UI-2024-002843

• Status of case: Unreported
• Hearing date: 3 Apr 2025
• Promulgation date: 11 Aug 2025
• Publication date: 26 Aug 2025
• Last updated on: 26 Aug 2025

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002843

First-tier Tribunal No: HU/52658/2022; IA/04177/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 11 August 2025

Before

UPPER TRIBUNAL JUDGE PINDER

Between

ODUOLA TOYE
(ANONYMITY ORDER NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Spurling, Counsel instructed by Hunter Stone Law.
For the Respondent: Mr Terrell, Senior Presenting Officer.

Heard at Field House on 3 April 2025


DECISION AND REASONS
1. This is the re-making of the decision in the Appellant’s appeal. This follows my earlier decision to set aside the decision of the First-tier Tribunal (‘the FtT’) dismissing the Appellant’s appeal on human rights grounds because this contained material errors of law. My earlier decision setting aside the FtT’s decision is appended to this decision as a separate annex.
2. I am sorry for the time that it has taken me to prepare this written decision.

Factual and procedural background
3. The Appellant is a citizen of Ghana. The Appellant has a lengthy and complex immigration history and a number of criminal convictions from 1987 and 1993. In summary, a Deportation Order signed on 7th February 1994, remains in force and it was under the auspices of this Order that the Appellant was deported to Ghana on 15th July 1995. Following a claimed re-entry in 1996, the Appellant was deported again on 9th October 2003.
4. Thereafter, the Appellant claims to have re-entered again in breach of this same Deportation Order (‘the 1994 Deportation Order’) in 2005, using a different identity. Following an encounter with the police on 8th June 2011, the Appellant was served with notices as an illegal entrant. He then made an application on 16th and 23rd June 2011 for revocation of the Deportation Order against him.
5. To complicate matters further, the Deportation Order issued in 1994 was issued to the Appellant in the name of Ogundare Theophulus Badmus, which was the identity used by the Appellant at the time and the identity with which the Appellant was convicted of the criminal offence in 1993. A number of names have been used by the Appellant in the course of his dealings with the Respondent from his earlier time spent in the UK in the late 1980s and 1990s. This has been admitted to in the Appellant’s applications to the Respondent.
6. The Respondent issued a decision on 11th April 2022 refusing to revoke the Deportation Order against him and refusing the Appellant’s human rights claim. It is this decision that is the subject of these appeal proceedings.
7. Further details of the factual and procedural history in this matter are fully recorded in the my error of law decision (appended to this decision) and I only address this history where necessary when I set out my reasons for my decision below.
The appeal hearing in the Upper Tribunal
8. Following the setting aside of the FtT’s decision, this appeal was listed before me for re-making on 3rd April 2025. The sole issue that remained to be determined is whether any delay in the Respondent deciding the Appellant’s application(s) for revocation of the 1994 Deportation Order is a delay that is capable of diminishing the strength of the public interest that would otherwise warrant the Appellant’s continued deportation and to such an extent that the Appellant’s appeal falls to be allowed.
9. The Appellant argues that it is and that the delay is so egregious that, on the particular facts of this case and the private and family life established in the UK by the Appellant, this has the effect of tipping the scales of the balancing in his favour. The Respondent argues that any delay was caused or at least contributed to by the Appellant’s own actions, and in particular his use of multiple names and identities. Further, that in any event, the public interest in maintaining the Appellant’s deportation and consequent exclusion from the UK, is so great that it cannot be outweighed by factors that fall to be considered in the Appellant’s favour.
Preserved findings of the FtT
10. In respect of the issues that fall to be considered when balancing the Appellant’s Article 8 rights against the various public interests underlining the Respondent’s decision, a number of findings of fact were made by the FtT, which were not challenged in the Appellant’s appeal to this Tribunal. Both parties agreed that these findings are therefore preserved for the purposes of the re-making of the Appellant’s appeal. I summarise these as follows:
(a) The Appellant and their children’s mother are no longer in a subsisting relationship and so she is not a ‘qualifying partner’s for the purposes of s.117C Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’). I will refer to the Appellant’s former partner as X since there is no need to identify her by name - [10] of the FtT’s determination;
(b) X and the Appellant’s adult children can continue to visit Nigeria - there is nothing preventing them from so doing - [13];
(c) The Appellant enjoys a family life with X and their three children - [14];
(d) The Appellant has used a number of different names and aliases and this tended against the suggestion that he had reformed - [15]-[16]. I will return to this further in my decision;
(e) There are functioning internet and telephone facilities in Nigeria. Though the Appellant plays an important role in the lives of his children, he could continue to offer counselling and guidance, as he has done so far, over the telephone. The Appellant’s younger (now adult) child will have continuing needs for his father in his life but he will not be left alone were the Appellant to be deported as he still has his mother and siblings. X and the Appellant’s adult children can in turn provide financial and emotional support to the Appellant - [20], [22] & [34];
(f) The Appellant would likely receive some financial assistance from family members in the UK and may have access to the Respondent’s returns scheme - [22];
