Court of Appeal dismisses deportation appeal despite evidence of rehabilitation

In Majera v Secretary of State for the Home Department [2025] EWCA Civ 1597, the Court of Appeal considered the right approach to the ‘very compelling circumstances’ test in deportation cases where the foreign criminal claims to have been rehabilitated. This is a useful reminder of the limited weight that is given to rehabilitation in these cases.

Background

Mr Majera is a Rwandan national who arrived in the UK in April 1997 at the age of 15. He committed serious offences of robbery in 2006. He was sentenced to imprisonment for public protection (IPP) with a minimum term of seven years, eventually being let out after nine. In 2012, he was made subject to a deportation order, and his appeal against that was dismissed in 2014.

In September 2015, having been released from imprisonment and detention, Mr Majera applied for the deportation order to be revoked. Six years later, in October 2021, this application was refused by the Home Office. He appealed against the refusal to revoke the order and this was heard in September 2022.

At the point of the appeal, Mr Majera had not been involved in crime since his release. It had been 16 years since the occurrence of the index offences. He argued that his rehabilitation and the length of time since the commission of the offences should figure prominently in any assessment of the lawfulness of his deportation.  

Rehabilitation in deportation appeals

Where a foreign criminal has received a criminal sentence of four years or more, they will only succeed in an appeal against deportation where they can demonstrate ‘very compelling circumstances’ exist in their case as set out in s117C(6) Nationality Immigration and Asylum Act 2002.

The ‘very compelling circumstances’ test requires the court to consider all relevant circumstances of the case and to weigh them against the very strong public interest in deportation. Warby LJ giving judgment in the Court of Appeal in this case, provides a summary (paragraphs 5 to 13) of the relevant case law, mainly derived from the Supreme Court’s decision in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22.

The starting point is that rehabilitation counts for very little (paras 14-16) per HA (Iraq):

58. In a case where the only evidence of rehabilitation is the fact that no further offences have been committed then, in general, that is likely to be of little or no material weight in the proportionality balance. If, on the other hand, there is evidence of positive rehabilitation which reduces the risk of further offending then that may have some weight as it bears on one element of the public interest in deportation, namely the protection of the public from further offending

…

141. … the fact that a potential deportee has shown positive evidence of rehabilitation, and thus of a reduced risk of re-offending, cannot be excluded from the overall proportionality exercise. The authorities say so, and it must be right in principle in view of the holistic nature of that exercise. Where a tribunal is able to make an assessment that the foreign criminal is unlikely to re-offend, that is a factor which can carry some weight in the balance when considering very compelling circumstances. The weight which it will bear will vary from case to case, but it will rarely be of great weight bearing in mind that, as Moore-Bick LJ says in Danso, the public interest in the deportation of criminals is not based only on the need to protect the public from further offending by the foreign criminal in question but also on wider policy considerations of deterrence and public concern.

It often comes as a surprise to clients that rehabilitation is given such little weight. But other than in the most extraordinary circumstances, rehabilitation will likely be run only as a supplementary argument in a deportation appeal.

The rehabilitation of Mr Majera

Mr Majera argued in this appeal that he was a changed man. He presented evidence that was accepted by the First-tier Tribunal that his impressive attitude and behaviour and excellent conduct in prison had led the Parole Board to recommend in 2013 that he move to open prison conditions and that he be released in 2015 (para 29).

Mr Majera further relied upon the report of a forensic psychologist which stated that he had ‘defied all odds despite his very poor and difficult living conditions’ and that his performance since release supported an assessment that his risk of reoffending was low and was unusual (para 29).

Perhaps surprisingly given the legal context outlined above, the First-tier Tribunal allowed the appeal, summarising its findings as follows (para 30):

I consider the appellant, who is now a 41-year-old man, has approached his rehabilitation in an exceptional, impressive, and noteworthy manner. Having considered the circumstances in the appellant’s case, I find the passage of time has reduced the public interest in deportation, I find his circumstances can be described as very compelling, such that the deportation order should be revoked. When conducting the proportionality assessment, I find the very compelling circumstances of the appellant’s case, outweigh the public interest in deportation.

Less surprisingly, the Home Office sought to appeal the decision to the Upper Tribunal, which took the view that the First-tier Tribunal had erred in law by failing to take into account all the relevant circumstances and not giving adequate reasons for its conclusion that such ‘weight was to be given to rehabilitation that it, together with the passage of time, was sufficient to tip the balance in the appellant’s favour’ in the proportionality assessment (para 31).

The decision was remade by the Upper Tribunal, and Mr Majera’s appeal dismissed. Even giving credit to the appellant for his conduct since his release, the Upper Tribunal was not satisfied that the public interest was weakened to the point where it was capable of being outweighed by the appellant’s article 8 claim (para 33).

Judgment in the Court of Appeal

In his appeal to the Court of Appeal, Mr Majera argued that the determination of the First-tier Tribunal contained sufficient reasoning. However, finding to the contrary, the Court of Appeal explained how the ‘balance sheet exercise’ within the proportionality exercise should take place:

The decision-maker must have in mind the relevant legal principles; they must identify the factors that are relevant on each side of the equation, and the relevant facts; they must decide what weight should be given to the competing considerations and why; and they must conduct a reasoned proportionality assessment that properly reflects the applicable legal principles. The reasons given must sufficiently indicate that these criteria are met, and enable the losing party and an appeal body to understand how the result was arrived at. If that is done then due deference should be given by an appellate tribunal.

In this case, held the Court of Appeal, this had not been done. Its reasons included the fact that there was no acknowledgment of the general rule identified in HA (Iraq) that rehabilitation will ordinarily be given little if any weight, and nothing to identify or explain the weight that was in fact given to it in this case. 

In dismissing the appeal, the Court of Appeal confirmed that the Upper Tribunal was not under a duty to remit the appeal to the First-tier Tribunal, so that the appellant could benefit from a two-tier appeal regime.

Comment

Given the very heavily pro-deportation statutory context in which deportation law operates, if a tribunal judge takes a view that ‘very compelling circumstances’ exist in a case, they will need to provide – at least – very detailed reasons if the determination is to survive the very likely onward appeals in the Upper Tribunal, and the Court of Appeal (not the first time we have made this point on Free Movement!). Saying that, given the Supreme Court’s stance on the weight to be given to rehabilitation in deport appeals in HA (Iraq), it is difficult to envisage a determination – however carefully written – which could succeed on a rehabilitation ground alone.