Sofian Majera v The Secretary of State for the Home Department

This appeal concerns a deportation order signed on 13 November 2012 (the Order) in respect of the appellant, who is a “foreign criminal” within the meaning of the UK Borders Act 2007 (UKBA) and the Nationality, Immigration and Asylum Act 2002 (NIAA).

The appellant pleaded guilty to a series of robberies and was sentenced to imprisonment for public protection (IPP) with a minimum term of seven years. A deportation order was made. An appeal against it failed. Having served nine years’ imprisonment the appellant applied for revocation of the order. The focus of his application was a claim that he was rehabilitated. The respondent (SSHD) declined to revoke the order. The appellant appealed to the First-tier Tribunal (FtT) on the grounds that deportation would violate his rights under Article 8 of the European Convention on Human Rights (the Convention). The FtT allowed the appeal, but the Upper Tribunal (UT) set aside that decision for error of law, went on to re-make the decision afresh, and found in favour of the SSHD. On this appeal the appellant contends that the UT erred in law at each of these three stages. He asks us to restore the FtT decision in his favour. The SSHD resists the appeal on all grounds.

The appeal challenges the UT’s approach to its appellate function in this case and raises two main issues of statutory interpretation. The first relates to the so-called “very compelling circumstances test” in section 117C(6) of the NIAA. This governs the approach of a court or tribunal where a foreign criminal sentenced to at least four years’ imprisonment challenges deportation on Article 8 grounds. The question is: what is the right approach to the compelling circumstances test where the foreign criminal claims to have been rehabilitated? The second main issue relates to section 12 of the Tribunals, Courts and Enforcement Act 2007 (TCEA). This governs the orders which the UT can make where it has set aside an FtT decision of this kind for error of law. The question is: must the UT remit the appeal to the FtT, so that the appellant can benefit from a two-tier appeal regime?

The appellant’s case was argued by Ms Amanda Weston KC and Ubah Dirie for the appellant and Tom Tabori for the SSHD, none of whom appeared in the tribunals below. I am grateful for their helpful submissions. Having reflected on the arguments, I would dismiss the appeal. For the reasons that follow I have concluded that (1) the FtT’s approach to the very compelling circumstances test was legally flawed; (2) the UT was right to set aside the FtT decision for that reason, and entitled to make the decision afresh rather than remitting it to the FtT or preserving any of the FtT’s findings; (3) the UT’s re-made decision involved a proper application of the very compelling circumstances test and discloses no error of law.

Sections 32 and 33 of the UKBA contain the following relevant provisions under the heading “deportation of criminals”. A person who is not a British or Irish citizen who is convicted in the United Kingdom of an offence and sentenced to imprisonment of at least 12 months is defined as a “foreign criminal”. The SSHD must make a deportation order in respect of a foreign criminal unless the case falls within one of the exceptions in section 33 (s 32(5)). She may not revoke such an order unless she thinks that one of those exceptions applies. The relevant exception in this case is Exception 1: “where removal of the foreign criminal in pursuance of the deportation order would breach … a person’s Convention rights” (s 33(2)(a)).

The relevant Convention right is the right which everyone enjoys to “respect for his private and family life” under Article 8(1). Article 8(2) prohibits “interference by a public authority with the exercise of this right” except to the extent that the interference “is in accordance with the law and is necessary in a democratic society” for one or more legitimate purposes or aims. The list of legitimate purposes and aims includes “public safety … the prevention of disorder or crime …[and] the protection of the rights and freedoms of others.”

So, where a court or tribunal is required to determine whether a decision to deport a foreign criminal would breach a person’s Article 8 rights, a question that arises is whether any interference with those rights that deportation would involve is justified under Article 8(2). Part 5A of the NIAA, introduced in 2014, addresses that question. It is headed “Article 8 of the ECHR: public interest considerations”. Section 117A(2)(b) of the NIAA provides that “in cases concerning the deportation of foreign criminals” (a term with substantially the same meaning as it has in the UKBA) a court or tribunal “must … have regard … to the considerations listed in section 117C”. Section 117C provides as follows:

Article 8: additional considerations in cases involving foreign criminals

(1)

The deportation of foreign criminals is in the public interest.

(2)

The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(3)

In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.

(4)

Exception 1 applies where—

(a)

C has been lawfully resident in the United Kingdom for most of C's life,

(b)

C is socially and culturally integrated in the United Kingdom, and

(c)

there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.

(5)

Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.

(6)

In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

(7)

The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.

The effect of these provisions has been considered by this court on many occasions and by the Supreme Court on several. The leading case is HA (Iraq) v SSHD [2022] UKSC 22, [2022] 1 WLR 3784. Lord Hamblen gave a judgment with which the other Justices agreed. He began by summarising the effect of s 117C(6):

3.

Foreign criminals who have been sentenced to terms of imprisonment of at least four years (described in the authorities as “serious offenders”) can avoid deportation if they establish that there are “very compelling circumstances, over and above those described in Exceptions 1 and 2” … (“the very compelling circumstances test”). ….

…

5.

The very compelling circumstances test requires a full proportionality assessment to be carried out, weighing the interference with the rights of the potential deportee and his family to private and family life under article 8 … against the public interest in his deportation. ….

In paragraphs [46]-[50] Lord Hamblen elaborated on the very compelling circumstances test, citing passages from earlier decisions. For present purposes the important points are these.

Pausing there, I should perhaps spell out some points which I think are implicit in the language of the statute and the passages I have cited but are in any event borne out by other decisions in this area. First, s 117C(6) plainly covers an especially compelling case of the kind described in Exception 1 or Exception 2. An illustrative example can be found in the judgment of Underhill LJ in Yalcin v SSHD [2024] EWCA Civ 74, [2024] 1 WLR 1626 at [57]: a case where the impact of the offender’s deportation on a child (Exception 2) would involve “undue harshness … of an elevated degree (‘unduly unduly harsh’?)”. But, secondly, the scope of s 117C(6) is not confined to cases of this nature; there may be aspects of an offender’s private or family life that do not fall within the Exceptions but make the case especially strong and which – by themselves or in combination with circumstances that do fall within the Exceptions - afford a sufficiently compelling reason to conclude that deportation would be disproportionate: see NA (Pakistan) [29] and Yalcin [15].