(g) The Appellant failed to demonstrate that he does not have extended family members in Nigeria. The family members in the UK could visit him. The Appellant is resourceful and could integrate into Nigeria - [24];
(h) The Appellant has some medical problems including glaucoma and reduced hearing in his right ear. Nigeria has a functioning health system and he could access any treatment and health care required there - [24];
(i) The Appellant’s breach of an extant Deportation Order heightens the public interest in his removal - [28]-[29];
(j) The Appellant has failed to demonstrate that there would be very significant obstacles on his return to Nigeria - [35].
The appeal hearing and the parties’ evidence
11. In preparation for the appeal hearing, the Appellant filed and served in compliance with directions a skeleton argument and a consolidated bundle containing further evidence and an application under Rule 15(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (‘the Procedure Rules’). This evidence consisted of the disclosure received from the Respondent and requested by the Appellant under the terms of the Data Protection Act, i.e. a copy of the Appellant’s file held by the Respondent (also referred to as the SAR file). This was sent to the Appellant, in the name of Toye Adewale Oduola (date of birth 2 December 1958), under cover of a letter dated 27th April 2020.
12. The Respondent filed and served a skeleton argument, also appending a copy of decision dated 27th June 2011. Neither party had any objection to each other’s application to adduce these documents and in light of their relevance to the issues that I had to determine, I duly admitted these into evidence. Through the Tribunal’s directions after the error of law hearing, it was also anticipated that both parties would be permitted to file and serve updating evidence.
13. Both parties’ advocates were also able to agree that the re-making of the appeal could proceed on submissions only. I heard both parties’ oral submissions and at the end of the hearing, I reserved my decision.
14. On 6th May 2025, I issued directions for both parties to file and serve written submissions addressing the Court of Appeal’s judgment in SSHD v MN-T (Colombia) [2016] EWCA Civ 893, a case which I had been aware of but which I had overlooked raising with both advocates at the hearing. For a long time, this judgment could not be located on the National Archive or bailii as there was an issue with its neutral citation. In compliance with these directions, both parties provided me their respective written submissions on this judgment and related matters. I confirm that I have fully considered these written submissions alongside the rest of the pleadings and documents in these proceedings.
15. I do not propose to rehearse the parties’ respective submissions (oral and written), but address these as part of my analysis set out below.
The core issues
16. I am only concerned with whether the Appellant’s deportation from the United Kingdom, pursuant to the Respondent’s refusal of his human rights claim, would be unlawful under s.6 Human Rights Act 1998, with specific reference to Article 8 ECHR.
17. This basis can be narrowed further. It is common ground that the Appellant is a ‘foreign criminal’ within the meaning of s.117D(2) of the 2002 Act. In light of the lengthy sentence imposed in 1993, the Appellant can only succeed in his appeal by demonstrating that there exist “very compelling circumstances” under s.117C(6) of the same Act.
18. In turn, the assessment of whether very compelling circumstances exist involves an analysis of delay in the context of the Appellant’s application for revocation of the Deportation Order issued to him in 1994.
The relevant legal framework
19. The deportation of foreign national offenders is governed by the Immigration Act 1971 and the UK Borders Act 2007 Act (‘the 2007 Act’). Section 32 of the 2007 Act provides for the automatic deportation of foreign criminals sentenced to at least 12 months' imprisonment. Section 33 sets out the exceptions to such automatic deportations and for the purposes of the present appeal, this includes under s.33(2)(a) where the person’s deportation would breach their rights under the European Convention on Human Rights (‘the ECHR’).
20. When considering Article 8 claims, s.117A of the 2002 Act requires that I must have regard to the contents of ss.117B and 117C. The latter provision applies specifically to cases involving the deportation of foreign criminals.
21. Section 117C provides, in so far as is relevant as follows:
117C 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.
22. The burden is on an appellant to prove the facts of their case applying the civil standard of balance of probabilities. The relevant date is the date of the hearing.
Analysis and Conclusions
23. Before turning to consider in detail the various competing factors in this case, I set out and remind myself of the overarching principles applicable to the ‘very compelling circumstances’ assessment under s.117C(6) of the 2002 Act.
24. The threshold is undoubtedly very high. In NA (Pakistan) v SSHD [2016] EWCA Civ 662; [2017] Imm AR 1, Jackson LJ said at [33] that:
“33. Although there is no “exceptionality” requirement, it inexorably follows from the statutory scheme that the cases in which circumstances are sufficiently compelling to outweigh the high public interest in deportation will be rare.”
25. When considering the ‘very compelling circumstances’ test in HA (Iraq) v SSHD [2022] UKSC 22; [2022] 1 WLR 3784, Lord Hamblen referred at [48]-[49] to other authorities with similar effect:
“48. In Rhuppiah v Secretary of State for the Home Department [2016] 1 WLR 4203 at para 50 Sales LJ emphasised that the public interest “requires” deportation unless very compelling circumstances are established and stated that the test “provides a safety valve, with an appropriately high threshold of application, for those exceptional cases involving foreign criminals in which the private and family life considerations are so strong that it would be disproportionate and in violation of article 8 to remove them.”

