Section 117C(6): Severe Child Autism and Primary Care Realities Can Amount to “Very Compelling Circumstances”; Limited Role for OASys Risk Predictions

Case: Secretary of State for the Home Department v Ojaleye
Citation: [2026] EWCA Civ 950 (Court of Appeal (Civil Division), 23 July 2026)
Judges: Males LJ, Lewis LJ, Jeremy Baker LJ

1. Introduction

This appeal concerned the statutory deportation regime for “foreign criminals” and the heightened protection of the public interest where a person has been sentenced to at least four years’ imprisonment. The respondent (a Nigerian national) received a sentence of seven years for conspiracy to defraud involving fraudulent applications to the Covid-era “Bounce Back Loan Scheme”.

The First-tier Tribunal (“FTT”) allowed the respondent’s Article 8 appeal against deportation on the basis that there were “very compelling circumstances, over and above those described in Exceptions 1 and 2” under section 117C(6) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). The Upper Tribunal (“UT”) dismissed the Secretary of State’s appeal. The Secretary of State then appealed to the Court of Appeal.

The factual core of the case was the impact of deportation on the respondent’s four children (C1–C4), particularly C3 and C4 who had diagnoses of autism and attended a specialist school catering for the “highest level of autistic needs”. The Secretary of State had (notably) conceded before the FTT that Exceptions 1 and 2 were met (subject to a caveat about the parental relationship with one mother), meaning the case was argued on whether the higher bar in section 117C(6) was nevertheless satisfied.

2. Summary of the Judgment

The Court of Appeal dismissed the Secretary of State’s appeal. Although parts of the FTT’s reasoning were poorly expressed (and included clear misstatements), the Court held that the FTT had identified the correct ultimate issue and was, “just”, entitled on the evidence to conclude that section 117C(6) was met.

• Approach to section 117C(6): Errors in phrasing about “balancing” did not vitiate the decision because the FTT had earlier framed the correct statutory question and remained focused on it.
• Seriousness/culpability: The FTT did not commit a material error by not making a separate “culpability” determination; the seriousness of offending was already fully reflected in the sentence and sentencing remarks.
• Children’s welfare evidence: Given the exceptional severity of C3 and C4’s autism and the accepted evidence of their needs, their behaviour, and the mother’s inability to cope without extensive support, the FTT’s conclusion was within the range of reasonable outcomes.
• OASys: Lewis LJ added that tribunals are generally not assisted by OASys-style risk prediction reports when conducting the section 117C(6) exercise.
• Concessions: Males LJ warned that concessions at FTT level set the framework for subsequent appeals, and expressed concern that the concessions made here (on Exceptions 1 and 2) appeared surprising on their face.

3. Analysis

3.1 Statutory Framework Applied

The Court restated the well-established structure of Part 5A of the 2002 Act (sections 117A–117C) in deportation cases:

• General rule: Deportation of foreign criminals is in the public interest (section 117C(1)), and the more serious the offence, the greater the public interest (section 117C(2)).
• Medium offenders (< 4 years): Deportation is required unless Exception 1 or 2 applies (section 117C(3)–(5)).
• Serious offenders (≥ 4 years): Deportation is required unless there are “very compelling circumstances, over and above those described in Exceptions 1 and 2” (section 117C(6)).

3.2 Precedents Cited and Their Influence

(a) NA (Pakistan) v SSHD

NA (Pakistan) v SSHD [2017] 1 WLR 707 supplied the roadmap for applying section 117C and, for serious offenders, emphasised that Exceptions 1 and 2 remain relevant only as a reference point: the decision-maker considers whether factors of the kind in those Exceptions (and any additional factors) are sufficiently forceful to satisfy section 117C(6). The Court of Appeal applied that structured approach and treated the FTT’s task as a tightly constrained statutory evaluation rather than a free-standing Article 8 proportionality exercise.

(b) HA (Iraq) v SSHD and KO (Nigeria) v Secretary of State for the Home Department

HA (Iraq) v SSHD [2022] UKSC 22 was central to two points:

• “Unduly harsh”: The judgment reiterated the MK self-direction endorsed in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53: “unduly harsh” is a highly elevated threshold, well beyond ordinary hardship. This mattered because “very compelling circumstances” is higher still.
• Seriousness of offending: At [60] and [66]–[71] (as cited), HA (Iraq) explains that the sentence is ordinarily the “surest guide” to seriousness, while recognising (with care to avoid double counting) that the nature of offending and what influenced sentence (e.g., guilty plea credit, personal mitigation) can sometimes be relevant.

The Court used HA (Iraq) to reject the Secretary of State’s submission that the FTT had to conduct a separate “culpability” inquiry beyond what the sentencing judge had already determined and what the sentence already embodied.

(c) Hesham Ali v Secretary of State for the Home Department

The Court referenced Hesham Ali v Secretary of State for the Home Department [2016] 1 WLR 4799 (and also Hesham Ali v SSHD [2016] UKSC 60) for the proposition that Parliament may structure how Article 8 proportionality is assessed in deportation cases, including the weight to be given to the public interest in deporting foreign criminals. The Court treated imprecise wording by the FTT (“strong” vs “very strong” public interest) as non-material given the FTT’s earlier correct self-direction and focus on section 117C(6).

(d) SSHD v Lewis

The Court relied on SSHD v Lewis [2026] EWCA Civ 879 (also summarised as Secretary of State for the Home Department v Lewis [2026] EWCA Civ 899) for a disciplined view of the role of Strasbourg factors and for restating that serious offenders cannot “benefit” from Exceptions 1 and 2, even if they can show the kinds of impacts those Exceptions describe; the question remains whether there are “very compelling circumstances” over and above those impacts.

