Hiep Xuan Nguyen v Secretary of State for the Home Department

Part 5A of the Nationality, Immigration and Asylum Act 2002 applies across the statutory deportation regime. It governs an Article 8 appeal against refusal to revoke an existing deportation order, including where the foreign criminal applies from abroad. The forward-looking language of Exceptions 1 and 2 does not displace sections 117 C(1), (2), (3) and (6). A medium offender may potentially rely on section 117 C(6), consistently with NA (Pakistan) [2016] EWCA Civ 662. The Immigration Rules cannot replace Part 5A in tribunal decision-making. Passage of time and compliance may be relevant, but do not alone amount to very compelling circumstances where the Article 8 claim is weak.

The appellant was convicted of producing cannabis, received a two-year sentence and was deported to Vietnam in 2007. He later applied for revocation of the deportation order and for entry clearance. The Secretary of State refused both applications.

The First-tier Tribunal allowed both appeals. The Upper Tribunal found errors of law, set aside the First-tier Tribunal’s decisions and remade the decisions by dismissing the appeals. The central issue was whether Part 5A of the Nationality, Immigration and Asylum Act 2002, particularly section 117 C, applied to an Article 8 appeal against refusal to revoke a deportation order where the appellant was already abroad.

The appeal was dismissed unanimously. Lady Justice Laing gave the leading judgment, with Lord Justice Nugee and Lady Justice Andrews agreeing.

1. The Upper Tribunal was entitled to set aside the First-tier Tribunal’s determination. Section 12 of the Tribunals, Courts and Enforcement Act 2007 required only a finding that the decision involved an error of law. It was unnecessary to dissect precisely whether the First-tier Tribunal had disapplied all of Part 5A or only section 117 C.
2. In Part 5A, deportation means each stage of the statutory deportation regime. It includes a refusal to revoke an existing deportation order, whether the application is made inside or outside the United Kingdom. The forward-looking language of Exceptions 1 and 2 does not restrict sections 117 C(1), (2), (3) and (6) in that way. An appeal from abroad can succeed only if the appellant satisfies section 117 C(6).
3. The general rule for medium offenders in section 117 C(3) is qualified by NA (Pakistan) [2016] EWCA Civ 662. A medium offender who cannot rely on Exceptions 1 or 2 may potentially rely on section 117 C(6). The statutory scheme must be applied in accordance with that binding construction.
4. The Immigration Rules cannot replace Part 5A in the tribunal’s judicial decision-making. The First-tier Tribunal therefore erred by deciding the human-rights appeal under paragraph 390 of the Rules and by adopting an approach departing from the statutory scheme.
5. The mere passage of time since deportation, and compliance with the deportation order, could not amount to very compelling circumstances where the Article 8 claim was weak. The fact that the appellant met most of the requirements of Appendix FM was likewise insufficient. The Upper Tribunal was entitled to find that Exception 2 was not met and that the circumstances did not outweigh the public interest in maintaining deportation.
6. The second appeal depended entirely on the first. Once the Upper Tribunal was entitled to remake the first decision, it was also entitled to find an error of law in, and remake, the second decision.

1. Court of Appeal (Civil Division) dismissed the appellant’s appeal against the Upper Tribunal’s error-of-law and remaking decisions.
2. Upper Tribunal (Immigration and Asylum Chamber) found errors of law in the First-tier Tribunal’s determinations, set them aside and remade the decisions by allowing the Secretary of State’s appeals.
3. First-tier Tribunal (Immigration and Asylum Chamber) had allowed the appellant’s appeals against refusal to revoke the deportation order and refusal of entry clearance.