Sofian Majera v The Secretary of State for the Home Department

For a foreign criminal sentenced to at least four years, section 117C(6) of the Nationality, Immigration and Asylum Act 2002 requires a full Article 8 proportionality assessment. Deportation remains required unless private or family life circumstances are very compelling, go well beyond a bare case under either statutory exception, and outweigh the strong public interest. The assessment must reflect the seriousness of the offending, public safety, deterrence and all relevant current circumstances. Positive rehabilitation must be considered, but ordinarily has limited weight and principally reduces the public-safety component of the public interest; mere non-offending usually has little or no weight. An adequately reasoned decision must identify the competing factors, facts and weights. On error of law, the Upper Tribunal normally remakes the decision itself.

The appellant, a foreign criminal sentenced to imprisonment for public protection with a seven-year minimum term, challenged refusal to revoke a 2012 deportation order. The First-tier Tribunal allowed his Article 8 appeal in 2022, principally relying on rehabilitation and the passage of time. The Upper Tribunal set that decision aside for inadequate reasoning and remade the decision, dismissing the appeal. The appellant challenged the adequacy of the First-tier Tribunal’s reasoning, the Upper Tribunal’s decision to retain and remake the appeal, and the assessment of rehabilitation, delay, mental health and expert evidence. The central issues were the application of section 117C(6) and the proper exercise of the Upper Tribunal’s powers under section 12 of the Tribunals, Courts and Enforcement Act 2007.

Lord Justice Warby delivered the leading judgment. Lady Justice King and Lord Justice Bean agreed. The appeal was dismissed on all grounds.

1. Very compelling circumstances. Section 117C(6) requires a full Article 8 proportionality assessment. The circumstances relied on must be within Article 8, must be very strong indeed, and must go well beyond a bare case under Exception 1 or Exception 2. The test is not confined to exceptionally harsh cases falling within those exceptions, but qualifying cases will be rare. The approach was consistent with HA (Iraq) v SSHD [2022] UKSC 22 and the authorities considered there.
2. Public interest and rehabilitation. The seriousness of the offending remains relevant, including the reasons for the sentence and the sentencing remarks. The public interest includes public safety and deterrence. Positive rehabilitation must be considered, but usually carries little or no material weight unless supported by evidence reducing the risk of reoffending. Its principal effect is to reduce the public-safety aspect of the public interest. The court left open the argument that rehabilitation might also include positive social reintegration, but the First-tier Tribunal had not explained that approach.
3. First-tier Tribunal decision. An adequately reasoned proportionality decision must identify the applicable legal principles, relevant factors and facts on both sides, the weight assigned to competing considerations, and how the result follows. A balance-sheet format is unnecessary. The First-tier Tribunal had not adequately assessed the seriousness of the offending, the public interest, the appellant’s Article 8 interests, the effect of return, the weight given to rehabilitation, or the requirement that circumstances go beyond the statutory exceptions. The errors were material, so the Upper Tribunal was entitled to set the decision aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.
4. Remaking or remittal. The ordinary course under section 12 is for the Upper Tribunal to remake the decision. Remittal is an exception where the original error deprived a party of a fair hearing or where the nature and extent of necessary fact-finding make remittal appropriate under the overriding objective. There is no general entitlement to a fresh two-tier process. The Upper Tribunal was entitled to direct a de novo hearing and to receive updated evidence.
5. Remade decision. The Upper Tribunal properly considered the serious offending, low but not excluded reoffending risk, rehabilitation, delay, mental-health evidence and the position at the hearing date. Delay reduced, but did not eliminate, the public interest. Expert evidence did not bind the tribunal, and the conclusion that the appellant had not established very compelling circumstances involved no material error of law. No order was made on the SSHD’s correspondence application.

1. Court of Appeal (Civil Division): dismissed the appeal on all grounds.
2. Upper Tribunal (Immigration and Asylum Chamber): set aside the First-tier Tribunal’s decision for error of law and remade the decision, dismissing the appeal.
3. First-tier Tribunal: allowed the appellant’s appeal against refusal to revoke the deportation order on the basis that very compelling circumstances existed.