The significance of the words “over and above” is, therefore, that the serious offender must not only establish circumstances relating to private or family life that provide a basis for concluding that deportation would involve a disproportionate interference with Article 8 rights which is “very strong indeed”; the circumstances must also be compelling to a degree that goes “well beyond” anything that does or would fall within either of the Exceptions.

Returning to the judgment of Lord Hamblen in HA (Iraq), he made clear (at [51]-[51]) that the very compelling circumstances test requires the court to consider “all the relevant circumstances of the case” and to weigh them against “the very strong public interest in deportation”. The relevant circumstances will include those identified by the European Court of Human Rights (ECtHR) to the Article 8 proportionality balance in such cases. Lord Hamblen referred in this context to a 10-point list of factors set out by the ECtHR in Unuane v United Kingdom (2020) 72 EHRR 24, [72]-[73]. The first of those factors is “the nature and seriousness of the offence committed”. The third is “the time elapsed since the offence was committed and the applicant’s conduct during that period”. Lord Hamblen dealt in more detail with these two factors.

Under the heading “The seriousness of the offence” Lord Hamblen observed (at [60]-[61]) that s 117C(2) requires the court or tribunal to approach the proportionality assessment on the basis that the more serious the offence, the greater the public interest in deportation. He held (at [63]-[71]) that where the sentence was the only available information that would be the surest guide to seriousness; where the sentencing remarks were available it could be appropriate to depart from the sentence as the touchstone of seriousness but only where the remarks explained whether and how the sentence had been influenced by factors other than the seriousness of the offending, such as a reduction for guilty plea; and that it can be appropriate to assess the seriousness of the offences by reference to the nature and circumstances of the offending and its impact on society as a whole, though care must be taken to avoid double counting.

Under the heading “Rehabilitation”, Lord Hamblen confirmed that this is a relevant factor in the proportionality assessment. He then addressed a dispute as to the weight it should be given, and some differences in the way this had been put in the authorities, concluding (at [58]) as follows:

In a case where the only evidence of rehabilitation is the fact that no further offences have been committed then, in general, that is likely to be of little or no material weight in the proportionality balance. If, on the other hand, there is evidence of positive rehabilitation which reduces the risk of further offending then that may have some weight as it bears on one element of the public interest in deportation, namely the protection of the public from further offending.

Subject to that clarification, and to one further caveat, Lord Hamblen expressed his agreement with this summary of the authorities, provided by Underhill LJ at [141] of his judgment in HA (Iraq):

… the fact that a potential deportee has shown positive evidence of rehabilitation, and thus of a reduced risk of re-offending, cannot be excluded from the overall proportionality exercise. The authorities say so, and it must be right in principle in view of the holistic nature of that exercise. Where a tribunal is able to make an assessment that the foreign criminal is unlikely to re-offend, that is a factor which can carry some weight in the balance when considering very compelling circumstances. The weight which it will bear will vary from case to case, but it will rarely be of great weight bearing in mind that, as Moore-Bick LJ says in Danso, the public interest in the deportation of criminals is not based only on the need to protect the public from further offending by the foreign criminal in question but also on wider policy considerations of deterrence and public concern.

The caveat, identified at [59], was that “the wider public policy consideration of public concern may be open to question on the grounds that it is not relevant to the legitimate aim of the prevention of crime and disorder”, but that was not an issue that fell for consideration in HA (Iraq).

For completeness, I add that the Immigration Rules contain provisions similar to those of the NIAA, but it has not been considered necessary on this appeal to enter into any separate analysis.

The appellant was born on 10 January 1982. He first came to this country from Rwanda with his family in April 1997, aged 15. In April 2001, he and his family were granted exceptional leave to remain. Over the following two years the appellant committed some 7 offences for which non-custodial sentences were imposed. The offences including making off without payment, vehicle taking, offences of driving while disqualified and without insurance, and receiving stolen goods.

In July 2003, the appellant was convicted of a further offence of driving while disqualified and without insurance and sentenced to 4 months’ custody in a Young Offender’s Institution (YOI). In October 2003, he was convicted of further offences of the same kind for which he was sentenced to a further 4 months in a YOI. On 11 January 2005, by then aged 23, he was convicted of four counts of aggravated vehicle taking and related offences for which he received a custodial sentence of 5 months. On 21 April 2005, the appellant’s mother applied for indefinite leave to remain (ILR). On 26 April 2005, the appellant was convicted of two further counts of driving while disqualified and uninsured and sentenced to 4 months’ imprisonment.

On 9 November 2005, the application for ILR made by the appellant’s mother was granted and the appellant was granted leave in line. But in the meantime, on 24 October 2005, he had taken part with several others in what turned out to be the first of a series of 10 street robberies, the last of which was carried out on 11 November 2005. He and three of the others were prosecuted. On 12 September 2006, the appellant pleaded guilty. On 13 November 2006, in the Crown Court at Wood Green, he was sentenced by HHJ Pawlak.

The judge had the benefit of a pre-sentence report (PSR). This described the offending as ten offences committed on eight separate days, involving “various weapons ranging from a baseball bat to a firearm and a high degree of violence including kidnapping by a group of offenders.” The injuries to the victims “ranged from bruises to burns and broken limbs as well as the psychological impact”. The appellant had accepted “playing an integral part in the offences” and that he “knew what was happening without making any attempts to stop their or his involvement”. Little remorse was indicated.

