Introduction

In Nguyen v Secretary of State for the Home Department [2025] EWCA Civ 1452, the Court of Appeal has delivered definitive guidance on the scope of Part 5A of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) in the context of appeals against refusals to revoke deportation orders where the appellant has already been removed and applies from abroad. The central issue was whether section 117C — which sets out the Article 8 public interest framework for the deportation of foreign criminals — applies to such revocation appeals. The First‑tier Tribunal (FtT) had held that section 117C did not apply because “deportation” in that provision was forward‑looking and concerned only prospective removal. The Upper Tribunal (UT) disagreed, set aside the FtT’s decision, and remade the decision dismissing the appeals. The Court of Appeal dismissed Mr Nguyen’s appeal, endorsing the UT’s approach.

The case engages three interlocking questions:

• Does Part 5A — and section 117C in particular — apply to Article 8 appeals where the appellant is outside the UK and seeks revocation of an existing deportation order?
• How do the Immigration Rules interact with the statutory Part 5A scheme in such appeals?
• What weight can the passage of time and post‑deportation conduct bear in meeting the demanding “very compelling circumstances” threshold under section 117C(6)?

The Court answers each of these. First, it holds that “deportation” in Part 5A includes the maintenance of exclusion under a deportation order; section 117C therefore applies to revocation appeals from abroad. Secondly, in judicial Article 8 appeals the tribunal must decide the appeal by applying Part 5A rather than treating the Immigration Rules as determinative, albeit the Rules often mirror Part 5A. Thirdly, mere passage of time, even coupled with compliance and remorse, will not ordinarily meet the “very compelling circumstances” standard required to outweigh the strong public interest in deportation.

Summary of the Judgment

• The Court of Appeal dismissed Mr Nguyen’s appeal against the UT’s decisions identifying an error of law in the FtT and remaking the decisions to dismiss his appeals against (i) the refusal to revoke a deportation order, and (ii) the refusal of entry clearance.
• Part 5A applies whenever a court or tribunal must determine whether an immigration decision breaches Article 8. In “cases concerning the deportation of foreign criminals,” section 117C must be applied. That includes appeals against refusal to revoke deportation orders where the appellant has already been deported and now applies from abroad.
• The term “deportation” in Part 5A is used in a broad, regime‑wide sense. It covers not only the act of removal but also the continued prohibition on entry imposed by a deportation order under section 5(1) of the Immigration Act 1971.
• Because the appellant had already been deported, the Exceptions in section 117C(4) and (5) (especially Exception 2 — “unduly harsh” to a qualifying partner or child) were not available on the facts; the appeal therefore turned on whether there were “very compelling circumstances” under section 117C(6). There were not.
• The FtT erred in law by treating section 117C as inapplicable and by approaching the Article 8 proportionality exercise through the lens of the Immigration Rules (paragraphs 390ff) as if they displaced the statutory scheme. On its own findings (“none of this is very compelling”), the FtT could not lawfully have allowed the appeal.
• Passage of time since the order, and compliance post‑removal, are relevant but rarely decisive and did not amount to “very compelling circumstances.” Satisfaction of the Rules does not itself amount to very compelling circumstances in the statutory proportionality analysis.
• A practice point: where the UT identifies an error of law but retains the case to remake the decision, the UT’s error‑of‑law and remaking decisions merge for the purposes of any further appeal to the Court of Appeal.

Analysis

Precedents Cited and Their Influence

The Court’s reasoning sits within, and re‑affirms, a line of authority establishing the structure of Article 8 proportionality in deportation cases:

