Anonymised Summary of Court Opinion

Factual and Procedural Background

The Appellant was convicted of a drugs offence in The State and, on 30 August 2007, the Respondent made a deportation order against him. The Appellant was removed to The Country in 2007. On 7 February 2019 the Appellant applied for the deportation order to be revoked; the Respondent refused that application (Decision 1). The Appellant also applied for entry clearance on 15 December 2019; the Entry Clearance Officer refused that application (Decision 2), citing the existing deportation order as the reason.

The Appellant appealed both refusals to the First-tier Tribunal (Immigration and Asylum Chamber) ("F-tT"), which allowed both appeals (Determinations 1 and 2). The Respondent appealed those determinations to the Upper Tribunal (Immigration and Asylum Chamber) ("UT"). The UT held that the F-tT had erred in law (Determination 3) and re-made the decisions in favour of the Respondent (Determination 4), allowing the Respondent's appeals. The Appellant obtained permission to appeal to this court and now appeals the UT's conclusions.

Legal Issues Presented

1. Whether Part 5A of the Nationality, Immigration and Asylum Act 2002 (the statutory scheme dealing with Article 8 public interest considerations) applies in whole or in part to an appeal where the applicant has already been deported and is outside The State (i.e., whether sections such as section 117C apply to revocation applications made from abroad).
2. If Part 5A applies, whether the First-tier Tribunal erred in law by not applying section 117C to the Appellant's appeal and instead applying the relevant provisions of the Immigration Rules.
3. Whether the UT erred in setting aside the F-tT's determination and re-making the decision in favour of the Respondent.
4. Whether the passage of time between the making of the deportation order and the revocation application, or the fact that the Appellant met the relevant provisions of the Immigration Rules, could amount to "very compelling circumstances" under section 117C(6) sufficient to displace the public interest in deportation.

Arguments of the Parties

Appellant's Arguments (as advanced by Attorney Symes)

• The language of section 117C (and related provisions) is predominantly forward-looking and cannot sensibly apply to a person who has already been deported and is applying for revocation from abroad; in particular, references to "a decision to deport" indicate future or pending deportation rather than the maintenance of an existing deportation order.
• The F-tT was correct to apply the factors in paragraph 390 of the Immigration Rules (including the passage of time since the Order) and to treat the lapse of time as a decisive factor in favour of revocation.
• The fact that the Appellant satisfied the requirements of the relevant parts of the Immigration Rules (Appendix FM and the Rules provisions on revocation) could amount to "very compelling circumstances" or at least materially affect the proportionality assessment under Article 8.
• Any error in the F-tT's reasoning (as identified by the UT) was immaterial to the outcome on the facts of this case.

Respondent's Arguments (as advanced by Attorney Smyth and Attorney Jackson)

• Part 5A applies to the whole deportation regime and therefore applies to appeals against a refusal to revoke a deportation order, including applications made from abroad; the word "deportation" includes the statutory deportation regime and the maintenance of a deportation order after removal.
• The F-tT erred in law by treating section 117C as inapplicable to revocation applications made from abroad; the UT was entitled to identify that error and to set aside and re-make the F-tT's decision.
• Interpreting section 117C as restricted to future removals would produce perverse results and be inconsistent with the legislative purpose described in higher authority (consistency, predictability and narrowing discretion).
• The remedies in the Immigration Rules for revocation outside Article 8 are administrative and do not displace the Article 8 adjudicative task governed by Part 5A when an Article 8 appeal is engaged.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Precedent A (referred to in the opinion as NA (Pakistan))	Construction of section 117C(3): corrected an obvious drafting omission so that medium offenders (sentences between 12 months and 4 years) can rely on the section 117C(6) "very compelling circumstances" test in appropriate cases.	The court treated Precedent A as binding and applied its corrective construction when interpreting section 117C(3) in this appeal.
Precedent B (referred to in the opinion as HA (Iraq))	Summary and authoritative exposition of Part 5A, including interpretation of the "unduly harsh" test and how Part 5A narrows discretionary judgment in Article 8 cases; accepted the correctness of Precedent A.	The court relied on Precedent B for the general interpretative approach to Part 5A and for principles about the unduly harsh/very compelling circumstances tests.
Precedent C (referred to in the opinion as KO (Nigeria))	Provided interpretative points about Part 5A used by higher courts to explain Parliament's intention to clarify Article 8 application in immigration cases and to promote consistency.	The court relied on the points derived from Precedent C (as summarised in Precedent B) to support a purposive construction of Part 5A.
Precedent D (referred to in the opinion as IT (Jamaica))	Examined the unduly harsh test and suggested that revocation of a deportation order may require "very compelling reasons" (Court of Appeal reasoning discussed; later scrutiny by Supreme Court in another appeal).	The court described the history and treatment of Precedent D, noting that parts of its reasoning were not upheld by higher court authority and that it did not decide every point relied on below.
Precedent E (referred to in the opinion as EYF (Turkey))	Observation that where ten years has elapsed since a deportation order, it may be easier on the facts to argue for revocation, but revocation is not automatic and remains fact-dependent.	The F-tT had relied on Precedent E on the significance of the passage of time; the court recorded that observation but held it did not displace the statutory tests in Part 5A.
Precedent F (referred to in the opinion as TZ (Pakistan))	Referenced by the F-tT in relation to the application of the Rules and paragraph 391; used as part of reasoning on the Rules' content.	The F-tT cited Precedent F in support of its approach to the Rules, but the UT and this court held that Part 5A rather than the Rules governs Article 8 appeals of this kind.
Precedent G (referred to in the opinion as YM (Uganda))	Established that the UT (but not this court) must apply the provisions of the Immigration Rules that are in force at the date of the UT's decision (if relevant to the appeal).	The court recorded Precedent G as common ground and noted its application to UT decision-making (but emphasised that Part 5A governs judicial Article 8 decision-making when it applies).
Precedent H (referred to in the opinion as Odelola)	Authority for the proposition that the Immigration Rules are not delegated legislation.	The court noted this as background on the nature of the Rules when discussing their relation to Part 5A.
Precedent I (referred to in the opinion as Hesham Ali)	Listed factors identified by the European Court of Human Rights as relevant to Article 8 proportionality assessments; used as guidance on weight to be given to those factors.	The court relied on Precedent I as authority for the range of factors to be considered and that the weight of those factors is case-specific.
Precedent J (referred to in the opinion as Binaku, a UT Presidential Panel decision)	Held that Part 5A applies to the whole deportation regime, including revocation applications from abroad, and that tribunals must apply Part 5A rather than the Rules in Article 8 appeals.	The UT relied on Precedent J to support its conclusion that the F-tT erred in law by not applying Part 5A (including section 117C) to the Appellant's revocation appeal from abroad.
Precedent K (referred to in the opinion as VOM (Error of law — when appealable), AA (Iraq), Terzaghi)	Authorities concerning the appealability to this court of UT determinations that set aside and re-make F-tT decisions: where the UT re-makes the decision, the appellant can only appeal against the UT's overall decision, not the UT's error-identification in isolation.	The court applied these authorities to determine the proper scope of the Appellant's appeal to this court (i.e., that the appeal lies against both the UT's error-of-law determination and its re-making decision).