(e) Appellate restraint and reasons challenges: “Kapikanya” and authorities

Jeremy Baker LJ adopted the (Secretary of State’s own) summary at [20] of Kapikanya, drawing together principles from: AH (Sudan) v Secretary of State for the Home Department [2007] UK HL 49, MA (Somalia) v Secretary of State for the Home Department [2010 UKSC 49, R (Jones) v First Tier Tribunal and Criminal Injuries Compensation Authority [2013] UKSC 19, UT (Sri Lanka) v The Secretary of State for the Home Department [2019] EWCA Civ 1095, A4 (Nigeria) v Secretary of State for the Home Department [2020] EWCA Civ 1296, and MM (Lebanon) v Secretary of State for the Home Department [2017] UKSC 10.

These authorities supported the Court’s refusal to set aside the FTT decision based on textual infelicities, where the tribunal had (i) identified the correct legal issue, (ii) made clear findings on the evidence, and (iii) reached a conclusion that was not irrational or perverse.

(f) R v Maughan

R v Maughan [2022] 1 WLR 2820 was cited within the HA (Iraq) extract to explain the rationale for guilty plea credit—relevant here because the sentencing judge had reduced sentence for plea timing and personal mitigation. That context underpinned the Court’s conclusion that the sentence nonetheless remained a reliable measure of seriousness for deportation purposes.

3.3 Legal Reasoning

(a) Ground 1: “Balancing” and the public interest language

The Secretary of State argued that the FTT’s reference to a “balancing approach” and its omission (in places) of “over and above” demonstrated a flawed method, compounded by describing the public interest as merely “strong”.

The Court accepted that the FTT’s phrasing in places was wrong, but treated that as non-material because:

• the FTT had correctly framed the decisive issue earlier (explicitly including “over and above”);
• the FTT repeatedly signposted the exceptional nature of the test and the seriousness of the offending; and
• the FTT’s reasoning showed it would have dismissed the appeal but for the specific evidence about the younger autistic children.

(b) Ground 2: seriousness, culpability, and OASys

The Court treated the respondent’s seven-year sentence (with remarks indicating an intended sentence around eight years before reductions) as placing the case well above the serious offender threshold. It held the FTT did not err by stating it was not required to determine “culpability”: properly understood, the FTT could rely on sentence and sentencing remarks as capturing seriousness.

On risk of reoffending:

• Jeremy Baker LJ held that OASys “low risk” was of limited relevance in the section 117C context, consistent with the caution in HA (Iraq) about rehabilitation evidence.
• Lewis LJ went further: tribunals will generally not be assisted by OASys-type predictive reports and are “not required, and are not equipped” to make risk predictions for section 117C(6) analysis.

(c) Ground 3: children’s welfare, evidential sufficiency, and perversity

The Secretary of State argued the FTT’s findings were inadequately reasoned and/or perverse, pointing to the absence of medical evidence about the mother’s mental health and the fact that the family had coped during imprisonment.

The Court rejected that challenge as an impermissible attempt to re-argue weight and factual evaluation. Although it suggested that a “more searching analysis” of childcare arrangements would have been “apposite”, it held the decision fell within the range of reasonable determinations given:

• the exceptionally severe autism described by the specialist school evidence (basic tasks, pervasive daily impact, need for structure/consistency);
• accepted evidence that the children were triggered by unfamiliar carers and that this escalated challenging behaviours;
• accepted evidence of the mother’s emotional collapse under strain (including being on antidepressants and experiencing “breakdowns” as described by multiple witnesses);
• findings that the respondent provided near-daily practical and emotional support and served as the “glue” maintaining sibling relationships across two households with non-communicating mothers; and
• the indefinite nature of separation on deportation (as distinct from time-limited separation due to imprisonment).

3.4 Impact

4. Complex Concepts Simplified

4.1 “Foreign criminal”, “medium offender”, “serious offender”

• A “foreign criminal” includes a non-British citizen sentenced to at least 12 months’ imprisonment (UK Borders Act 2007).
• A “medium offender” is typically someone sentenced to less than four years. They can succeed under Exception 1 (private life) or Exception 2 (partner/child impact).
• A “serious offender” is sentenced to four years or more. For them, even if the effects on family/children would be “unduly harsh”, deportation is still required unless section 117C(6) is met.

4.2 “Unduly harsh”

“Unduly harsh” is not ordinary hardship. Following KO (Nigeria) and HA (Iraq), it requires a severe or bleak impact going well beyond what is typically expected where a parent is deported.

4.3 “Very compelling circumstances, over and above…”

For serious offenders, the law assumes deportation is required even where there is very significant private life disruption or unduly harsh effects on children/partners. The person must show something additional—or factors of the same kind but of an exceptionally powerful degree—such that deportation would be disproportionate despite the very high public interest.

4.4 “Perverse” or “irrational” findings

An appellate court will not overturn a decision just because it would have decided differently. “Perversity” requires a conclusion that no reasonable tribunal could reach on the evidence. This case illustrates how high that bar is, especially where the FTT has made clear credibility findings and engaged with the core evidence.

5. Conclusion

[2026] EWCA Civ 950 confirms that, in serious offender deportation cases, the section 117C(6) test is stringent but not illusory: exceptionally severe child disability and the realities of day-to-day care may, on strong evidence, amount to “very compelling circumstances”. The Court also reinforced appellate restraint in reviewing FTT reasoning, cautioned against overreliance on OASys-style risk prediction in section 117C(6) analysis, and highlighted how concessions at first instance can shape (and constrain) the litigation that follows.