In his sentencing remarks the judge described the robberies. They “usually took place late at night”. The defendants “hunted as a pack”, inflicting violence that was “gratuitous and sadistic” on victims who were men on their own, in cars or returning from an underground or railway station. The judge noted that “some of your victims were kept prisoner for as long as an hour and intimidated verbally and physically”. The psychological consequences for them were “substantial and continuing”. The judge found the appellant to be a “dangerous” offender, for whom a life sentence was appropriate. He therefore set a minimum term of 7 years less time spent in custody on remand. He did so on the basis that the notional determinate sentence was one of 18 years, which he reduced by 20% to reflect the guilty plea, yielding 14 years.

On 2 April 2007, the Court of Appeal allowed an appeal against sentence. It concluded that the case did not merit a life sentence and substituted a sentence of IPP, leaving undisturbed the finding of dangerousness, the minimum term, and the recommendation for deportation. The effect of IPP is that the offender will remain in custody for the minimum term or until the Parole Board considers it safe to release him, whichever is the longer. The offender is released on licence, at risk of recall to custody in the event of a breach or a further offence.

Before his sentence appeal, the appellant was notified of his liability to deportation. After that appeal, he lodged a claim that deportation would contravene his human rights. On 16 November 2012, he was notified that his human rights claim had been refused and he was served with the Order, which provided for his deportation to Rwanda. He appealed to the FtT on the basis that the Order was a disproportionate interference with his Article 8 rights because (1) he was not a risk; (2) he had close family and social ties from which he should not be parted; and (3) he would face harsh conditions and bad memories on return. He relied on a report from a forensic psychologist, Ms Joanne Lackenby.

The appeal was dismissed by a decision dated 3 July 2013 (the First FtT Decision). The FtT considered the appellant’s immigration history, the PSR, the sentencing remarks, Parole Board material, the report of Ms Lackenby, and other evidence. It concluded that the offending was serious and marked a clear escalation in the appellant’s offending. It rejected the appellant’s case that he was “low risk in respect of committing further crime or serious harm to the public”. The FtT found that the evidence of close family and other ties was “negligible” and that this aspect of his claim was not made out. The claim of harsh conditions on return was not established either. His mental health condition did not require treatment that was unavailable in Rwanda. He was left with the simple fact of returning to his home country, which did not carry significant weight. He would be able to re-establish himself there.

The appellant was granted permission to appeal to the UT but on 19 February 2014 that appeal was dismissed. The UT found that the FtT had made no error of law, had taken account of all relevant factors, given “full and detailed” consideration to the appellant’s grounds, and reached legitimate conclusions. Permission to appeal to this court was refused.

On 30 March 2015, after an oral hearing before the Parole Board, the appellant was released from the custodial portion of his sentence. He was detained under immigration powers. On 2 April 2015, he applied to the SSHD for the revocation of the Order. In September 2015, having been released from immigration detention, he was told that his application had been refused, but on 28 October 2015 the SSHD withdrew that decision and agreed to complete a full reconsideration of the appellant’s case. That reconsideration was not completed until 19 October 2021, when the SSHD notified the appellant of her refusal to revoke the Order (the Decision).

The reasons for that near-six-year delay have not been made clear to us on this appeal. We do know that in that period the appellant brought judicial review proceedings to challenge the conditions of his release from immigration detention, and that those proceedings went as far as the Supreme Court, which handed down judgment on 20 October 2021 (R (Majera) v SSHD [2021] UKSC 46, [2022] AC 461). But it has not been suggested that the judicial review claim represented a bar to removal or to the reconsideration of the application to revoke the Order.

The appellant’s appeal against the Decision was heard on 2 September 2022 by FtT Judge Young-Harry (the FtTJ). Before the judge was a 1,125-page bundle including witness statements from the appellant, his mother, his brother, and an expert report from the same forensic psychologist, Ms Lackenby, who had given evidence at the first FtT hearing. All of these witnesses adopted their statements and were cross-examined. On 3 November 2022, the FtTJ promulgated her decision allowing the appeal on the grounds that the very compelling circumstances test was satisfied (the Second FtT Decision).

The steps in the FtTJ’s reasoning can be summarised as follows, using paragraph numbers from the decision.

The concluding passages of the FtTJ’s decision were as follows:

23.

I find the positive steps the appellant took while serving his sentence to complete rehabilitative courses, the parole board’s positive view of his behaviour, which led to their decision to move him then eventually release him, and Ms Lackenby’s view, that there has been a positive shift in the appellant's mindset, all lead me to conclude, that the balance just tips in favour of the appellant. His efforts and shift in attitude, should afford him a second chance.

24.

I have regard for Ms Lackenby’s view that the appellant’s behaviour and approach to change, can be described as exceptional and unusual. With all this in mind, I consider the appellant, who is now a 41-year-old man has approached his rehabilitation in an exceptional, impressive, and noteworthy manner. Having considered the circumstances in the appellant’s case, I find the passage of time has reduced the public interest in deportation, I find his circumstances can be described as very compelling, such that the deportation order should be revoked. When conducting the proportionality assessment, I find the very compelling circumstances of the appellant’s case, outweigh the public interest in deportation.

The SSHD’s appeal against the Second FtT Decision was heard by Upper Tribunal Judge (UTJ) Jackson on 22 September 2023 and allowed on 5 October 2023. The key features of the UTJ’s reasoning were as follows.

The fresh hearing took place before Upper Tribunal Judge Mandalia on 15 January 2024. On 2 May 2024, UTJ Mandalia promulgated his decision dismissing the appeal. He set out the essential factual background, the sentencing remarks, and the First FtT Decision. He then described the legal framework, citing ss 32 and 33 of the UKBA, Part 5 of the NIAA, and extensive passages from HA (Iraq) and Yalcin. The UTJ then outlined the evidence before coming at [38] to his decision. His reasoning is dense and detailed, but its key features can be summarised as follows.

