Revocation of deportation order case fails in the Court of Appeal

The Court of Appeal has made clear that Part 5A of the Nationality, Immigration and Asylum Act 2002, which sets out the public interest considerations when considering article 8 in a deportation case, applies to decisions on revocation of a deportation order when the applicant is outside the UK. The case is Nguyen v Secretary of State for the Home Department [2025] EWCA Civ 1452.

Background

The appellant is a Vietnamese national who was convicted of producing cannabis, sentenced to two years’ imprisonment and deported in 2007. His wife and son remained in the UK. He applied for the deportation order to be revoked on 7 February 2019 and this was refused on 31 December 2020. He had also applied for entry clearance to join his family on 15 December 2019 and this was refused on 6 July 2022, on the grounds that there was a deportation order in place.

Both decisions were appealed and the First-tier Tribunal allowed both appeals. One of the matters to be determined was the correct framework for considering revocation of a deportation order. In the refusal to revoke, the Home Office decision maker had considered the immigration rules under deportation and article 8 (from A398) first, before moving on to consider the rules on revocation and concluding that “Mr Nguyen had not provided evidence of the ‘very strong’ article 8 claim which would be necessary to outweigh ‘the significant public interest in maintaining’ the Order”.

The First-tier Tribunal considered that the decision maker had failed to apply the relevant provisions of the immigration rules, which at the time of the decision included:

391. In the case of a person who has been deported following conviction for a criminal offence, the continuation of a deportation order against that person will be the proper course:

(a) in the case of a conviction for an offence for which the person was sentenced to a period of imprisonment of less than 4 years, unless 10 years have elapsed since the making of the deportation order when, if an application for revocation is received, consideration will be given on a case by case basis to whether the deportation order should be maintained, or …

Unless, in either case, the continuation would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees, or there are other exceptional circumstances that mean the continuation is outweighed by compelling factors.

Section 117C of the Nationality, Immigration and Asylum Act 2002 sets out the “additional considerations in cases involving foreign criminals” under article 8, including that the “deportation of foreign criminals is in the public interest” and that the public interest requires deportation in the case of foreign criminals sentenced to less than four years imprisonment unless one of two exceptions can be applied. Exception 2 is where the applicant “has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh”.

The tribunal considered that the “unduly harsh” threshold was not met in this case, but also concluded that section 117C of the 2002 Act did not apply to revocation of a deportation order, because deportation had already happened. The tribunal said that the wording of section 117C indicated that it applies only before deportation has taken place.

Instead the tribunal considered that the immigration rules contained the Home Secretary’s assessment of the public interest in not revoking a deportation order. Reference was made to paragraph 42 of EYF (Turkey) v Secretary of State for the Home Department [2019] EWCA Civ 592: “Her view, expressed in her policy, is that consideration will be given on a case-by-case basis to whether the deportation order should be maintained. There is no presumption either way”.

The tribunal concluded that the Home Secretary had wrongly applied a presumption in favour of maintaining the deportation order as in section 117C and not the case specific analysis required under paragraph 390 of the rules. The tribunal accepted that the appellant had a family life with his wife, who had visited him frequently. The tribunal also found that there was little risk of him re-offending. Carrying out a case specific analysis, the tribunal allowed the appeal.

The Home Secretary appealed both decisions to the Upper Tribunal. The Upper Tribunal found an error of law in both First-tier judgments and proceeded to remake the decisions, allowing the two appeals of the Home Secretary. The Upper Tribunal referred to the decision of Binaku (s.11 TCEA: s.117C NIAA; paragraph 399D) [2021] 00034 (IAC) where it was made clear that Part 5A (including section 117C) applies to the whole ‘deportation regime’, including revocation applications from outside the UK.

It was argued on behalf of the appellant that the error was not material, however the tribunal said that “the question which the F-tT asked itself, whether deportation should be maintained by reference to paragraph 390 of the Rules, was ‘materially different from’ any question under section 117C”. The Upper Tribunal held that the appellant did not meet the relevant tests under section 117C and his appeal was dismissed.

The Court of Appeal

The appellant then appealed to the Court of Appeal. The main issue to be determined was whether Part 5A of the Nationality, Immigration and Asylum Act 2002 applied to the appeals.

The court accepted the Home Secretary’s submission:

that the only sensible meaning which can be given to the word ‘deportation’ when it is used in Part 5A is that it includes each stage of the statutory deportation regime. Thus any court which considers a case ‘concerning deportation’ is required to apply Part 5A when considering a human rights appeal based on article 8. It is required to apply Part 5A, as the case may be, to a decision to deport a person who is in the United Kingdom, to a decision to refuse an application for the revocation of deportation made by a person who applies for the revocation from inside the United Kingdom, and to a refusal of an application made by a person who applies for revocation from abroad. The extent to which different provisions of Part 5A do, or do not apply, however, will depend on the issue before the court or tribunal, and on the facts.

The court accepted that the language in section 117C is forward looking, but said that this does not displace the meaning of deportation in Part 5A. The court proceeded to uphold the Upper Tribunal’s decision, finding that:

the F-tT erred in law in not applying section 117C(6) to Mr Nguyen’s appeal, and purporting to allow an appeal on human rights grounds when, on its own approach to the facts, ‘None of this is very compelling’. It follows that the F-tT was also wrong to decide the appeal under the Rules; and by reference to an interpretation of the Rules which departed from the statutory scheme which the Rules are intended to, and do echo

The appeal was dismissed.

Postscript plea

Anyone working on deportation cases would be well advised to note the postscript from Andrews LJ:

103. … I have observed from reading the parties’ written submissions in a number of recent applications for permission to appeal that the important decision of this Court in NA (Pakistan), referred to by my Lady in paragraph [17] above, does not appear to be as familiar as it should be to lawyers who practise in this area.

104. Despite the fact that this authority on the construction of s.117C(3) is now almost 10 years old, and the fact that it has been subjected to consideration by the Supreme Court at least twice without adverse comment, I am still seeing submissions to the effect that in a case of a medium offender, who does not meet Exceptions 1 and 2, section 117C(6) does not apply and the tribunal or the court should look instead at the Rules. It is a matter of great concern to me that those submissions have not been confined to counsel acting on behalf of individual appellants; I have recently seen them being advanced on behalf of the Secretary of State. I hope that paragraph 94 of my Lady’s judgment and this short concurring judgment will help to heighten awareness of an important decision which appears, for whatever reason, to have dropped under the radar.