Background
Collins Cuthbert Lewis is a national of Dominica who arrived in the United Kingdom at age 14 in 2007 on a visitor’s visa. His leave expired in October 2015, and he remained unlawfully thereafter. Between 2016 and 2019, he accumulated multiple criminal convictions, culminating in a September 2019 conviction for possessing class A drugs (crack cocaine and heroin) with intent to supply, resulting in a sentence of 3 years and 9 months’ imprisonment. In July 2024, while his deportation case was pending, he was convicted again of being concerned in the supply of class A drugs, receiving a sentence of 5 years and 4 months. Mr Lewis has a child born in 2018 but has had no contact with him since 2019, and he suffers from post-traumatic stress disorder following a stabbing incident in 2015.
The Secretary of State issued a deportation order as Mr Lewis qualifies as a “foreign criminal” (a non-British national sentenced to at least 12 months’ imprisonment). Mr Lewis claimed that deportation would breach his right to respect for private and family life under Article 8 of the European Convention on Human Rights. The Secretary of State rejected his human rights claim in 2021. The First-tier Tribunal allowed his appeal, finding very compelling circumstances that outweighed the public interest in deportation. The Upper Tribunal dismissed the Secretary of State’s appeal, treating the tribunal’s conclusion as a factual finding. The Secretary of State appealed to the Court of Appeal.
The Court’s Holding
The Court of Appeal examined whether the First-tier Tribunal properly applied section 117C(6) of the Nationality, Immigration and Asylum Act 2002, which governs deportation of serious offenders (those sentenced to four years or more). Under that provision, deportation is required unless there are “very compelling circumstances, over and above those described in Exceptions 1 and 2.” The Court confirmed that the statutory framework sets out: (1) a presumption that deportation of foreign criminals is in the public interest; (2) that the more serious the offence, the greater the public interest in deportation; and (3) for serious offenders, only “very compelling circumstances” can outweigh this interest.
The Court clarified the proper approach to section 117C(6), noting that while tribunals are not legally required to expressly consider Exceptions 1 and 2 first, doing so promotes transparency and reduces the risk of error. The Court emphasised that tribunals cannot bypass the exceptions framework and jump straight to assessing very compelling circumstances, as that would “undermine the Parliamentary intent” (per Kapikanya). The very compelling circumstances must be either factors within Exceptions 1 or 2 that are of such force as to satisfy the test, or factors unconnected with those exceptions that are nonetheless very compelling. The Court clarified that factors drawn from European Court of Human Rights jurisprudence remain relevant but that Parliament has determined how certain factors (such as unduly harsh impact on children, or obstacles to reintegration) are to be assessed within the statutory scheme.
Key Takeaways
- The “very compelling circumstances” test under section 117C(6) for serious offenders involves a high threshold and requires circumstances beyond those described in the exceptions framework.
- While structured reasoning (examining exceptions first) is not mandatory, tribunals must ensure from their decision that they have identified relevant facts and properly applied the statutory framework.
- A tribunal cannot simply declare that circumstances are “very compelling” without explaining why they meet this demanding standard, particularly when the offending is serious.
- The statutory framework for deportation of foreign criminals, as set out in section 117C, represents Parliament’s determination of how to balance the public interest in removing serious offenders against Article 8 protections.
Why It Matters
This decision clarifies the legal test courts and tribunals must apply when deciding whether to prevent the deportation of foreign criminals who have been sentenced to four or more years’ imprisonment. The judgment confirms that Parliament’s statutory framework, rather than free-standing Article 8 analysis, governs these cases. It emphasises that the public interest in deporting foreign criminals, particularly serious offenders, is substantial and can only be outweighed by genuinely very compelling circumstances. For immigration practitioners and tribunals, the decision reaffirms that the exceptions framework provides important scaffolding for analysis, even though explicit consideration of exceptions is not mandated, and that vague or conclusory findings of “very compelling circumstances” risk being found inadequately reasoned.
The judgment is significant because deportation cases involving foreign criminals regularly raise Article 8 claims centred on family ties and private life. By clarifying the proper approach to section 117C(6), the Court provides guidance that should promote consistency and prevent erosion of the statutory presumption in favour of deporting serious offenders. The decision also signals that factors such as a desire to maintain contact with a child whom the applicant has not seen for years, or general concerns about mental healthcare in the country of return, will not automatically constitute very compelling circumstances capable of outweighing the public interest in removal.