At [69] the UTJ set out his ultimate conclusion in the light of these matters: the Decision was not disproportionate to the legitimate aim because

… the appellant’s protected rights, whether considered collectively with rights of others that he had formed associations with, or individually are not … such as to outweigh the public interest in the appellant’s removal having regard to the policy of the [SSHD] as expressed in the … [NIAA]. Even giving credit to the appellant for his conduct since his release, and the factors that weigh in his favour, I am not satisfied that the public interest is weakened to the point where it is capable of being outweighed by the appellant’s Article 8 claim….

The grounds of appeal raised three main issues. First, it was argued that UTJ Jackson was wrong to set aside the Second FtT Decision as it disclosed no error of law or none that was material. Alternatively, it was said that it was wrong of the UTJ to direct a fresh hearing of the appeal in the UT; the case should have been remitted to the FtT or, at least, some of the findings of the FtT should have been preserved for the purposes of re-making the decision in the UT. In the further alternative, it was said that UTJ Mandalia’s decision was wrong in law.

A fourth issue arose from the SSHD’s Respondent’s Notice. This argued that the UTJ’s decisions could and should be upheld on the additional or alternative ground that rehabilitation is incapable in law of satisfying the very compelling circumstances test. The submission was that rehabilitation is relevant only to a risk of reoffending, yet the public interest in deportation rests also on the general deterrent effect and wider public concern. Accordingly, the FtTJ’s finding that rehabilitation “just tips” the balance in favour of the appellant was not an available conclusion. I propose to deal with this as I address the three grounds of appeal.

The SSHD raised a further issue, applying for a ruling that certain correspondence between the parties relating to a possible settlement was inadmissible. That issue fell away in the course of the hearing. I have not taken account of the correspondence in question, and would make no order on the SSHD’s application.

Ms Weston KC and Ms Dirie advanced two criticisms of UTJ Jackson’s decision. The first was that the UTJ was wrong in law to conclude that the FtTJ’s decision on the very compelling circumstances test was insufficiently reasoned. Reliance was placed on the Practice Direction – Reasons for decisions dated 4 June 2024 issued by the Senior President of Tribunals (SPT). Particular emphasis was placed on paragraph 6, which states that the FtT is not usually required “to identify all of the evidence relied upon, to elaborate at length its conclusions on any issue of law, or to express every step of its reasoning”. It was argued that the FtTJ’s reasoning, read as a whole, properly reflected the law on rehabilitation as stated in HA (Iraq), a very well-known case. As paragraph 9 of the Practice Direction states, the FtT will “generally be taken to be aware of the relevant authorities ... and to be applying those cases, without the need to refer to them specifically”. It was submitted that instead of fairly summarising the FtTJ’s conclusions the UTJ had quoted them selectively and then adopted the impermissible approach of interfering because, without having heard and seen the witnesses give evidence, she disagreed with the result (as to which see AA (Nigeria) v SSHD [2020] EWCA Civ 1296, [2020] 4 WLR 145).

The appellant’s second criticism of the UTJ’s decision was that she erred in her approach to the FtT’s decisions on the facts. The FtTJ reached factual and evaluative conclusions based on the factual and expert evidence before her. An appellate court or tribunal should not lightly interfere with such conclusions (see such well-known decisions as Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, [2014] FSR 29 and Volpi v Volpi [2022] EWCA Civ 464, [2022] 4 WLR 48). Caution is particularly appropriate when considering decisions of an expert tribunal: AH (Sudan) v SSHD [2008] 1 AC 678, [30] (Baroness Hale). In this case, the UTJ had failed to exercise the necessary self-restraint. She had failed to consider whether, in the light of such error of law as she identified, there was any basis for interfering with the FtTJ’s findings. In the event she had impermissibly interfered with and set aside those findings.

I would reject both these criticisms. The second appears to me to be misplaced. The UT did not set aside the FtT decision on the grounds that it contained unsustainable findings of fact or untenable evaluations of the expert evidence. UTJ Jackson’s decision was that the FtTJ’s reasoning was flawed for insufficiency of reasoning. On that issue I am satisfied that the UTJ was right.

The SPT’s Practice Direction contains a valuable distillation of general principles derived from many authorities. It appropriately emphasises the desirability of reasons being concise and not over-elaborate. It recognises the need to take account of the FtT’s expert knowledge of this area of decision-making. But among the principles identified is a requirement (in paragraph 5) that reasons be “adequate”. The Practice Direction explains that this means, among other things that the reasons must “explain to the parties why they have won and lost ... why the matter was decided as it was and what conclusions were reached on the main issues in dispute”. It further states that the reasons “must always enable an appellate body to understand why the decision was reached”. These are the criteria properly applied by UTJ Jackson in this case.

The decision under scrutiny was a proportionality assessment. As the UTJ rightly observed, a balance sheet approach is not mandatory. Indeed, as the Supreme Court has recently reminded us, albeit in a different context, “The proper application of the Convention requires a more structured approach than the concept of ‘balancing’ might suggest”: Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust [2025] UKSC 15, [2025] 2 WLR 815, [128]. In my judgment, whilst it would be wrong to be unduly prescriptive, any adequately reasoned decision of this kind must meet some minimum structural criteria, including the following. The decision-maker must have in mind the relevant legal principles; they must identify the factors that are relevant on each side of the equation, and the relevant facts; they must decide what weight should be given to the competing considerations and why; and they must conduct a reasoned proportionality assessment that properly reflects the applicable legal principles. The reasons given must sufficiently indicate that these criteria are met, and enable the losing party and an appeal body to understand how the result was arrived at. If that is done then due deference should be given by an appellate tribunal.

The very compelling circumstances test adds some superstructure. The statutory provisions and the passages I have cited at [5]-[16] above identify factors that have to be fed into this particular proportionality assessment and provide guidance as to how they must be addressed. These matters will also need to be borne in mind when assessing the adequacy of reasons. To recapitulate some key features, the legitimate public interest aims which may justify interference with Article 8 rights include not only public safety but also deterrence. The weight of the public interest in the deportation of foreign criminals increases in proportion to the seriousness of the offending. The circumstances relied on to override that public interest must be within the scope of Article 8. Those circumstances must provide a “very compelling” basis for concluding that deportation would be a disproportionate interference with Article 8 rights (circumstances cannot be “very compelling” in the abstract). The circumstances must also be substantially more compelling than a bare claim within Exception 1 or Exception 2 would be or, putting it another way, “very strong indeed”. Rehabilitation will usually be of little or no material weight and rarely of great weight.

