Secretary of State for the Home Department v Collins Cuthbert Lewis

For a foreign criminal sentenced to at least four years’ imprisonment, deportation requires assessment under the statutory test of very compelling circumstances over and above those described in Exceptions 1 and 2. General proportionality is insufficient. Expressly deciding whether each exception would hypothetically apply is optional, but the reasoning must demonstrate proper application of the statutory framework. A mere wish to establish future contact with a child, without a subsisting relationship, does not itself exceed the circumstances described in Exception 2. Relevant circumstances require clear factual findings and assessment of their significance and weight. The statutory public-interest considerations concerning financial independence and private life must also be addressed. Whether established circumstances satisfy the statutory threshold involves legal questions and is reviewable for error of law.

Collins Cuthbert Lewis, a national of Dominica, entered the United Kingdom aged 14. His limited leave expired in 2015, after which he remained unlawfully. Following convictions for drug offences and a sentence of three years and nine months’ imprisonment, the Secretary of State refused his human rights claim against deportation. Further drug offences resulted in a sentence of five years and four months’ imprisonment while his appeal was pending.

Mr Lewis had a son with whom he had had no contact since 2019. He also had a diagnosis of post-traumatic stress disorder. The First-tier Tribunal allowed his appeal, relying cumulatively on his wish to establish contact with his son, his mental health and his lack of support in Dominica. The Upper Tribunal dismissed the Secretary of State’s appeal, treating the finding of very compelling circumstances as a factual conclusion open to the First-tier Tribunal.

The Secretary of State appealed to the Court of Appeal. The central issues concerned the correct application of sections 117B and 117C(6) of the Nationality, Immigration and Asylum Act 2002, the adequacy of the factual findings and reasons, and the Upper Tribunal’s approach to reviewing alleged errors of law.

1. The appeal was allowed on both grounds, unanimously. Lewis LJ delivered the substantive judgment, with which Stuart-Smith and Moylan LJJ agreed. Both tribunals had erred, and the matter required remittal for fresh findings and assessment under the statutory framework.

2. Section 117C(6) of the Nationality, Immigration and Asylum Act 2002 required very compelling circumstances over and above those described in Exceptions 1 and 2. The inquiry concerned satisfaction of that statutory test, rather than proportionality in a general sense. The public interest in deportation increased with the seriousness of the offending. The approach in Kapikanya v Secretary of State for the Home Department and Yalcin v Secretary of State for the Home Department was applied.

3. A tribunal was not legally required expressly to determine whether either exception would hypothetically apply before identifying circumstances exceeding them. Nevertheless, considering the circumstances described in the exceptions first would promote transparency and reduce error. An alternative structure had to demonstrate that the relevant facts had been identified and the statutory framework properly applied.

4. Mr Lewis had no genuine and subsisting relationship with his son and had played no part in his life for approximately six years. On those facts, deportation could not rationally be considered unduly harsh for the child. A genuine wish to establish future contact was less than the circumstances described in Exception 2 and could not itself constitute circumstances over and above them. Any separate protective effect for Mr Lewis required explanation and assessment, including the likelihood of contact being established.

5. The tribunal needed clear findings about Mr Lewis’ mental condition and the difficulties he would face in Dominica. It then had to assess their relevance and weight under section 117C(6). The court left the mental-health issue open for reconsideration. It drew attention to the stringent approach to differences in medical treatment discussed in NA (Pakistan) v Secretary of State for the Home Department.

6. The First-tier Tribunal had also omitted the statutory consideration of financial independence. Little weight was to be given to private life formed during limited leave and subsequent unlawful residence. An earlier suggestion that Mr Lewis might have qualified for indefinite leave did not alter his actual immigration status.

7. Identifying circumstances involved factual findings, but assessing whether they satisfied section 117C(6) involved legal questions. The Upper Tribunal had wrongly treated that assessment as purely factual. When dismissing an appeal, it also had to address the grounds and give sufficient reasons explaining their failure. The matter was remitted for reconsideration.

• Court of Appeal (Civil Division): In [2026] EWCA Civ 879 , unanimously allowed the Secretary of State’s appeal on both grounds. Both tribunals had erred, and the matter was remitted for fresh factual findings and statutory assessment.
• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Hoffman and Deputy Upper Tribunal Judge Zucker dismissed the Secretary of State’s appeal. They treated the assessment of very compelling circumstances as a factual conclusion open to the First-tier Tribunal.
• First-tier Tribunal: Allowed Mr Lewis’ appeal against refusal of his human rights claim, finding very compelling circumstances which outweighed the public interest in deportation.
• Secretary of State: Refused the human rights claim on 8 July 2021. Following further convictions, a supplementary decision dated 2 September 2024 maintained that deportation was proportionate and in the public interest.