49. As explained by Lord Reed in his judgment in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799 at para 38:
“… great weight should generally be given to the public interest in the deportation of [qualifying] offenders, but … it can be outweighed, applying a proportionality test, by very compelling circumstances: in other words, by a very strong claim indeed, as Laws LJ put it in the SS (Nigeria) case [2014] 1 WLR 998. The countervailing considerations must be very compelling in order to outweigh the general public interest in the deportation of such offenders, as assessed by Parliament and the Secretary of State.”
26. In cases where the ‘very compelling circumstances’ test applies, rehabilitation is in general likely to be of little or no material weight, but if there is evidence of positive rehabilitation, such evidence may have a bearing on whether deportation is necessary to protect the public.
27. I have had regard to the relevant considerations set out at [51] of the judgment of the Supreme Court in HA (Iraq) and to the case of OH (Algeria) v Secretary of State for the Home Department [2019] EWCA Civ 1763 at [63] where Irwin J stated that “[a]s a matter of language and logic” the very compelling circumstances test sets “a very high bar indeed”.
28. The authorities also make it clear that the considerations under Exceptions 1 and 2 in ss.117C(4) and 117C(5) of the 2002 Act can be relevant to the very compelling circumstances test. At [37] of NA (Pakistan), Jackson LJ concluded that:
“37. In relation to a serious offender, it will often be sensible first to see whether his case involves circumstances of the kind described in Exceptions 1 and 2, both because the circumstances so described set out particularly significant factors bearing upon respect for private life (Exception 1) and respect for family life (Exception 2) and because that may provide a helpful basis on which an assessment can be made whether there are “very compelling circumstances, over and above those described in Exceptions 1 and 2” as is required under section 117C(6).”
29. On the preserved findings of fact from the FtT’s decision, the Appellant has been found not to have met either of these exceptions. Neither did the Appellant seek to re-argue that he did or that I otherwise depart from those findings.
30. For the avoidance of any doubt, the same preserved findings of fact record that the Appellant has established a private life in the United Kingdom and that he enjoys a family life with his former partner and their adult children. The interference with those relationships, which would be caused by the Appellant’s deportation is plainly sufficiently serious to engage Article 8. There is no dispute as to the legitimate aim pursued and that the decision under appeal is in accordance with the law.
31. Finally, I emphasise that my approach to the ‘very compelling circumstances’ test has been cumulative in nature: I have addressed the various competing factors relied on by both parties separately simply as a matter of structure and it should not be taken as any indication that I have viewed any of these factors in isolation.
The Appellant’s dealings with the Respondent throughout his applications for leave to remain and/or revocation
32. Before turning to the assessment of the ‘very compelling circumstances’ test and the balancing exercise that I am required to undertake in order to re-make the decision in this appeal, it is necessary for me to determine what happened between 2011 when the Appellant asked for revocation and April 2022 when the Respondent issued her decision refusing to grant such revocation and refusing the Appellant’s human rights claim. Given the prominence of this issue in these proceedings, I address this here in a separate sub-section of my decision.
33. The Respondent has summarised the Appellant’s immigration history in her decision of 11th April 2022 as follows:
“You claim to have entered the UK sometime in 1986
• On 18 February 1987 (in the identity of Sunday OGUNDARE) you were convicted of ‘Attempt/Obtaining Services by Deception’ and ‘Obtaining Services by Deception’, were Fined and the sentencing court recommended your deportation. Our records indicate you were deported to Nigeria in April 1987