The FtTJ’s reasoning addressed some of the matters I have listed. The decision mentioned the public interest in public safety and deterrence, and it made reference to the seriousness of the offending. But it did not address in any detail the nature of the criminality. This did not amount to one “offence” but a series of ten gang robberies carried out in the circumstances I have identified. The offending was serious enough to call for a sentence of IPP with a minimum term of 7 years. That term was calculated on the basis that the appropriate determinate sentence after a trial would otherwise have been one of 18 years’ imprisonment. The appellant had not been deemed safe until 9 years had been served. Yet the decision contains no explicit assessment of the weight to be given to the public interest in these circumstances, before discounting for the passage of time, rehabilitation, and low risk of re-offending. The FtTJ’s conclusion that those matters reduced the weight of the public interest “to some extent” was thus unanchored and accordingly opaque. Other than the finding that Exceptions 1 and 2 did not apply, there was no visible analysis of the appellant’s private and family life in the United Kingdom. And so far as return to Rwanda was concerned the FtTJ, having rejected the application of Exception 1, referred to aspects of Ms Lackenby’s evidence but without making any clear findings or explaining how, if at all, these aspects of the case were material in her view. The focus was on the separate issue of rehabilitation, in respect of which the FtT’s reasoning was in my judgment clearly inadequate.

Paragraphs [23]-[24] of the FtTJ’s decision make plain that she treated the appellant’s rehabilitation and good conduct as “very compelling circumstances” sufficient to “just tip the balance” and outweigh the public interest in deportation. But explanation was lacking. Four points may be made.

First, this approach treats rehabilitation as a factor exacerbating the interference with the appellant’s Article 8 rights that deportation would involve. That is not how the issue is addressed in HA (Iraq) or the authorities there cited. Those cases treat rehabilitation as a factor on the other side of the equation: where present, it can mitigate the need for public protection and reduce the weight attributable to that component of the public interest in deportation. The FtT’s approach in this case was to that extent novel. The reasons behind it cannot be discerned from the decision and are by no means self-evident. When this question was raised during the argument before us, Ms Weston KC submitted that rehabilitation can be a factor in an Article 8 assessment where the individual goes beyond just putting his criminal past behind him and makes a valuable contribution to society. For my part, I think that is arguable. It might be said that the concept of rehabilitation can, in this context, go beyond the elimination of criminal behaviour and anti-social behaviour. It may reach into the territory of social re-integration of a new, healthy, and positive kind, that brings mutual benefits to society and the individual. I am therefore not inclined to accept the SSHD’s stark submissions as to the role that rehabilitation can play in the very compelling circumstances test. But what can be said with confidence is that the Second FtT Decision did not explain the judge’s thinking on this significant point of principle.

Secondly, the Second FtT Decision did not explain why, on the facts of this case, the FtTJ found rehabilitation to be a reason for revoking the Order. As I have noted, “very compelling circumstances” cannot exist in the abstract. They must be circumstances that relate to a person’s private or family life rights; and they must go to the severity of the interference that deportation would involve. These are matters that were not addressed in the Second FtT Decision.

Thirdly, the FtTJ stated that rehabilitation afforded a “very compelling” reason for revoking the Order but without explaining why. As the UTJ pointed out, there was no acknowledgment of the general rule identified in HA (Iraq) that rehabilitation will ordinarily be given little if any weight. Nor is there anything to identify or explain the weight that was in fact given to it here. The UTJ inferred that it had been accorded real and substantial weight. I think that is a reasonable inference, but such a matter ought not to be left to inference. And it is still not apparent quite where on the scale rehabilitation was held to stand. Informing the reader that this factor just tipped the balance does not help when it is not made clear what weight was given to the public interest in deportation.

Fourthly, the critical passages lack any reference to the statutory requirement that very compelling circumstances will only prevail if they go “above and beyond” those identified in Exceptions 1 and 2. That is an important shortcoming in the analysis. It cannot be made good by reading the decision as a whole. The decision nowhere states that the circumstances overcame this further hurdle, nor does it explain why. Nor can I infer the FtTJ’s reasoning. Indeed, I am not able to identify the connection between the statutory criteria and the FtTJ’s stated view that the appellant’s efforts “should afford him a second chance”.

Section 12(2)(a) of the TCEA gives the UT a discretion, where it finds that a decision of the FtT involved an error of law. It “may (but need not) set aside the decision”. In this case, the errors of law were clearly material and the UT’s conclusion that the decision below should be set aside was unavoidable. For these reasons, which are in large part elaborations of those given by UTJ Jackson, I would dismiss the appeal on the first issue.

This issue concerns the UT’s exercise of the powers conferred by s 12(2)(b) and (4) of the TCEA. Section 12(2)(b) provides that if the UT sets aside the FtT decision it “must either (i) remit the case to the First-tier Tribunal with directions for its reconsideration or (ii) re-make the decision”. Section 12(4) allows the UT, when acting under s 12(2)(b)(ii), to “(a) make any decision with the First-tier Tribunal could make if the First-tier Tribunal were re-making the decision, and (b) may make such findings of fact as it considers appropriate.”

