Anonymized Summary of Decision

Factual and Procedural Background

This appeal concerns a deportation order made on 13 November 2012 (the "Order") in respect of the Appellant, who was treated as a "foreign criminal" under the statutory immigration regime. The Appellant pleaded guilty to a series of violent street robberies in 2006 and was sentenced to imprisonment for public protection (IPP) with a minimum term of seven years. The sentencing judge (Judge Pawlak) recorded the offending as serious, involving group robberies with weapons and significant harm to victims. The Crown Court's sentencing position was later reduced on appeal to IPP by the Court of Appeal, which left the minimum term and the recommendation for deportation intact.

The Appellant was served with the Order in November 2012 and unsuccessfully appealed to the First-tier Tribunal (FtT) (First FtT Decision, July 2013) and then to the Upper Tribunal (UT) (appeal dismissed February 2014). After release from the custodial portion of his sentence (Parole process), the Appellant applied to Company A for revocation of the Order in 2015; Company A eventually refused to revoke in October 2021 (the "Decision"). The Appellant appealed that refusal to the FtT (a fresh hearing before Judge Young-Harry in 2022), which allowed the appeal on the basis that the "very compelling circumstances" test was satisfied (Second FtT Decision, November 2022).

Company A appealed to the UT. UT Judge Jackson set aside the Second FtT Decision for insufficiency of reasons and directed that the appeal be re-made; a fresh hearing before the UT (Judge Mandalia) was held in January 2024. UT Judge Mandalia dismissed the appeal and upheld Company A's Decision (May 2024). The Appellant then appealed to this court seeking restoration of the Second FtT Decision. Attorneys Weston and Dirie (for the Appellant) and Attorney Tabori (for Company A) argued the appeal in this court. The court (Judge King delivering the lead judgment, agreed by Judge Bean) dismissed the appeal.

Legal Issues Presented

1. What is the correct approach to the "very compelling circumstances" test in section 117C(6) of the Nationality, Immigration and Asylum Act (NIAA) where a foreign criminal claims to have been rehabilitated?
2. When the Upper Tribunal sets aside a First-tier Tribunal decision for error of law under section 12 of the Tribunals, Courts and Enforcement Act (TCEA), must the UT remit the case to the FtT (preserving a two-tier process), or may the UT remake the decision de novo?
3. Ancillary issue raised by Company A (Respondent's Notice): whether rehabilitation can, as a matter of law, ever satisfy the very compelling circumstances test, given the public interest in deterrence and wider policy considerations.

Arguments of the Parties

Appellant's Arguments

• The Second FtT Decision should be restored because the FtT had properly applied the very compelling circumstances test and reached a permissible evaluative conclusion based on evidence of rehabilitation, the passage of time since offending, and low risk of reoffending.
• UT Judge Jackson erred in law by setting aside the Second FtT Decision for inadequate reasons and by directing a fresh UT hearing rather than remitting to the FtT, thereby depriving the Appellant of the normal two-tier process.
• UT Judge Mandalia erred in law in re-making the decision: criticisms included alleged failure to analyse the public interest properly, undue reliance on historical sentencing material, insufficient attention to factors giving rise to the offending, and alleged mis-evaluation of expert evidence about mental health/ retraumatisation on return.
• The delay by Company A in reconsidering the revocation application should have been given greater weight in favour of the Appellant.

Company A's Arguments

• The UT was entitled to set aside the Second FtT Decision for insufficiency of reasons because the FtT did not explain why rehabilitation bore the weight attributed to it, how the public interest was assessed, or how the statutory "over and above" hurdle (s.117C(6)) had been satisfied.
• The UT was entitled to re-make the decision under s.12 TCEA; remittal to the FtT is not the default where legal error is found, and established practice and Practice Statements support retention and re-making unless specific exceptions (procedural unfairness or inappropriateness because of necessary fact-finding) apply.
• Rehabilitation is relevant to the proportionality assessment but will rarely be of great weight; deterrence and wider public interest considerations remain relevant and cannot be displaced merely by evidence of rehabilitation.

Table of Precedents Cited

Court's Reasoning and Analysis

The court's analysis proceeded in three main stages corresponding to the Appellant's grounds of appeal: (1) whether the UT was wrong to set aside the Second FtT Decision for inadequate reasons; (2) whether the UT was wrong to re-make the decision de novo instead of remitting to the FtT; and (3) whether the UT's re-made decision involved legal error.

On the first issue the court examined the adequacy of the FtT's reasoning against the standards in the Practice Direction (Reasons for decisions) and the statutory and supervisory authorities governing s.117C(6). The court accepted that the FtT had mentioned the public interest and the seriousness of the offending, but found the reasoning deficient in several respects required by HA (Iraq) and the Practice Direction:

• The FtT did not set out a sufficiently clear assessment of the gravity of the offending or the weight to be attached to the public interest in deportation before discounting that weight for passage of time and rehabilitation; the offending involved a series of ten violent group robberies and the sentence (IPP minimum term) was a strong indicator of seriousness.
• The FtT treated rehabilitation as a matter that increased or exacerbated the interference with Article 8 rights rather than as a mitigating factor on the public interest side of the proportionality balance — an approach inconsistent with HA (Iraq) which treats rehabilitation as mitigating the need for public protection and thus reducing that component of the public interest weight.
• The FtT failed to explain why rehabilitation in this case was "very compelling" in the sense required by s.117C(6), i.e., why it went "over and above" the circumstances described in Exceptions 1 and 2. The decision simply stated that rehabilitation "just tips" the balance without identifying the weight given to competing considerations or how the statutory hurdle was cleared.
• The FtT did not connect the factual findings on mental health, integration and conditions on return to the statutory requirement that very compelling circumstances must be rooted in Article 8 private or family life protections.

