Khadija Akhtar v Secretary of State for the Home Department

In an appeal by a medium offender against deportation, a tribunal applying section 117C(6) must conduct a proportionality assessment against the strong public interest in deportation. It must consider whether there are very compelling circumstances over and above those described in Exceptions 1 and 2. The tribunal need not mechanically repeat every factor already analysed under the Exceptions, provided its decision, read fairly as a whole, shows that it understood the statutory structure and weighed the relevant circumstances. An appellate court should be slow to infer that a specialist fact-finding tribunal overlooked matters merely because it did not mention them again. Evidence of no further offending usually has little or no weight. Positive rehabilitation may carry some weight, but rarely great weight.

The Secretary of State decided that Mrs Akhtar, who had lived in the United Kingdom since 1985 and had indefinite leave to remain, should be deported following her conviction for participation in a substantial mortgage fraud. She had received consecutive sentences which, in aggregate, exceeded four years. She had five adult British children, including a son who relied heavily on her assistance.

The First-tier Tribunal dismissed her appeal. The Upper Tribunal set that decision aside because the wrong statutory test had been applied, then reheard the case and dismissed the appeal in determination 3. Permission to appeal to the Court of Appeal was granted only on the ground that the Upper Tribunal had failed to consider all relevant circumstances under section 117C(6) of the Nationality, Immigration and Asylum Act 2002. The central issue was whether the tribunal had to repeat expressly, in its consideration of section 117C(6), all matters previously considered under Exceptions 1 and 2.

1. Appeal dismissed. The Upper Tribunal had not misdirected itself and had correctly understood that, although Mrs Akhtar was a medium offender, section 117C(6) remained available to her.
2. Section 117C(6) requires a proportionality assessment in which all relevant circumstances are weighed against the strong public interest in deportation. The statutory reference to circumstances described in Exceptions 1 and 2 does not prevent reliance on matters falling within those descriptions, provided the case is sufficiently compelling and goes beyond a bare case under an Exception.
3. The Upper Tribunal had carefully considered Exceptions 1 and 2, finding that Mrs Akhtar failed to satisfy them by a considerable margin. It then stated the section 117C(6) test correctly and assessed proportionality. Read fairly as a whole, determination 3 showed that the tribunal considered the section 117C(6) issue against the background of all its earlier findings. It was not required mechanically to list those matters again.
4. The caution in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22 applied. An appellate court should respect the fact-finding role of a specialist tribunal and should not infer that a relevant matter was ignored merely because it was not mentioned again. The tribunal was also entitled not to refer expressly to a probation letter recording only a low risk of reoffending. In the absence of positive rehabilitation evidence, any omission would have been immaterial.
5. Yalcin v Secretary of State for the Home Department [2024] EWCA Civ 74 was not a safe analogy because it concerned a serious offender and a tribunal which had, in substance, found that section 117C(6) was met. Finally, the complaint that the Upper Tribunal failed to consider matters not advanced before it could not succeed where the tribunal had fully addressed the submissions actually made.

• Court of Appeal (Civil Division): dismissed the appeal against determination 3.
• Upper Tribunal (Immigration and Asylum Chamber): set aside the First-tier Tribunal’s determination 1 for error of law, then reheard the matter in determination 3 and dismissed the appeal.
• First-tier Tribunal (Immigration and Asylum Chamber): dismissed the appeal against the deportation decision.