• In December 1992 you applied (in the identity of Ogundare Theophulus BADMUS) for Leave to Enter (LTE) and were granted 6 months LTE as a visitor
• On 16 May 1993 you were arrested on arrival in the UK (as BADMUS) and were found to be concealing illegal drugs
• On 30 July 1993 you were convicted (as BADMUS) at Isleworth Crown Court of illegal importation of a Class A controlled drug and were sentenced to 4 years’ imprisonment and the sentencing court recommended your deportation
• On 7 February 1994 a Deportation Order was signed against you (as BADMUS) and you were deported from the UK to Nigeria on 15 July 1995
• You claim to have re-entered the UK in breach of your Deportation Order on an unknown date in 1996
• On 14 April 2001 you made an application for Indefinite Leave to Remain (ILR) (in the identity of Toye Adewale ODUOLA) and this was granted on 3 October 2001
• On 24 April 2003 you were arrested by police on suspicion of multiple counts of fraud. Your fingerprints linked your various identities and you were served illegal entry papers on 29 May 2003
• Criminal proceedings were dropped in favour of deportation action but you were released in error on 20 June 2003 and thereafter left the UK voluntarily on 26 June 2003
• On 29 July 2003 you arrived in the UK seeking LTE as a returning resident (as ODUOLA). This was refused and you were detained under immigration powers
• On 31 July 2003 you submitted a human rights application on family life grounds under the ECHR which was refused on 1 September 2003
• On 26 September 2003 you signed a disclaimer indicating you wished to waive your appeal right against the refusal of your human rights claim and on 9 October 2003 you were deported to Nigeria
• You claim to have re-entered the UK in May 2005 via Ireland (using a passport in the identity of Adesoji BABATUNDE)
• You were encountered by police on 8 June 2011 and served illegal entry papers
• On 16 and 24 June 2011 your representatives (Ennon & Co Solicitors) made an application to revoke the Deportation Order signed against you.
No response appears to have been made to this application
• On 14 October and 6 December 2013, and 17 March 2014 your representatives (Peer & Co Solicitors) made Further Representations
• On 15 June 2018 you changed your name by deed poll to Toye Oduola OYEKOLA
• On 8 September 2020 and 24 May 2021 your representatives (Hunter Stone Law) made an application to revoke the Deportation Order made against you. This is considered herein
• On 14 January 2022 you submitted a Leave to Remain - LTR(E) application (as Toye Adewale ODUOLA)”
34. The Appellant did not seek to dispute the above-summarised immigration history. Indeed, the criminal trial record sheet shows that the Appellant, in the name of Ogundare Theophilus Badmus (with a date of birth of 6th May 1959) was convicted on 30th July 1993 of being knowingly concerned in fraudulent evasion of prohibition or restriction on importation of Class A controlled drugs. The Appellant was sentenced to a period of four years’ imprisonment (Trial Bundle (‘TB’) [203]-[204]). The criminal court also recommended that the Appellant, in the same name, be deported pursuant to s.3(6) and 6(1) of the Immigration Act 1971 (‘the 1971 Act’) (TB [205]). The Deportation Order was subsequently signed on 7th February 1994 in the name of Ogundare Theophilus Badmus (TB [206]). Neither does the Appellant dispute the Respondent’s summary of his claimed re-entries to the UK and his subsequent removals back to Nigeria as set out above.
35. From the parties’ respective evidence (including that before the FtT and that admitted into evidence in this Tribunal), I consider that the below chronology is an accurate reflection of what is known of the Appellant’s communications to the Respondent and the Respondent’s responses, or lack of. For ease of reading, I have emphasised with underlining the relevant dates and the Appellant’s name as referred to in correspondence or document in the chronology below:
(a) The Appellant was placed into immigration detention by the Respondent on 8th June 2011 [TB 239];

