Overview
The Court of Appeal decision in Nguyen v Secretary of State for the Home Department [2025] EWCA Civ 1452 has clarified that Part 5A of the Nationality, Immigration and Asylum Act 2002 applies to decisions on the revocation of deportation orders, even when the applicant is outside the UK. The Court confirmed that the statutory public interest framework governing Article 8 in deportation cases applies across the entire deportation regime, including revocation applications made from abroad.
The appeal was dismissed, and the Upper Tribunal’s decision in favour of the Home Secretary was upheld.
Background
The appellant is a Vietnamese national who was convicted of producing cannabis and sentenced to two years’ imprisonment. He was deported in 2007, while his wife and son remained in the UK.
On 7 February 2019, he applied for his deportation order to be revoked. This application was refused on 31 December 2020. He also applied for entry clearance to join his family on 15 December 2019, which was refused on 6 July 2022 on the basis that a deportation order remained in force.
Both decisions were appealed. The First-tier Tribunal (FTT) allowed both appeals. A central issue was the correct legal framework for assessing applications to revoke deportation orders.
In refusing revocation, the Home Office had first considered the deportation provisions in the Immigration Rules (A398) and Article 8, before concluding that the appellant had not demonstrated a “very strong” Article 8 claim sufficient to outweigh the significant public interest in maintaining the deportation order.
The FTT concluded that the Home Office decision-maker had failed to apply the correct provisions of the Immigration Rules, specifically paragraph 391, which provides that deportation orders for offenders sentenced to under four years should normally be maintained unless ten years have passed, or continuation would be contrary to the Refugee Convention, the Human Rights Convention, or there are other compelling circumstances.
The Tribunal considered section 117C of the 2002 Act, which sets out the public interest framework for foreign criminals under Article 8. It accepted that the “unduly harsh” threshold was not met, but concluded that section 117C did not apply to revocation applications because deportation had already taken place.
The Tribunal instead relied on the Immigration Rules and case law suggesting that revocation decisions involve no presumption either way, and must be assessed on a case-by-case basis. It found that the appellant had family life with his wife and that there was little risk of reoffending. On that basis, it allowed the appeal.
The Upper Tribunal’s Decision
The Home Secretary appealed both FTT decisions to the Upper Tribunal (UT). The UT found that both decisions involved errors of law and proceeded to remake them, allowing the Home Secretary’s appeals.
The UT relied on earlier authority confirming that Part 5A of the 2002 Act applies to the whole deportation regime, including revocation applications made from outside the UK. It held that the FTT had asked the wrong legal question by focusing on the Immigration Rules instead of applying section 117C.
The Tribunal rejected the argument that the legal error was immaterial, stating that the test applied by the FTT was materially different from the statutory framework required by section 117C. The appellant was found not to meet the statutory exceptions, and his appeal was dismissed.
The Court of Appeal’s Decision
The appellant appealed to the Court of Appeal. The central question was whether Part 5A of the 2002 Act applied to revocation appeals where the applicant was outside the UK.
The Court accepted the Home Secretary’s submission that:
- The word “deportation” in Part 5A includes every stage of the statutory deportation regime.
- This includes:
- Decisions to deport a person inside the UK.
- Refusals of revocation applications made from within the UK.
- Refusals of revocation applications made from outside the UK.
Although section 117C is framed in forward-looking language, the Court held that this does not displace the broader meaning of deportation within Part 5A.
The Court found that the FTT had erred in law by failing to apply section 117C(6), and by allowing the appeal on human rights grounds when, on its own findings, “none of this is very compelling”. It also held that the Tribunal had wrongly decided the appeal under the Immigration Rules in a way that departed from the statutory framework.
The Court of Appeal therefore dismissed the appeal.
Postscript: A Warning to Practitioners
The judgment concludes with an important warning directed at legal practitioners. The Court expressed concern that an established authority on the interpretation of section 117C appears to have been overlooked in recent litigation, including submissions made on behalf of the Home Secretary.
Despite the authority being nearly ten years old and having been reviewed by the Supreme Court without adverse comment, incorrect submissions continue to be made suggesting that section 117C does not apply in cases involving medium offenders who do not meet the statutory exceptions.
The Court emphasised the importance of proper awareness and application of this binding authority.
Why This Case Matters
This decision confirms that revocation of deportation is not a legal “sidestep” around the statutory public interest framework. The same stringent Article 8 tests apply whether a person is facing deportation for the first time or seeking revocation years after removal.
It reinforces that the statutory public interest in deportation remains dominant and cannot be displaced by reliance on the Immigration Rules alone.
Practical Implications for Practitioners
For immigration and deportation practitioners, this case serves as a critical reminder that:
- Part 5A applies to all deportation-related appeals, including revocation applications made from abroad.
- Section 117C cannot be disapplied simply because deportation has already occurred.
- The Immigration Rules must be interpreted consistently with the statutory framework.
- Tribunals cannot replace the statutory test with a discretionary or free-standing “case-specific” analysis.
- Failure to apply the correct statutory framework will amount to an error of law.
Conclusion
The decision in Nguyen v Secretary of State for the Home Department [2025] EWCA Civ 1452 provides clear and authoritative confirmation that the public interest framework under Part 5A of the Nationality, Immigration and Asylum Act 2002 governs appeals concerning the revocation of deportation orders, even when applications are made from outside the UK.
The judgment significantly strengthens the Home Secretary’s position in overseas revocation cases and reinforces the central role of section 117C in Article 8 deportation appeals.
By: Emmanuel Ogbu