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Secretary of State for the Home Department v Ojaleye
Factual and Procedural Background
The appeal concerned the Appellant's challenge to the Upper Tribunal's decision to uphold the First-tier Tribunal's allowance of the Respondent's appeal against deportation to Country A on Article 8 grounds under section 117C(6) of the Nationality, Immigration and Asylum Act 2002. [Para 26][Para 79]
The Respondent, a Country A national, entered the United Kingdom in 2002, later became an overstayer, and subsequently obtained further leave to remain on private and family life grounds until May 2023. [Para 28][Para 30][Para 32][Para 34][Para 35]
He had four children with two former partners; the two younger children had autism, and the evidence before the tribunal described significant involvement by the Respondent in all four children's lives. [Para 33][Para 56][Para 63][Para 65][Para 166][Para 169]
In 2023, the Respondent pleaded guilty to conspiracy to defraud arising from false Bounce Back Loan Scheme applications and was sentenced to seven years' imprisonment. The Secretary of State then refused his further application for leave to remain, concluding that deportation was in the public interest and that there were no very compelling circumstances. [Para 36][Para 38][Para 50][Para 51][Para 54][Para 78]
The First-tier Tribunal allowed the Respondent's appeal in November 2024. The Upper Tribunal dismissed the Secretary of State's appeal in March 2025, and the Court of Appeal dismissed the Secretary of State's further appeal. [Para 79][Para 193][Para 206][Para 289]
Legal Issues Presented
- Whether the First-tier Tribunal misapplied section 117C(6) by failing to apply the correct, very high threshold for “very compelling circumstances” over and above Exceptions 1 and 2. [Para 94][Para 103][Para 226][Para 229][Para 246]
- Whether the First-tier Tribunal erred in its treatment of the seriousness of the Respondent's offending, including the sentencing remarks and the observation that it was not required to determine culpability separately. [Para 229][Para 230][Para 260][Para 261]
- Whether the First-tier Tribunal's reasoning on the children's welfare and the impact of deportation was inadequate or perverse. [Para 232][Para 236][Para 281][Para 287]
Arguments of the Parties
Appellant's Arguments
- The First-tier Tribunal wrongly approached the case as though a general balancing exercise was required before deciding whether section 117C(6) was met, and understated the strength of the public interest in deportation. [Para 226][Para 228][Para 274][Para 276]
- The First-tier Tribunal failed properly to account for the seriousness of the offence and wrongly suggested that it did not need to determine culpability; the Appellant also said the low-risk OASys assessment was of little or no relevance. [Para 229][Para 230][Para 231][Para 262]
- The evidence about the younger children and their mother was said to be insufficient to establish very compelling circumstances, particularly because the mother had continued to care for the children while the Respondent was imprisoned. [Para 232][Para 235]
Respondent's Arguments
- The First-tier Tribunal was a specialist fact-finding tribunal and appellate restraint was required; the tribunal's decision should not be overturned merely because it could have been expressed better. [Para 237][Para 238][Para 264][Para 271]
- The tribunal had plainly understood the seriousness of the offending, and its references to culpability and low risk of reoffending did not show any legal error. [Para 239][Para 240][Para 260][Para 263]
- The evidence about the younger children's severe autism, the mother's difficulties, and the Respondent's role in the family justified the conclusion that very compelling circumstances existed. [Para 240][Para 241][Para 281][Para 284]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| NA (Pakistan) v SSHD [2017] 1 WLR 707 | Explains the structure of section 117C: medium offenders consider Exceptions 1 and 2 first; serious offenders must show very compelling circumstances over and above those exceptions. | The court used it to restate the statutory framework and confirm that, for a serious offender, the public interest requires deportation unless the higher section 117C(6) test is met. [Para 107][Para 108][Para 109][Para 243][Para 246] |
| HA (Iraq) v SSHD [2022] UKSC 22 | Defines “unduly harsh” as a highly elevated threshold and explains that the seriousness of the offence is relevant to the very compelling circumstances assessment. | The court relied on it to assess the correct threshold, to treat seriousness of offending as relevant, and to explain why low-risk reoffending evidence had limited weight. [Para 110][Para 117][Para 248][Para 255][Para 262] |
| SSHD v Lewis [2026] EWCA Civ 879 | Reiterates that factors from Strasbourg case law may be relevant, but Parliament has fixed how some matters are weighed under section 117C. | The court cited it as a recent authority confirming the statutory structure and the limited role of broad proportionality balancing outside section 117C. [Para 119][Para 124] |
| Hesham Ali v Secretary of State for the Home Department [2016] 1 WLR 4799 | Identifies that the seriousness of the offence and the public interest are central in deportation appeals. | The court referred to it when discussing the proper weight to be given to the public interest in deportation. [Para 120][Para 122][Para 274] |
| Hesham Ali v SSHD [2016] UKSC 60 | Used for the proposition that the public interest in deportation of serious offenders is very strong. | The court used it, via later discussion, to say the First-tier Tribunal should have used the statutory language more carefully, though this did not ultimately amount to an error of law. [Para 228][Para 274] |
| AH (Sudan) v Secretary of State for the Home Department [2007] UK HL 49 [2008] 1 AC 678 | The Upper Tribunal should not rush to find an error of law merely because it would have reached a different factual conclusion. | The court cited it as part of the standard of appellate restraint when reviewing First-tier Tribunal reasoning. [Para 264][Para 265] |
| MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49 [2011] 2 All ER 65 | A court should be slow to infer that a relevant point was ignored simply because it is not expressly mentioned. | The court used it to resist the submission that the First-tier Tribunal must have overlooked seriousness merely because one phrase was unclear. [Para 266][Para 222][Para 223] |
| R (Jones) v First Tier Tribunal and Criminal Injuries Compensation Authority [2013] UKSC 19 [2013] 2 All ER 625 | Reasons need not spell out every step of the tribunal's reasoning. | The court relied on it to say imperfect expression did not itself show legal error. [Para 267] |
| UT (Sri Lanka) v The Secretary of State for the Home Department [2019] EWCA Civ 1095 | The issue and the basis for decision may be set out directly or by inference. | The court used it to read the First-tier Tribunal's reasoning as a whole rather than fixating on isolated wording. [Para 269] |
| A4 (Nigeria) v Secretary of State for the Home Department [2020] EWCA Civ 1296 [2020] 4 WLR 145 | First-tier Tribunal judges are presumed to know and apply the relevant law. | The court invoked it to reject the suggestion that the First-tier Tribunal had ignored the statutory seriousness factors. [Para 270][Para 223] |
| MM (Lebanon) v Secretary of State for the Home Department [2017] UKSC 10 [2017] 1 WLR 1260 | Different tribunals may lawfully reach different proportionality conclusions; an unusually generous view is not necessarily an error of law. | The court used it to explain why a generous assessment of the evidence did not make the decision perverse or unlawful. [Para 271][Para 285] |
| KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53 [2018] 1 WLR 5273 | Defines the “unduly harsh” test and confirms its elevated threshold. | The court and the concurring judges used it to explain the meaning of Exception 2 and why the children's circumstances were assessed against a high threshold. [Para 301][Para 303][Para 302] |
| NA (Pakistan) v Secretary of State for the Home Department [2017] EWCA Civ 662 [2017] 1 WLR 207 | The very compelling circumstances relied on by a serious offender must be exceptionally compelling and go well beyond the bare case under Exceptions 1 and 2. | The court used it in the concurring judgment to stress how demanding section 117C(6) is, while still accepting that the First-tier Tribunal had been entitled, on these facts, to find the test met. [Para 304][Para 312] |
| R v Maughan [2022] 1 WLR 2820 | The rationale for guilty-plea credit concerns administration of justice, not the seriousness of the offence itself. | The court used it to explain why plea credit did not reduce the seriousness of the Respondent's offending for deportation purposes. [Para 251][Para 253][Para 254] |
Court's Reasoning and Analysis
The court began by restating the statutory scheme: because the Respondent had been sentenced to seven years' imprisonment, he fell within the “serious offender” category, so deportation was required unless there were very compelling circumstances over and above Exceptions 1 and 2. [Para 243][Para 246][Para 247]
The court held that the seriousness of the offence was plainly relevant, but the sentence imposed was the surest guide. Here, the sentencing remarks showed that the seven-year sentence already reflected the offence's seriousness, the scale of the fraud, and the reduction for plea and mitigation; accordingly, the First-tier Tribunal did not need to conduct any separate or additional assessment of culpability. [Para 248][Para 254][Para 256][Para 260][Para 261]
The court also rejected the contention that the First-tier Tribunal had improperly relied on the OASys low-risk assessment. Even if relevant in some sense, such evidence was of limited value in the section 117C exercise and was not shown to have driven the result. [Para 262][Para 263][Para 291]
On the wording of the First-tier Tribunal's reasons, the court accepted that some phrases were imperfect: the tribunal should not have referred to a balancing exercise before deciding whether section 117C(6) was satisfied, and it would have been better to use the statutory language more precisely. However, the court read the decision as a whole and concluded that the judge knew the correct issue, focused on it, and understood that the Respondent had to show circumstances beyond Exceptions 1 and 2. [Para 274][Para 278][Para 279]
The key factual foundation was the evidence about the two younger children: both had marked learning difficulties and autism, attended a specialist school, struggled with routine and basic tasks, and depended on consistent support. The First-tier Tribunal accepted the evidence that the Respondent played an important role in their care and in holding the family together, and it accepted that the mother's ability to cope was materially strained. [Para 281][Para 284]
Although the court accepted that a more searching analysis of the precise care provided before imprisonment would have been desirable, it concluded that the First-tier Tribunal's ultimate assessment remained within the range of reasonable responses. The court therefore held that the decision was not perverse, even if it was generous. [Para 285][Para 287]
The concurring judges agreed. Judge Lewis emphasized that tribunals are not helped by speculative risk-of-reoffending assessments in this context, while Judge Males concluded that the First-tier Tribunal was just entitled to find the very compelling circumstances threshold satisfied on these facts, notwithstanding some scepticism about the extent of the Respondent's pre-prison role. [Para 291][Para 292][Para 294][Para 298]
Holding and Implications
Appeal dismissed. The First-tier Tribunal's decision allowing the Respondent to resist deportation stood, and the Secretary of State's challenge failed. [Para 289][Para 291][Para 294]
The practical effect was confined to the parties: the deportation order was not upheld on this appeal. The judgment largely applied settled section 117C principles, while reiterating that appellate courts should not overturn a specialist tribunal merely because its proportionality assessment was generous or imperfectly expressed. [Para 264][Para 271][Para 285][Para 312]
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