• NA (Pakistan) v SSHD [2016] EWCA Civ 662; [2017] 1 WLR 207:
  The Court of Appeal held that, notwithstanding the structure of section 117C, medium offenders (12 months to less than 4 years’ imprisonment) may succeed under section 117C(6) (“very compelling circumstances”) even if they do not meet Exceptions 1 or 2. This “obvious drafting error” approach has been implicitly accepted at Supreme Court level (see below), and the Court of Appeal is bound by it. Nguyen confirms and operationalises NA (Pakistan) by emphasising that section 117C(6) governs revocation appeals by foreign criminals where Exceptions 1 and 2 are not available.
• HA (Iraq) v SSHD [2022] UKSC 22; [2022] 1 WLR 3784:
  The Supreme Court clarified the standard for “unduly harsh” in Exception 2: a notably elevated threshold, not merely “uncomfortable, inconvenient, undesirable or difficult.” It also synthesised the “very compelling circumstances” exercise, underscoring the very strong public interest in deportation and that rehabilitation typically carries modest weight. Nguyen applies HA (Iraq)’s guidance to a revocation context, reinforcing the demanding nature of the Section 117C tests.
• KO (Nigeria) v SSHD [2018] UKSC 53; [2018] 1 WLR 5273:
  Confirmed the narrowing effect of Part 5A — designed to bring consistency and predictability to Article 8 decision‑making and to constrain free‑ranging proportionality analyses. Nguyen takes that policy seriously; it rejects interpretations that would sidestep Part 5A in revocation appeals.
• AM (Belarus) v SSHD [2024] UKSC 13; [2025] AC 629:
  Reiterated acceptance of NA (Pakistan), supporting the Court of Appeal’s reliance on it in Nguyen.
• IT (Jamaica) v SSHD [2016] EWCA Civ 932; [2017] 1 WLR 240:
  The FtT’s view that section 117C does not apply to revocation was at odds with how IT had proceeded (where it was “effectively common ground” that section 117C applied). Although IT’s specific reasoning was later disapproved in KO (Nigeria) insofar as it imported a “very compelling reasons” gloss into Exception 2, Nguyen notes that the Supreme Court did not disturb the premise that section 117C applies to revocation contexts.
• Binaku (s.11 TCEA; s.117C NIAA; para 399D) [2021] UKUT 34 (IAC):
  The UT held that Part 5A governs the judicial Article 8 assessment across the deportation regime — including revocation from abroad — and that the analysis “begins and ends” with Part 5A, not paragraph 399D or other Rules. Nguyen aligns the Court of Appeal with the substance of that approach and thereby elevates Binaku’s position to Court of Appeal‑endorsed orthodoxy.
• Hesham Ali v SSHD [2016] UKSC 60; [2016] 1 WLR 4799:
  Provided the general balance of public interest factors in Article 8 proportionality. Nguyen invokes that matrix when affirming how “very compelling circumstances” must be assessed.
• EYF (Turkey) v SSHD [2019] EWCA Civ 592; [2019] 4 WLR 69 and YM (Uganda) v SSHD [2014] EWCA Civ 1292:
  Cited mainly in the context of the Rules (including the timing of which version applies in the UT). Nguyen distinguishes the role of the Rules from the controlling statutory framework in Article 8 appeals.
• Procedural authorities: VOM (Error of law – when appealable) Nigeria [2016] UKUT 410; AA (Iraq) v SSHD [2017] EWCA Civ 944; [2018] 1 WLR 1083; Terzaghi v SSHD [2019] EWCA Civ 2017:
  Confirm that where the UT retains a case to remake it, the error‑of‑law and remade decisions merge for appeal purposes. Nguyen reiterates that practice point.

Legal Reasoning

The Court’s core reasoning proceeds in three steps.

1. Part 5A applies; “deportation” is regime‑wide, not event‑specific.
   Section 117A(1) applies Part 5A whenever a court or tribunal must determine if a decision under the Immigration Acts breaches Article 8 and is unlawful under section 6 of the Human Rights Act 1998. Section 117A(2)(b) directs that in “cases concerning the deportation of foreign criminals,” the tribunal must have regard to section 117C. The Court holds that the term “deportation” in this context is not confined to the act of physically removing a person from the UK. By virtue of section 5(1) of the Immigration Act 1971, a deportation order requires a person to leave and prohibits re‑entry while it remains in force. Thus, the deportation regime includes ongoing exclusion under the order and decisions as to its revocation. A human rights appeal against refusal to revoke a deportation order is therefore a “case concerning the deportation of a foreign criminal,” triggering section 117C.
2. Exceptions vs very compelling circumstances: the architecture of section 117C.
   Section 117C(1)–(2) states the strong public interest in deportation of foreign criminals, intensified with greater seriousness of offending. For medium offenders (sentenced to at least 12 months but less than four years), section 117C(3) sets a general rule — deportation is required unless Exception 1 or Exception 2 applies. On NA (Pakistan), however, medium offenders may also rely on section 117C(6) (very compelling circumstances) even if they do not satisfy the Exceptions. In revocation appeals by those already deported, the Exceptions, being forward‑looking (e.g., whether it would now be unduly harsh “if C were deported”), will often be ill‑suited on the facts. The analysis therefore commonly turns on section 117C(6). That is precisely what the FtT failed to do: despite finding “none of this is very compelling,” it allowed the appeal. The UT correctly identified that error and remade the decision, and the Court of Appeal agreed.
3. Rules vs statute: the tribunal’s proportionality assessment must be under Part 5A, not by treating the Rules as determinative.
   The FtT gave primacy to paragraph 390 and allied provisions of the Immigration Rules (revocation of deportation orders) and treated satisfaction of those Rules as reducing the public interest in immigration control to “zero.” The Court of Appeal rejects that approach. In judicial Article 8 appeals, Part 5A is the controlling framework; the Rules may echo it but cannot displace or dilute the statutory public interest calculus. In practice, the Rules and section 117C often point in the same direction, but it is section 117C which governs the tribunal’s legal analysis and outcome.

