Secretary of State for the Home Department v Lewis

Factual and Procedural Background

The Respondent is a national of The State who arrived in the United Kingdom at age 14 in 2007. He had limited leave which expired on 16 October 2015 and has remained in the United Kingdom without leave since then. He has an extensive criminal record. Relevant convictions include: on 26 September 2019 convictions for possession of class A drugs with intent to supply and related offences, with an aggregate sentence of 3 years 9 months; and on 1 July 2024 convictions for being concerned in the supply of class A drugs and possession of a class B drug, with an aggregate sentence of 5 years 4 months. The Appellant served notice of intention to deport after the 2019 convictions and refused the Respondent's human rights (Article 8) claim by decision dated 8 July 2021. The Respondent appealed that refusal to the First-tier Tribunal, which allowed his appeal on the basis that there were "very compelling circumstances" outweighing the public interest in deportation. The Appellant appealed to the Upper Tribunal, which dismissed the appeal. The Appellant then appealed to the Court of Appeal. The Court of Appeal panel comprised Judge Lewis, Judge Stuart-Smith and Judge Moylan.

Legal Issues Presented

1. Whether the First-tier Tribunal erred in its approach to section 117C(6) of the Nationality, Immigration and Asylum Act 2002 (the statutory test for serious foreign criminals) and, in any event, whether its conclusion was perverse or inadequately reasoned.
2. Whether the Upper Tribunal erred (i) in its understanding of the scope of and approach to section 117C(6), (ii) in its approach to determining whether any error was material, and (iii) in concluding it was unnecessary to address a ground of appeal.

Arguments of the Parties

Appellant's Arguments (as presented by Attorney Skinner and Attorney Malik)

• The First-tier Tribunal misapplied section 117C(6) by treating the sole issue as whether there were "very compelling circumstances" without properly assessing whether any such circumstances were "over and above" Exceptions 1 and 2.
• The First-tier Tribunal placed undue weight on the Respondent's stated wish to establish contact with his son despite no contact for some six years and the mother's unwillingness to allow contact; it failed to consider the prospect of establishing the relationship if the Respondent were not deported.
• The First-tier Tribunal failed to have proper regard to statutory factors in section 117B, notably the Respondent's lack of financial independence and the precarious nature of his immigration status.
• The First-tier Tribunal gave excessive weight to the Respondent's mental health evidence and to perceived lack of support in The State without adequate factual findings linking those matters to the statutory test.
• The Upper Tribunal erred by treating the question of "very compelling circumstances" as purely one of fact, by saying section 117B favoured the Respondent, and by declining to address individual grounds of appeal while dismissing the appeal.

Respondent's Arguments (as presented by Attorney Chirico and Attorney Osman)

• The Respondent submitted the First-tier Tribunal was entitled to take into account the potential for a future relationship with his child as part of the assessment of very compelling circumstances.
• On section 117B, counsel accepted the tribunal had not expressly addressed financial independence but relied on other factual material (including an earlier First-tier decision) to support weight being given to the Respondent's private life.

Table of Precedents Cited

Court's Reasoning and Analysis

The judgment, delivered by Judge Lewis (with Judges Stuart-Smith and Moylan agreeing), proceeded by reference to the statutory framework in Part 5A of the Nationality, Immigration and Asylum Act 2002 (sections 117A–117C) and the established authorities. The court emphasised that:

• Section 117C(1)/(2) establishes the strong public interest in deporting foreign criminals and that for a "serious offender" (sentence ≥ 4 years) deportation is required unless there are "very compelling circumstances, over and above those described in Exceptions 1 and 2" (s117C(6)). The statutory test is distinct and must be applied explicitly.
• The First-tier Tribunal framed the sole issue as whether there were "very compelling circumstances" but failed properly to assess whether any circumstances found were "over and above" Exceptions 1 and 2. That structural error undermined its reasoning.
• On the specific findings: the tribunal found the Respondent had not seen his son since 2019 but had a genuine wish to re-establish contact; it noted a diagnosis of post-traumatic stress disorder and medication; and it relied on general evidence about lack of medical and family support in The State. The court found the First-tier Tribunal's reasoning did not (a) identify necessary factual findings with sufficient clarity, (b) analyse the likelihood or substance of re-establishing the parental relationship, (c) explain how any mental-health evidence met the standard of being a "very compelling circumstance" over and above Exceptions 1 and 2, or (d) take required account of section 117B factors (notably lack of financial independence and the precarious or unlawful immigration status) or the limited weight to be given to private life formed in precarious status.
• The court analysed the impact of the parental-relationship material: Exception 2 requires a genuine and subsisting relationship and undue harshness to the child. The Respondent lacked a genuine and subsisting relationship; a mere wish to establish future contact was not "over and above" Exception 2 and could not, on the facts, amount to very compelling circumstances capable of outweighing the public interest.
• On mental health and medical-treatment evidence, the court reiterated prior authorities requiring a rigorous assessment of relevance and weight; it found the First-tier Tribunal had not adequately performed that assessment and had not linked findings to the statutory test.
• The Upper Tribunal erred in law by treating the question of very compelling circumstances as purely factual and by failing to identify the legal errors in the First-tier Tribunal's statutory application. The Upper Tribunal was also wrong to treat section 117B as favouring the Respondent and to decline to address individual grounds when dismissing the Appellant's appeal.

Holding and Implications

ALLOWED

Holding: The Court of Appeal allowed the Appellant's appeal on both grounds. It held that the First-tier Tribunal erred in its approach to sections 117B and 117C(6) of the 2002 Act and that the Upper Tribunal erred in its consideration of the appeal. The matter is remitted for reconsideration.

Implications: The direct consequence is that the First-tier Tribunal's decision is set aside and the case is remitted for fresh determination consistent with the statutory framework (sections 117A–117C), with careful findings of fact and explicit assessment whether any circumstances are "very compelling" and "over and above" Exceptions 1 and 2. The decision directs tribunals to apply the authorities cited as described above. The opinion does not announce a new binding precedent beyond its application of the existing statutory scheme and case-law to the facts of this case.