Secretary of State for the Home Department v Olufemi Adeniyi Ojaleye

For a foreign criminal sentenced to at least four years’ imprisonment, Nationality, Immigration and Asylum Act 2002, section 117C(6), requires deportation unless there are very compelling circumstances which go beyond the circumstances described in Exceptions 1 and 2. The seriousness of offending is ordinarily measured by the sentence, read with sentencing remarks where they show the effect of matters unrelated to seriousness. A low predicted risk of reoffending will usually have very limited relevance.

An appellate court must read a specialist tribunal’s reasons fairly and as a whole. Imperfect language will not establish an error of law where the tribunal identified and applied the correct statutory question. Exceptionally severe needs of qualifying children, their particular dependence upon the offender, and the effect on their principal carer may rationally meet the stringent statutory test.

The respondent, a Nigerian national, was sentenced to seven years’ imprisonment for conspiracy to defraud through fraudulent Bounce Back Loan Scheme applications. The Secretary of State refused his human-rights claim and proposed his deportation.

The First-tier Tribunal allowed his appeal. It found very compelling circumstances under section 117C(6) of the Nationality, Immigration and Asylum Act 2002, principally because two of his children had exceptionally severe autism and depended on his practical and emotional support. The Upper Tribunal dismissed the Secretary of State’s appeal in decision UI-2024-005901.

The Secretary of State appealed, contending that the First-tier Tribunal had misstated the statutory threshold, underestimated the seriousness of the offending, and reached an inadequately reasoned or perverse conclusion about the children’s welfare.

1. Appeal dismissed. The First-tier Tribunal’s decision, although imperfectly expressed in several respects, disclosed no material error of law. It was entitled to find that deportation would be disproportionate.

2. A foreign criminal sentenced to four years or more cannot succeed merely by establishing circumstances falling within Exceptions 1 or 2. Under section 117C(6) of the Nationality, Immigration and Asylum Act 2002, the public interest requires deportation unless there are very compelling circumstances over and above those exceptions. The statutory scheme has already struck the relevant balance.

3. The First-tier Tribunal’s references to a balancing exercise, a “strong” rather than “very strong” public interest, and rehabilitation were erroneous or unhelpful. Read as a whole, however, its decision correctly identified at the outset the statutory issue it had to determine. Its repeated finding that the case would fail but for the younger children’s particular circumstances showed that it applied that issue.

4. The sentence is ordinarily the surest measure of the seriousness of offending. Sentencing remarks may justify adjustment where they reveal the effect of personal mitigation or plea credit. The nature of offending may also matter, but care is required to avoid double counting. Here, the sentencing judge had fully reflected the contemptible nature of the fraud in the sentence. The First-tier Tribunal therefore did not need a separate assessment of culpability. An OASys assessment of low reoffending risk was, at most, of very limited relevance and had not been given significant weight.

5. The First-tier Tribunal could rationally conclude that the exceptionally high level of the two younger children’s autism, their close bond with their father, their difficulty accepting care from unfamiliar people, and the substantial emotional strain on their mother made the consequences of permanent separation exceptionally compelling. A fuller analysis of the father’s pre-imprisonment care and other available support would have been preferable, but the conclusion remained within the range of reasonable decisions.

6. Males LJ additionally stressed that concessions before the First-tier Tribunal define the framework for later appeals. The demanding nature of both the unduly harsh and very compelling circumstances thresholds should be properly understood before concessions are made.

• Court of Appeal (Civil Division): dismissed the Secretary of State’s appeal.
• Upper Tribunal: dismissed the Secretary of State’s appeal from the First-tier Tribunal in decision UI-2024-005901.
• First-tier Tribunal: allowed the respondent’s appeal against refusal of his human-rights claim in decision HU 01262 2024.