for a guilty plea and the effect of youth) and that the UT's remade decision properly assessed seriousness and proportionality, concluding there were no very compelling circumstances to outweigh the public interest in deportation.

This is an appeal from the Upper Tribunal (Judge Rintoul) which allowed the Secretary of State's appeal against a First-tier Tribunal decision that had allowed Mr Gadinala's article 8 claim. The appellant, a Zimbabwean national who committed aggravated burglaries at 18 and received an extended sentence (custodial element 8 years; extension period 4 years), sought to resist deportation under article 8 ECHR. The FTT found Exception 2 under s 117C(5) applied and that there were very compelling circumstances to outweigh the public interest in deportation. The UT set aside that decision and remade the proportionality assessment, concluding the public interest in deportation outweighed the appellant's article 8 rights.

Background and procedural history:

• Nature of the claim: appeal against refusal of asylum and an article 8 claim seeking to remain in the United Kingdom.
• Procedure: FTT allowed the appellant's article 8 appeal (10 February 2023). Secretary of State was granted permission and the UT allowed the Secretary of State's appeal and remade the proportionality decision (31 May 2023; further hearing remade 14 November 2023). The appellant obtained permission to appeal to the Court of Appeal; this judgment is the result of that appeal.

Issues framed by the Court of Appeal:

1. Whether the FTT erred in law by treating the sentence as the sole indicator of the seriousness of the offending instead of accounting for factors identified in authority (for example guilty plea discount and youth).
2. Whether the UT erred in remaking the proportionality assessment and in the weight it gave to public interest factors when balancing against the family and private life factors identified by the FTT.

Court's reasoning (concise):

• The Court summarised relevant principles from HA (Iraq) and Sanambar: the sentence is the "touchstone" of seriousness where other material is not available, but where sentencing remarks are available tribunals may take account of factors unrelated to seriousness that influenced sentence (for example credit for a guilty plea) and may examine the nature and circumstances of the offending while avoiding double counting.
• The Court concluded the FTT had misdirected itself by stating that the sentence was the "only" indicator of seriousness, thereby failing to take proper account of reduction for guilty plea, the effect of youth on sentence and the wider sentencing context (including the extended licence period and assessment of dangerousness). That was an error of law.
• The Court upheld the UT's remade proportionality decision: the UT properly weighed public interest factors (risk of re-offending, deterrence and maintenance of public confidence) and found that the seriousness and harm caused by the earlier offending outweighed the private and family life factors, such that there were no "very compelling circumstances" to prevent deportation under s 117C(6).

The Court also refused the appellant's application for anonymity and explained why public naming was necessary despite potential implications for family members.

The appeal is dismissed. The Court held that the First-tier Tribunal had misdirected itself by treating the sentence as the sole indicator of seriousness and failing to take into account factors such as the guilty plea discount and youth; the Upper Tribunal correctly remade the proportionality assessment and reasonably concluded that the seriousness of the offending outweighed the private and family life factors so that there were no very compelling circumstances under s 117C(6) to prevent deportation.

First-tier Tribunal decision (FTTJ Head) allowed the appellant's article 8 appeal (10 February 2023). Secretary of State appealed to the Upper Tribunal (Judge Rintoul UI-2023-000642); UT set aside parts of the FTT decision, directed a further hearing and then remade the decision dismissing the appeal (31 May 2023 and remade decision 14 November 2023). Falk LJ granted permission to appeal to the Court of Appeal. The Court of Appeal dismissed the appellant's appeal on 15 November 2024 ([2024] EWCA Civ 1410).