Court's Reasoning and Analysis

The court began by framing the procedural posture: the UT had concluded the F-tT erred in law by treating section 117C (and Part 5A generally) as inapplicable to an appeal from abroad and had re-made the decisions accordingly. The Appellant challenged that conclusion.

The court accepted that there is a meaningful factual distinction between (a) appeals by persons who have already been deported and are outside The State and (b) appeals by persons who remain inside The State and face impending removal. The court, however, held that this factual distinction does not imply that Part 5A or section 117C is inapplicable to those who have already been deported. On the contrary, the court adopted a broad meaning of "deportation" in Part 5A, concluding that it covers the whole statutory deportation regime, including the maintenance of exclusion after removal and applications made to revoke an existing deportation order from abroad.

The court analysed the statutory text of sections 117A, 117B and 117C and concluded:

• Part 5A applies where a court or tribunal must decide whether an immigration decision breaches Article 8; that statutory obligation extends to "cases concerning the deportation of foreign criminals" and therefore encompasses revocation appeals from abroad.
• Although some language in section 117C is framed in forward-looking terms (references to a "decision to deport" or to considerations relevant before removal), that does not limit the application of other subsections (including sections 117C(1), (2), (3) and (6)) to revocation cases brought from abroad.
• Precedent A's corrective construction of section 117C(3) (allowing medium offenders to seek to rely on section 117C(6)) is binding and applicable in the context of revocation appeals where Part 5A applies.

The court found the F-tT's reasoning flawed because the F-tT:

• treated paragraph 390 of the Immigration Rules as governing the decision when the appeal raised Article 8 grounds, rather than applying Part 5A and section 117C;
• construed section 117C as only applying to future deportation decisions and not to the maintenance of an existing deportation order;
• applied an incorrect threshold and failed to give proper weight to the statutory public interest in deportation as articulated in section 117C.

The UT's analysis (upholding Part 5A's application and applying section 117C) was therefore endorsed. The court emphasised that the extent to which particular provisions in Part 5A apply will depend on the facts and issues before the tribunal, but that the framework itself governs Article 8 appeals concerning deportation, whether pre- or post-removal.

On the specific alternative grounds advanced by the Appellant (passage of time and reliance on the Immigration Rules), the court held that these were insufficient on the facts to qualify as the "very compelling circumstances" required by section 117C(6). The court noted that while the passage of time (and the provisions of the Rules) might be relevant factors, they could not, in this case, displace the statutory public interest in deporting foreign criminals given the relative weakness of the Appellant's Article 8 claim.

Holding and Implications

Holding: The court dismissed the Appellant's appeal and upheld the UT's determinations setting aside the F-tT's decisions and re-making them in favour of the Respondent. The court concluded that Part 5A of the 2002 Act (including section 117C) applies to revocation applications brought from abroad by persons who have been deported, and that the F-tT erred in law by not applying section 117C.

Implications:

• The immediate consequence is that the UT's re-made decisions (Determination 4) stand: the Appellant's appeal against the Respondent's refusals is dismissed.
• The court reaffirmed that Part 5A governs Article 8 appeals "concerning deportation" across the deportation regime, including revocation applications made from abroad; this confirms the UT's approach (as in the UT Presidential Panel decision relied upon by the UT).
• The court treated earlier authorities (including the corrective construction in Precedent A) as binding and emphasised that meeting the Immigration Rules or the mere passage of time will not automatically or generally satisfy the "very compelling circumstances" threshold in section 117C(6).
• No new expansive precedent beyond the court's interpretative application of existing authorities and the reaffirmation of Part 5A's scope was established; the decision applies the existing statutory framework and precedents to the facts of this case.

Disposition

APPEAL DISMISSED.

Administrative Notes

This summary has been prepared strictly from the text of the provided opinion and all names and identifying details have been anonymised. No information beyond that contained in the opinion has been added or inferred.