(b) In the Respondent’s file on the Appellant, there is an entry dated 8th June 2011 by the CCU which stated as follows (use of capitals, spacing and punctuation original) [TB 71]:

“TELEPHONE CALL RECEIVED ON COMMAND AND CONTROL UNIT FROmHB B97157 BASED AT FORESTGATE POLICE STATION REQUESTING A ROADSIDE IMMIGRATION CHECK.MR AKINTOYESE OYEKOLA STATED HE ENTERED THE UK 15 YEARS AGO BUT HAD NO EVIDENCE OF THIS..

HE WAS TAKEN INTO CUSTODY AND LIVESCANNED WHICH CAME BACK WITH ONE OF THE MANYALIAS NAMES MR OYEKOLA HAS. THE NAME ON PNC IS SUNDAYADEWARE OGUNDARE
13/09/1958.

BUT UNDER ANOTHER NAME OF MR Ogundare Theophulus Badmus WAS SERVED A IS151A AS HE WAS IN BREACH OF DEPORTATION ORDER.

HE IS TO BE DETAINED AND CASE REFERED TO NEWHAM & WALTHAM FOREST LIT 19 TO DEAL WITH UKBA MATTERS.”

(c) The Respondent’s file for the Appellant records an entry on 14th June 2011, with the Respondent requesting the Appellant’s (internal) file from “layby” for the purposes of an ETD (emergency travel document) application. Two further entries confirm that on 15th July 2011, the ETD application is given to “DLO” and on 19th July 2011, the Appellant is “released due to an in-country Right Of Appeal” [TB 71 & 77];

(d) The Appellant’s then solicitors (Ennon & Co) wrote on 17th June 2011 to the UKBA’s Detained Casework Unit (‘DCU’) on behalf of the Appellant, in the name of Toyese Adewale Oduola with date of birth of 15th April 1958 enclosing written representations asking that these be treated as an application for revocation of the Deportation Order “issued in respect of our client in the past”. Within these written representations, the Appellant’s immigration and criminal history is provided, which is largely consistent with that summarised by the Respondent and extracted at para 33 above in so far as the Appellant’s criminal convictions, deportations, removals from the UK and claimed re-entries thereafter are concerned. The written representations do not give any information concerning the different names or identities used by the Appellant previously but the author makes clear that they do not have a copy of the Deportation Order and they ask for the same to be provided [TB 212-215];

(e) On 23rd June 2011, an entry is created in the Respondent’s file for the Appellant to confirm that representations for revocation of a Deportation Order were received and placed for the caseworker’s consideration [TB 77];

(f) The same solicitors wrote on the Appellant’s behalf again on 24th June 2011 to the same DCU attaching representation in favour of the Appellant’s temporary release [TB 231]. This correspondence is in the name of Toye Adewale Oduola, with the same date of birth, and displaying the same Home Office reference numbers as the earlier correspondence dated 17th June 2011. This letter does not refer to the previous names used by the Appellant but does refer to the Deportation Order made and to the Appellant’s serving of a prison sentence in 1993-1995 [TB 232];

(g) On 23rd August 2013, the Respondent recorded in their file for the Appellant that the Appellant did not report on 22nd August 2013 [TB 78];

(h) A different firm of solicitors (Peer & Co) wrote to the Home Office, at Beckett House, where the Appellant had been reporting since 2011, on 14th October 2013, on behalf of the Appellant in the name of Toye Adewale Oduola, but importantly adding the following information in the subject-line: “Mr Toye Adewale Oduola (a.k.a [sic] 11 other names as per your IS.151F hereby attached)”. The author requested that a decision be taken on the Appellant’s matter in light of him having been reporting for a period of two years. The letter enclosed a copy of the IS.151F referred to, which is the Respondent’s monthly progress report in respect of the Appellant – a document issued to those who are detained when reviewing the Respondent’s power to detain [TB 239-242]. This document, dated 8th July 2011 was issued to the Appellant in the following way:

“To: Toye Adewale Oduola
Akintoyese Adewale ODUOLA, Sunday Adeware OGUNDARE, Sunday Adewale OGUNDARE, Ogundare Theophilus BADMUS, Ogundare Theophilus BADMUW, Aderemi Toyese OYEKOLA, Aferemi Akintoyese OYEKOLA, Craig THOMSON, Christopher PHILLIPS, Vincent SMITH, Olakunle FALOLA, Adesoji Babatunde”

The IS.151F also sets out the Appellant’s immigration and criminal history (including the relevant use of names), virtually if not in identical terms as that set out by the Respondent in her decision of 11th April 2022 and extracted at para 33 above. The immigration history set out in this document also confirms that the fraud allegations made against the Appellant in 2003 were later “dropped”. The letter also refers to the Appellant being encountered by the police on 8th June 2011 for not having a ticket when using the bus, with the Appellant giving false details. Further checks were then made by the police revealing the larger history already referred to. Reference is also made to the Appellant’s wife and children, by name.