Applying that analysis to the facts, the UT’s assessment — no Exception 2 and no “very compelling circumstances” — was unimpeachable. The Court emphasizes features familiar from HA (Iraq): the elevated standard for “unduly harsh,” the very strong public interest in deportation, the limited weight commonly attaching to rehabilitation (especially where it is evidenced principally by non‑reoffending), and the importance of deterrence and public concern beyond risk of harm. Time elapsed since removal is relevant but rarely pivotal. On the preserved FtT findings, Mr Nguyen’s case was far from the “very compelling” end of the spectrum.

Impact and Significance

Nguyen carries immediate and systemic implications for immigration tribunals, practitioners, and caseworkers:

• Part 5A applies across the deportation lifecycle: Appeals against refusals to revoke deportation orders (including those brought from abroad) are “cases concerning the deportation of foreign criminals.” Tribunals must apply section 117C. Attempts to exclude Part 5A by characterising revocation as beyond “deportation” should cease.
• Binaku effectively endorsed: The Court aligns with the UT’s position that the judicial Article 8 analysis “begins and ends” with Part 5A; paragraph 399D and other Rules are not the starting point for the tribunal’s proportionality evaluation (though they may mirror section 117C).
• Very compelling circumstances remain exceptional: Time, remorse, low risk, and relationship maintenance through visits and contact will rarely, without more, reach the section 117C(6) threshold. Practitioners must assemble holistic, concrete evidence of truly compelling features if they are to dislodge the powerful public interest in maintaining exclusion.
• NA (Pakistan) reaffirmed and highlighted: The Court underscores (via Lady Justice Andrews’ postscript) that NA (Pakistan) remains binding and should be squarely engaged in submissions for medium offenders, including in the revocation context.
• Rules cannot neutralise statutory public interest: Satisfaction of revocation‑related Rules does not reduce the public interest in deportation to “zero.” In Article 8 appeals, parity with section 117C is the touchstone.
• Procedural clarity on UT appeals: Where the UT finds an error of law and remakes the decision, the two determinations merge for appeal; a standalone appeal against the error‑of‑law decision is not available unless the case is remitted.

Complex Concepts Simplified

• Part 5A (sections 117A–117D) of the 2002 Act: A statutory scheme telling courts and tribunals how to decide Article 8 proportionality in immigration cases. It codifies public interest factors, intending to limit open‑textured discretion and promote consistency.
• “Foreign criminal” (section 117D): A non‑British citizen convicted in the UK and sentenced to imprisonment of at least 12 months (among other categories). Mr Nguyen, sentenced to two years, falls within this definition.
• “Cases concerning the deportation of foreign criminals” (section 117A(2)(b)): This covers decisions to deport, decisions to refuse revocation of deportation orders, and decisions to refuse entry clearance because a deportation order remains in force. “Deportation” is not just the act of removal; it includes ongoing exclusion.
• Exception 2: “Unduly harsh” (section 117C(5)): Applies if a foreign criminal’s deportation would be unduly harsh on a “qualifying partner” or “qualifying child.” Following HA (Iraq), “unduly harsh” is a “highly elevated” threshold; harshness must be severe or bleak, not merely difficult. Adult children are not “qualifying children.”
• Very compelling circumstances (section 117C(6)): If Exceptions 1 and 2 do not apply, deportation is required unless very compelling circumstances, over and above those exceptions, make deportation disproportionate under Article 8. This is a demanding standard. All factors are weighed against a “very strong” public interest in deportation, including deterrence and public confidence.
• Immigration Rules vs statute: The Rules (e.g., paragraphs 390–391A, 398–399D) express the Secretary of State’s policy and often reflect Part 5A, but they are not delegated legislation and do not control the tribunal’s legal test in an Article 8 appeal; the tribunal must apply Part 5A. The Rules remain central to the Secretary of State’s own decision‑making, and where no Article 8 appeal lies, public law challenge (judicial review) may be the appropriate route.
• Public interest rationales: The public interest in deporting foreign criminals is not solely about risk reduction; it also encompasses deterrence and broader public concern. Rehabilitation (especially where evidenced only by absence of reoffending) typically carries limited weight.
• Appeal structure and “merger” principle: Under the Tribunals, Courts and Enforcement Act 2007, if the UT finds an error of law and remakes the decision, its determinations merge for appeal purposes. Appeal lies only against the final, remade decision unless the case is remitted.