One of the points made by the appellant is that the UTJ should have “preserved” some of the FtT’s findings rather than directing an entirely fresh hearing of the appeal. I am wholly unpersuaded by that argument. As a general rule, when a decision is re-made it is recognised as desirable to retain findings of fact where these have not been undermined or infected by errors of law. But “there is no hard-edged answer to what that means in practice, in any particular case”: AB (Preserved FtT findings; Wisniewksi principles) Iraq [2020] UKUT 00268 (IAC) [41]. The first problem here is that, as I have explained, the Second FtT Decision was significantly lacking in findings of fact. Further, the points on which clear conclusions were expressed did not turn on issues such as credibility, and indeed were not matters significantly in issue. Whether a person has re-offended is an objective question, and has never been in dispute in this case. On the broader factual questions going to rehabilitation, there is little of a factual nature that has ever been in dispute, as will become evident when I come to the decision of UTJ Mandalia. The central questions in relation to rehabilitation are – and have always been - where it belongs in the structural approach to the very compelling circumstances test, and what weight should be given to it when applying that test to the largely undisputed facts of this case.

I turn to the appellant’s main argument on this second issue, which is about venue. The ground of appeal is that it was wrong to direct that the appeal be re-heard in the UT, rather than remitted to the FtT. The argument was, in summary, that this decision wrongly deprived the appellant of a right to a fresh two-tier decision-making process. The appellant’s written argument relied on the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and Upper Tribunal dated 11 June 2018 (the Practice Statements), the decision of this court in AEB v SSHD [2022] EWCA Civ 1512, [2023] 4 WLR 12 (AEB), and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) (Begum). In my judgment, this argument is not supported by the sources I have mentioned and is mistaken.

The relevant materials include Paragraph 3.1 of the applicable Practice Directions which states that the parties to an appeal to the UT “should assume that ... (b) except as specified in Practice Statement 7.2 ... the Upper Tribunal will proceed to re-make the decision under section 12(2)(b)(ii), if satisfied that the original decision should be set aside.” Practice Statements 7.2 and 7.3 provide as follows:-

7.2

The Upper Tribunal is likely on each such occasion to proceed to re-make the decision, instead of remitting the case to the First-tier Tribunal, unless the Upper Tribunal is satisfied that:-

(a)

the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or

(b)

the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.

7.3

Remaking rather than remitting will nevertheless constitute the normal approach to determining appeals where an error of law is found, even if some further fact finding is necessary.

Some obvious points can be made before moving to the cases relied on. On the face of it, these provisions are against the appellant. The ordinary expectation and the general rule of practice, identified in paragraph 3.1 of the Practice Directions and in Practice Statements 7.2 and 7.3, is that the UT will retain the decision rather than remit it. Secondly, the exceptions mentioned at 7.2(a) and (b) are separate and distinct in nature. The paragraph 7.2(a) exception is concerned with a case in which the appellant has been deprived of a fair hearing in the FtT (or other opportunity for his case to be put to and considered by that tribunal). This is an exception concerned with the core right of fairness. It reflects what has been described as “... a fairly strong general rule [that] where a first instance decision is set aside on the basis of an error of law involving the deprivation of the appellant’s right to a fair hearing, the appropriate course will be to remit to a newly constituted [FtT] for a fresh hearing”: MM (Unfairness) Sudan v SSHD [2014] UKUT 105 (IAC) [26]. The paragraph 7.2(b) exception is different. It calls for a judicial assessment of what course is “appropriate” having regard to the nature or extent of the fact-finding required and the overriding objective.

In AEB this court considered the paragraph 7.2(a) exception. The FtT had refused the appellant’s application for an adjournment and proceeded to decide and dismiss his appeal. The UT held that the FtT had erred in law by refusing the adjournment, set aside the FtT’s decision on the merits for procedural unfairness, and proceeded to re-make the decision itself. The appellant complained that the UT had failed to address the paragraph 7.2(a) exception, had given no reasons for its decision to retain the case, and had deprived him of the “normal” two-tier approach to appeals. The SSHD accepted the first two points but argued that the loss of an FtT decision was not “material”. In a judgment delivered by Stuart-Smith LJ (with whom Underhill and Nicola Davies LJJ agreed) the court rejected the SSHD’s submission, allowed the appeal, and ordered that the case be remitted to the FtT for a hearing de novo.

In this case, the appellant did not rely in the UT on AEB or any similar contention. He did not ask for remittal. He had the opportunity to do so. The purposes of paragraph 3.1 of the Practice Direction include setting the parties’ expectations, and giving them an opportunity to submit that there should be a departure from the norm. For these reasons, I think it hard for the appellant to justify taking this point for the first time in this court. I am satisfied in any event that it cannot be sustained. The appellant has never invoked the paragraph 7.2(a) exception nor has he any grounds for doing so. But it was on that basis alone that the appeal in AEB succeeded. This is clear from a closer analysis.

The SSHD’s argument in AEB relied on the decision of this court in MR (Bangladesh) v SSHD, one of the four cases dealt with in a composite appeal under the title JD (Congo) v SSHD [2012] EWCA Civ 327, [2012]1 WLR 3273. In MR (Bangladesh) the court considered a submission that the UT, upon finding errors of law, should have remitted the case to the FtT to avoid the “potentially dire” consequences of an “unappealable” UT decision. The court acknowledged that an appeal from the UT would confront the second appeals test which was more stringent than the test for first appeals, but concluded as follows (at [38]):

... the fact that a more stringent test will be applied by the court when deciding whether to grant permission for an appeal against the re-made decision is not a justification for remitting the case rather that re-making the decision. Prompt decision-making in the tribunals system is in the best interests of all parties.

In AEB this reasoning was distinguished by Stuart-Smith LJ who observed (at [41]) that “it is essential to bear in mind that there was no suggestion that the errors of law that had been identified in the FtT’s original decision had rendered the hearing before the FtT unfair or had prevented the appellant from presenting his case”. Stuart-Smith LJ went on to observe (at [45]) that “unfairness is not just important because it is referred to in paragraph 7.2(a): it is of fundamental importance for the reasons set out by the UT in MM (Unfairness) Sudan”. Accordingly, as a general rule, in cases of that kind (though not necessarily all such cases) the parties should “have a two-tier process that is fair throughout”: [47]. I have emphasised the critical words to highlight that the decision in AEB turns entirely on the unfairness in the original FtT proceedings in that case. It is not authority for any general proposition that the UT is obliged upon finding legal error to remit so that the appellant can have a two-tier process. Indeed, such a rule would be contrary to the entire thrust of Practice Direction 3.1 and Practice Statements 7.2 and 7.3. It would be at odds with MR (Bangladesh) and finds no support in AEB.

