Khadija Akhtar v Secretary of State for the Home Department

This Court of Appeal dismissed an appeal against an Upper Tribunal (Immigration and Asylum Chamber) determination upholding a deportation decision. The principal legal issue was the correct application of section 117 C(6) of the Nationality, Immigration and Asylum Act 2002 (Part 5A), in particular whether the UT had failed to consider all relevant circumstances when deciding whether there were "very compelling circumstances" over and above the statutory Exceptions 1 and 2. The court held that the UT correctly understood and applied the statutory structure: it had considered the Exceptions, found they did not apply, and then carried out the required proportionality assessment under section 117 C(6). Any omission to repeat particular findings when moving to the proportionality exercise did not amount to legal misdirection and, if there were any defect, it was immaterial. The decision emphasises that tribunals need not mechanically re-state every matter already considered under the Exceptions when performing the section 117 C(6) assessment.

This is an appeal from determination 3 of the Upper Tribunal (Immigration and Asylum Chamber) concerning a decision by the Secretary of State dated 6 September 2018 to deport Mrs Akhtar to Pakistan following her conviction for multiple fraud offences and a custodial sentence. Mrs Akhtar, a Pakistani national with indefinite leave to remain since 2000 and five adult British children, was convicted in 2016 for long-running mortgage fraud and received consecutive and concurrent sentences which together made her a foreign criminal for the purposes of Part 5A of the Nationality, Immigration and Asylum Act 2002.

Procedural posture and relief sought: The appellant appealed the Secretary of State’s decision to the First-tier Tribunal (which dismissed the appeal). The Upper Tribunal set aside that F-tT decision (determination 2) and conducted a full rehearing, producing determination 3 (22 October 2022) which dismissed the appeal on article 8 grounds. The appellant sought permission to appeal to the Court of Appeal. Permission to appeal was refused on all grounds except one: whether the UT had failed to consider all relevant circumstances when applying section 117 C(6). Permission was then granted on that ground and the appeal was heard in this court.

Issues framed by the court:

• Whether the UT misdirected itself about the relationship between Exceptions 1 and 2 and the "very compelling circumstances" test in section 117 C(6) (Part 5A).
• Whether the UT, in applying section 117 C(6), failed to take into account relevant matters it had considered when determining the Exceptions, such that its proportionality assessment was legally flawed.
• Whether any omission to repeat or restate findings previously made rendered the UT decision unlawful or materially affected the result.

Relevant factual and evidential background: Mrs Akhtar had lived in the United Kingdom since 1985, has ILR, and five British children. She and her husband were convicted for substantial mortgage fraud; her husband received a lengthy sentence. The UT found her a medium offender (sentence less than four years in aggregate for a single sentence). Evidence included witness statements from family members, psychiatric reports (reporting depression and obsessive-compulsive disorder, some concern about possible exaggeration), and occupational therapy evidence about the needs of one adult son (Altaf) who relied heavily on her. The UT also recorded evidence about the appellant’s role in a community religious centre and her expression of remorse; there was no persuasive evidence of positive rehabilitation beyond lack of further offending.

Court’s reasoning and outcome: The court reviewed the statutory scheme (Part 5A, sections 117A–117D), earlier authorities (including NA (Pakistan), HA (Iraq), KO (Nigeria), JZ (Zambia), MK (Sierra Leone) and Yalcin) and the UT’s findings. The UT had carefully considered Exceptions 1 and 2 and found they did not apply. It then correctly stated and applied the section 117 C(6) proportionality test and carried out a global assessment. The Court of Appeal held that the UT had not misdirected itself, was not obliged to repeat every matter previously considered when moving to the section 117 C(6) assessment, and had in substance taken all relevant matters into account. Any alleged omission (including non‑reference to a probation officer’s letter about risk of re-offending) was either legally permissible or immaterial on the facts. The appeal was dismissed.

Appeal dismissed. The Court of Appeal held that the UT had correctly understood and applied the statutory framework in Part 5A and section 117 C(6), had considered the Exceptions and then carried out the required proportionality assessment. The UT was not required to repeat, verbatim, every matter it had considered under the Exceptions when performing the section 117 C(6) assessment; no legal misdirection was shown and any omission would have been immaterial.

Decision of the Secretary of State to deport dated 6 September 2018; appeal to the First-tier Tribunal dismissed (determination 1); Upper Tribunal set aside the F-tT decision and ordered a further hearing (determination 2, promulgated 29 July 2020; UT case HU/18439/2018); after rehearing the UT dismissed the appeal (determination 3, promulgated 22 October 2022) and refused permission to appeal to this court; Court of Appeal (this judgment) heard the appeal on 12 March 2024 and handed down judgment on 16 April 2024, [2024] EWCA Civ 354.