The court concluded that these defects meant the FtT's reasons were not "adequate" for appellate review and that UT Judge Jackson was entitled to set the decision aside under s.12 TCEA.

On the second issue the court analysed the statutory powers in s.12 TCEA, the Practice Directions and Practice Statements, and the authorities on remittal versus remaking. The court observed that the normal practice (Practice Direction 3.1; Practice Statements 7.2–7.3) is for the UT to retain and re-make the decision unless (a) the FtT hearing was unfair or deprived a party of the ability to present their case (the paragraph 7.2(a) exception), or (b) the nature or extent of additional judicial fact-finding required makes remittal appropriate (paragraph 7.2(b)).

Applying these materials, the court found:

• The Appellant had not relied on procedural unfairness before the UT and had not argued that his right to a fair hearing was compromised; AEB was therefore distinguishable because it turned on procedural unfairness in the FtT hearing.
• The UT's choice to remit or re-make is discretionary; established practice and earlier authorities (including MR/JD (Congo)) support retention and re-making in many cases to secure prompt decision-making and efficient use of tribunal resources.
• Given the inadequacies in the Second FtT Decision (including lack of clear findings and reasoning), and the fact the UT directed a fresh hearing and allowed the Appellant to adduce further material, the UT's exercise of discretion to re-make the decision was within the permissible range of options.

On the third issue the court examined the UT's re-made decision (UT Judge Mandalia). The Appellant had advanced multiple criticisms but abandoned some at oral argument. The court addressed the principal points:

• Public interest and seriousness: the UT rightly began with the seriousness of the offending and considered sentencing remarks and context in line with HA (Iraq). The UT explained that the proportionality scales remained heavily weighted in favour of deportation despite mitigation from passage of time and rehabilitation.
• Rehabilitation: the UT accepted the evidence that the Appellant had not reoffended and that risk was "low", but (on the evidence) could not conclude that the Appellant was "unlikely" to reoffend; the UT treated rehabilitation as mitigating the public interest in protection but did not accept it as sufficient to meet the statutory very compelling threshold.
• Delay: the UT considered delay as relevant (it could reduce the weight of the public interest by allowing rehabilitation and deeper ties to develop) but concluded that here delay reduced but did not eliminate the public interest; the court found no legal error in that evaluation.
• Mental health / harshness of return: the UT evaluated expert evidence (Attorney Lackenby) but was not bound by it; having considered the evidence, the UT concluded that there were not "very significant obstacles" to reintegration in the State of origin and that the mental health evidence did not establish the necessary degree of intrusion to displace the public interest.
• Application of s.117C(6): the UT explicitly considered the statutory requirement that circumstances be "over and above" Exceptions 1 and 2 and was not satisfied that the Appellant's circumstances cleared that additional hurdle.

Overall, the court found no material error of law in the UT's re-made decision and held that it represented a proper application of the statutory scheme and relevant authorities.

Holding and Implications

HOLDING: The appeal is dismissed. The court concluded that (1) the Second FtT Decision was legally flawed for inadequate reasoning in applying the very compelling circumstances test; (2) the UT was entitled to set that decision aside and to re-make the decision rather than remit it to the FtT; and (3) the UT's re-made decision applying s.117C(6) was lawful and disclosed no material error.

Implications:

• Direct effect on the parties: Company A's Decision refusing revocation of the deportation order was upheld; the Appellant's appeal is dismissed and the deportation order remains in force subject to any further lawful steps the Appellant may take within the permitted avenues of challenge.
• Procedural implications: the judgment reinforces that the UT may, as the normal course, retain and re-make decisions under s.12 TCEA when it sets aside an FtT decision for legal error, unless specific exceptions (notably procedural unfairness at the FtT hearing or particular fact-finding reasons) are established to justify remittal.
• Substantive guidance: the decision emphasises the legal framework from HA (Iraq) on s.117C(6): rehabilitation is a relevant factor that ordinarily reduces the public interest in deportation as a public-safety measure, but rehabilitation will seldom be of sufficient weight to amount to the "very compelling circumstances" required to outweigh the strong public interest in deportation; where a tribunal treats rehabilitation as decisive, it must explain carefully why the statutory "over and above" hurdle is cleared and how competing weights are allocated.
• Precedential effect: the court did not purport to set a novel test but reinforced the requirement for adequate reasoning in proportionality assessments under s.117C(6) and confirmed the UT's discretion to re-make decisions where appropriate. No new legal principle beyond the careful application of existing authority was established.

Prepared from the anonymized text of the provided opinion. All personal names, institutional names and locations have been replaced with consistent placeholders as required.