The decision in Begum is positively unhelpful to the appellant. In that case the President (Dove J) and Mr Ockelton reaffirmed that where the UT finds an error of law the general principle is that the case will be retained for the remaking of the decision. The UT applied that general rule although it accepted that there had been an element of procedural unfairness in the proceedings below which could be characterised as an error of law. It held that unfairness was “a factor which is to weighed in the balance in the context of the exercise of discretion”.

An additional contention was advanced in oral argument, to the effect that the UT’s decision to retain the appeal was vitiated by a failure to give proper consideration to paragraph 7.2(b) of the Practice Statements. Ms Dirie submitted that the UT should at least have considered under that heading whether a de novo decision in the UT would unfairly deprive the appellant of the benefit of the two-tier system. This argument was first raised at the hearing before us. It could have been advanced to the UT. It seems to me that it should have been raised in the Grounds of Appeal or at least the Skeleton Argument before this court when permission to appeal was sought. In these circumstances I do not think it is open to the appellant to complain of a lack of reasons: see English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409 [25]. And in my opinion there is no basis for this court to second guess the substance of the UTJ’s decision.

As I have noted, the normal and proper course is for decisions to be re-made in the UT, even though this limits the scope of appeal rights to some extent. Practice Statement 7.2(b) identifies a potential exception to the norm. It calls for a judicial evaluation of the nature and extent of the fact-finding required, coupled with the exercise of a discretionary judgment. Here, UTJ Jackson legitimately concluded that it was appropriate to direct a de novo hearing. Her decision that it was appropriate and fair to allocate the venue in the usual way cannot be characterised as wrong in principle or one that fell outside the range of options reasonably available to her.

It is also worth noting that the fresh hearing took place before a different UTJ and that the directions given allowed the appellant to adduce further evidence, which he did. Before UTJ Mandalia the evidence included not only that which had been called in the FtT, but also an updating report from Ms Lackenby and an expert report from a Dr de Noronha on whether there is empirical support for the SSHD’s view that deportation has a deterrent effect on third parties.

The Grounds of Appeal relevantly alleged that UTJ Mandalia “erred in law and was wrong to conclude ... that the appellant had failed to show ‘very compelling circumstances’ and/or that his appeal should not be allowed under article 8”.

The written argument identified five specific errors of law, which I can summarise as follows: (i) failing to conduct any adequate analysis of the public interest in deportation; the criticisms advanced included, among others, reliance on deterrence when this was not a relevant factor according to the evidence; (ii) erroneously focusing on historical facts and findings, namely those of the sentencing judge and the First FtT Decision, rather than the up-to-date position at the date of the hearing and the SSHD’s delay; (iii) failing to consider whether the risk factors which led to the offending continued to exist; (iv) adopting an irrational approach to the facts, by “minimising” the evidence as to the risk of re-traumatisation on return to Rwanda and substituting his own view for that of the reporting clinician; (v) reaching a conclusion as to the proportionality exercise that was based on flawed evaluation, material errors of fact, irrationality and misdirections of law. In support of these contentions the Skeleton Argument advanced some 11 specific criticisms of UTJ Mandalia’s reasoning. At least four of these related to the UTJ’s approach to deterrence. For the SSHD, Mr Tabori rejected all the appellant’s complaints, submitting that the UTJ’s judgment was well-reasoned and “an exemplary instance of the proper application of the statutory scheme to an Article 8 appeal against a deportation order or refusal to revoke one.” Mr Tabori’s Skeleton Argument addressed and rejected each individual criticism in turn.

At the hearing, Ms Weston KC abandoned reliance on the pleaded complaints about the UTJ’s approach to deterrence. She focused her submissions on what she described as “two very significant errors” in the UTJ’s judgment: his approach to the SSHD’s delay, and to the evidence as to the appellant’s mental health. She maintained the remaining written arguments but did not develop any of them in her oral argument.

I would dismiss the appeal on this ground. In my judgment, UTJ Mandalia’s decision was a proper one which has not been shown to involve any material error of law. The general principles of relevance have been identified already: see [5]-[16], [38] and [41] above. In the light of those principles, and this court’s decision in RU (Bangladesh) v SSHD [2011] EWCA Civ 651, I consider Ms Weston was right not to pursue the challenge the UTJ’s approach to deterrence. And given the narrowed focus of this ground of appeal I can explain my conclusions comparatively shortly. I shall address the issues raised by Ms Weston’s main submissions and the remaining written arguments under five main headings.

I am not persuaded that the UTJ erred in relation to this aspect of the very compelling circumstances test. He was plainly right to begin with the seriousness of the offending. Parliament has expressly identified that as a key factor in calibrating the public interest. For that purpose, and contrary to the written argument for the appellant, it remained relevant not only to identify the sentence but also to consider why it was imposed. That included a review of the sentencing remarks which explained the offending and how the sentence was arrived at. All of this was consistent with the approach approved in HA (Iraq). The impact of the passage of time, rehabilitation, delay and the appellant’s circumstances at the time of the hearing fell for consideration at later stages of the analysis.

It was of course necessary to take account of any relevant changes of circumstance over the years since the sentencing hearing. That included, in particular, the evidence of rehabilitation that came from the Parole Board, the Probation Service, and Ms Lackenby, and what the evidence said about residual risk. That was done, and I can detect no legal error in the UTJ’s approach to that evidence, which was largely accepted by him. The position on the evidence can be shortly summarised: the appellant had not re-offended since release and his risk of doing so in future was low, but on Ms Lackenby’s own evidence it could not be excluded. The UTJ took all of this into account as correspondingly reducing the need for deportation as a public safety measure and hence that aspect of the public interest. But – as is now accepted – he was not just entitled but bound to take account of the public interest in general deterrence.