Case Background and Procedural Context

Mr Nguyen, a Vietnamese citizen born in 1966, entered the UK using a false identity, had his asylum claim refused, and in May 2007 was convicted of producing cannabis and sentenced to two years’ imprisonment. The sentencing judge recommended deportation; the Secretary of State made a deportation order, and Mr Nguyen was deported in October 2007. In February 2019, he applied from Vietnam for revocation of the deportation order; this was refused in December 2020. He sought entry clearance in December 2019; this was refused in July 2022 because the deportation order remained in force. The FtT allowed both appeals. The UT found the FtT erred in law and remade the decisions, dismissing both appeals. The Court of Appeal dismissed the appeal from the UT.

The UT preserved certain FtT findings: Mr Nguyen maintained family life with his wife and adult son; he had a low risk of reoffending and genuine remorse; his wife regularly visited him in Vietnam; he had work, housing, and family support there; his wife and adult son were settled and well in the UK. On those facts, the UT concluded Exception 2 was not met and very compelling circumstances were absent — conclusions the Court of Appeal affirmed.

Practical Implications and Guidance

• For appellants and advisers:
  • In revocation appeals by foreign criminals, expect section 117C to govern the Article 8 analysis. Prepare for a section 117C(6) case unless an Exception plausibly applies.
  • Do not rely on the Immigration Rules as determinative of proportionality. They may be cited for context but Part 5A governs the tribunal’s decision.
  • Time since deportation, compliance, remorse, and low reoffending risk, while relevant, are ordinarily not enough. Robust, particularised evidence will be needed to establish “very compelling circumstances.”
  • Be realistic about Exception 2: it applies to “qualifying partners” and “qualifying children.” Adult children are not qualifying children. The unduly harsh standard is exacting.
• For the Secretary of State / ECO decision‑makers:
  • In human rights appeals, expect tribunals to apply Part 5A rather than the Rules as the decisive legal framework. Draft refusal letters mindful of the Part 5A structure to withstand appellate scrutiny.
  • Be cautious about arguments that NA (Pakistan) is inapplicable to medium offenders in revocation cases; Nguyen underscores that NA (Pakistan) remains binding.
• For the tribunals:
  • Avoid the FtT’s error of treating “deportation” as exclusively forward‑looking. Maintenance of exclusion is within “deportation” for section 117C.
  • When Exceptions are not available, proceed to a full section 117C(6) proportionality analysis, expressly weighing the statutory public interest factors.
  • Where the UT retains and remakes, remember the merger principle for any further appeals.

Conclusion

Nguyen provides authoritative clarification on a recurring point of principle: “deportation” in Part 5A of the 2002 Act encompasses the entire statutory regime, including the maintenance of exclusion by a deportation order. Consequently, section 117C applies to Article 8 appeals against the refusal to revoke a deportation order, even when the appellant has already been deported and applies from abroad. In such cases, Exceptions 1 and 2 will often be inapplicable on the facts, so the analysis will typically turn on whether “very compelling circumstances” exist under section 117C(6). Mere passage of time, compliance, and low risk of reoffending seldom suffice to overcome the very strong public interest in deportation grounded in deterrence and public confidence as well as protection of the public.

The decision also reinforces the primacy of the statutory framework over the Immigration Rules in judicial Article 8 determinations. Tribunals must conduct the proportionality assessment through the lens of Part 5A. The Court’s explicit reaffirmation of NA (Pakistan), including in a revocation context, is a salient reminder that medium offenders who cannot meet Exceptions 1 or 2 must still be assessed under section 117C(6) — but that the threshold is demanding.

Key takeaways:

• Section 117C applies to revocation appeals from abroad; “deportation” includes ongoing exclusion under a deportation order.
• In Article 8 appeals, tribunals decide by reference to Part 5A; the Immigration Rules do not displace the statutory test.
• Exception 2’s “unduly harsh” threshold is very high; outside the Exceptions, only “very compelling circumstances” will suffice.
• NA (Pakistan) remains binding and active; counsel should engage with it squarely.
• Passage of time and post‑deportation compliance, without more, are unlikely to meet section 117C(6).

Nguyen thus sets a clear, coherent template for future revocation appeals by foreign criminals: the Part 5A framework governs; “deportation” is a regime, not a one‑off event; and the public interest in deportation remains potent long after removal.