The UTJ correctly identified the submission made on behalf of the appellant, which was twofold. First, that the SSHD’s delay undermined the weight to be given to the public interest in immigration control because the appellant had, during that period “developed deeper personal and social ties in the UK”. Reliance was placed on EB (Kosovo) v SSHD [2008] UKHL 41, [2009] 1 AC 1159. Secondly, it was said that “the sheer passage of time” made the offending “historic” in nature, such that its significance to the proportionality assessment was “inevitably dimmed”. In her written argument, Ms Weston endorsed each of these points and submitted that the UTJ failed to give them proper effect. She also relied on the decision of this court in MN-T (Colombia) [2016] EWCA Civ 893, [40]-[41] (Sales LJ). She pointed to the finding I have quoted, that the delay was “to the appellant’s advantage”, and suggested this was an unfair and insufficient assessment of the impact of delay. In her oral arguments Ms Weston went further, submitting that this was a case of the kind referred to in EB (Kosovo) at [16], where the delay is shown to be “symptomatic of a dysfunctional system which yields unpredictable, inconsistent and unfair outcomes”. I have not found these arguments persuasive.

The cases cited do not support the proposition that the mere fact of delay of itself “dims” the significance of serious offending. They do indicate that, in principle, delay may bear on the application of the very compelling circumstances test in at least the following ways. Delay may (i) allow an opportunity for rehabilitation which, if taken, may reduce the public interest in deportation for the sake of public safety; (ii) reduce the public interest by weakening the general deterrent impact of a deportation order; or (iii) be evidence of systemic arbitrariness and thus “reduce the weight to be accorded to the requirements of firm and fair immigration control”; or (iv) lead to the offender developing closer personal and social ties, and deeper roots in the community. Assessing the significance of delay in any individual case is however a fact-specific exercise and an appeal court will be slow to intervene in the absence of an error of principle that has a material effect on the outcome.

In this case, before the UTJ, reliance was placed on the first and fourth of the points I have numbered above. The UTJ expressly acknowledged and gave effect to each of those points. His observation that the delay counted in favour of the appellant was correct (what he plainly meant was that there was no prejudice) and it was fair. The UTJ was entitled to conclude that the delay reduced but did not eliminate the public interest in deportation and, on the evidence, had little if any material impact on the development of any private and family life.

The second of my numbered propositions is drawn by Ms Weston from MN-T (Colombia) [42]. This is another point raised for the first time in the written arguments to this court. It could be viewed as a pure point of law, and I would not exclude it from consideration (see Notting Hill Finance Ltd v Sheikh [2019] EWCA Civ 1337, [2019] 4 WLR 146 [28]). But I cannot accept that it is material to the outcome or that the UTJ’s conclusion on these issues was wrong. My third numbered point is derived from HA (Iraq) [16]. This was not raised until the hearing before us. That, in my view, is far too late to raise a point of this kind, which depends on findings of fact and should in fairness have been raised at first instance, at the latest before UTJ Mandalia: see Notting Hill Finance at [25], [27]. In any event, whilst there is long and unexplained delay the evidence is incapable of sustaining this line of argument.

It was argued that UTJ Mandalia’s decision was irrational because he “minimised” aspects of the evidence and substituted a speculative view of his own for that of the expert witness, Ms Lackenby. It was submitted that the UTJ was not entitled to reject her evidence that the appellant would be “re-traumatised”. These complaints come down to mere disagreement with the UTJ’s conclusions. The question of whether the appellant would face “very significant obstacles” to integration on return to Rwanda was for the UTJ to answer. The Deevaseelan principle had its role to play; it was not open to the UTJ to revisit the findings of fact made by the First FtT. He was of course bound to consider matters as they stood at the time of the hearing before him. For that purpose he had to evaluate the evidence. But Ms Lackenby’s opinions certainly did not bind him. He explicitly had regard to those opinions. His conclusions were based on his assessment of her evidence and that of the appellant, taken in combination. He was entitled to make the findings that he did.

The written argument was critical of the final sentence of the UTJ’s reasoning, quoted at [33] above. This was said to conflate the question of what weight attached to the public interest and whether the appellant had demonstrated “very compelling circumstances over and above the exceptions” which outweighed that public interest. In my view this is at best a semantic point which depends on divorcing this sentence from its proper context. Read fairly, as a whole and in its context, the UTJ’s concluding paragraph adequately reflects the statutory test. The reference to “weakening” the public interest was apt, given the role that rehabilitation ordinarily plays in the proportionality assessment. The UTJ’s reasoning appropriately reflected the need, which I have emphasised, to focus on what the evidence shows about the importance of the specific Article 8 rights relied on and the real-world severity of any interference with those rights that deportation would involve.

If UTJ Mandalia’s reasoning on this issue is open to any cavil, it would be this. Some of the language (such as his use of the word “credit”) could suggest that the UTJ treated the appellant’s improved character as not only weakening the public interest in deportation as a public safety measure but also adding weight to his Article 8 rights, but without clearly explaining why. That however is a point that would count against the appellant.

This is an important decision of this court on the proper meaning of Article 8 and its application in the context of a test under the Immigration Rules of whether there were “very compelling or exceptional circumstances” that overrode the public interest in immigration control. The decision was handed down on 26 November 2025, some weeks after the hearing in this case, at a time when this judgment was already substantially complete. I have reviewed what I had written. As I can see no inconsistency, I have made no adjustments. Nor do I see any need to re-open the argument in this case. There is nothing in IA (Gaza) that could assist this appellant. The judgment is concerned with a different context. But it does underline the need for proportionality assessments in this field to accord appropriate weight to immigration policy, to focus on “the terms of the rights protected by article 8”, and to involve analytical rigour.

For the reasons I have now given in some detail I would dismiss the appeal on all grounds.

I agree.

I also agree.