This document also confirms that the Home Office is continuing to make arrangements to obtain a travel document for the Appellant’s removal from the UK but that “this is taking longer than we would like because you appear to have given false information about your identity.” The Appellant was then asked to speak to one of the members of UKBA staff at the removal centre if he wished to assist them in progressing his case and potentially reduce the time he spend in detention prior to his removal. The Appellant’s continued detention was also confirmed and one of the reasons, in addition to the Appellant’s conduct thus far, included that he had exhausted all of his appeal rights and his removal from the UK was pending;

(i) The Respondent’s file on the Appellant confirmed that an entry was made on 17th October 2013 recording Peer & Co as the Appellant’s legal representatives [TB 69] and a further entry was made on 18th October 2013 to confirm that the letter from Peer & Co dated 14th October 2013 had been received [TB 72 & 78];

(j) Peer & Co wrote to the Home Office on 6th December 2013, on behalf of the Appellant again in the name of Toye Adewale Oduola, and adding the same reference to the Appellant also being known as 11 other names, as had been done in their correspondence of 14th October 2013. The letter referred to their previous correspondence, not having had a response from the Home Office and requesting a decision to be made in the Appellant’s case and for acknowledgment of their acting as legal representatives [TB 235];

(k) The letter from Peer & Co dated 6th December 2013 is confirmed in the Respondent’s file for the Appellant on 16th December 2013 has having been received [TB 78];

(l) Peer & Co wrote on 17th March 2014 referring to their earlier correspondence (outlined above at (h)-(k) requesting for a response and setting out that no response had been received from the Home Office to any of their letters [TB 233-234];

(m) On 13th May 2014, a record is made in the Respondent’s file for the Appellant confirming receipt of a “PAP” dated 28th March 2014 [TB 72];

(n) Various other entries appear in the Respondent’s file for the Appellant dated between 25th April 2014 and 14th July 2014 repeating the receipt of the Appellant’s representatives’ letters in 2014 and the forwarding of the same to different departments or for linking to file [TB 81];

(o) The next entry thereafter of relevance is from a record minute contained in the Respondent’s file for the Appellant and created on 8th August 2017 detailing the following (use of capitals, spacing and punctuation original):

“SUB HAS 2 IDS BADMUS-SUBJECT OF A DO.REMOVED ON 24/09/95, AND ODUOLA WHO WAS GRANTED ILR ON 03/10/01 BASED ON 14 YRS CONTINUOUS RESIDENCY! SUBJECT NEEDS TO BE INTERVIEWED AS HE ENTERED IN BREACH OF A DO. PAPERS NEED TO BE SERVED. HE IS CURRENTLY RIC. HE IS CHARGED WITH 5 COUNTS OF FRAUD CONCERNING OPENING BANK ACCOUNTS USING FORGED ID.NEXT IN COURT 30”

(As referred to above at para 35(h), it appears that the fraud charges were subsequently not pursued against the Appellant.)

(p) Of further note in the Respondent’s file for the Appellant is the Respondent’s summary records concerning the Appellant’s detention covering the period 15th June 2011-17th November 2015 at [TB 130-138]. From this record, it appears that the requirement for the Appellant to report after 17th November 2015 was cancelled [TB 129-130];

(q) The Appellant’s current solicitors, Hunter Stone Law, wrote to the Respondent on 8th September 2020 making an application to revoke the Deportation Order. The following is detailed in the second paragraph of this letter [TB 243]:

“The applicant has used different aliases in the past and the deportation order was signed under one of the aliases used. The Home Office SAR file details this. The applicant has confirmed that his actual name is Toye Adewale Oduola and the SSI ID has now accepted this as his true identity.”

At para 6 of the same letter, the author confirmed that the original deportation was signed on the 7th February 1994 against the name of Badmus Ogundare Theophilus, one of the aliases used by the Appellant;

(r) A further application form is submitted to the Respondent online for the Appellant by Hunter Stone Law on 14th January 2022 referencing his history and use of different names via the covering letter to the application [TB 349];

(s) The Respondent issued a Notice of Decision, to refuse a human rights claim, to the Appellant dated 11th April 2022 (the subject decision in these proceedings). This letter sets out the Appellant’s immigration and criminal history, already extracted above at para 33. As can be seen from the extract above, the Respondent appears to acknowledge that no response appears to have been made to the Appellant’s application of 16th and 24th June 2011. Nothing further is said about that however in the remainder of the decision;

(t) The Respondent filed and served a review of her decision following service of the Appellant’s evidence and arguments in the FtT. This does not address the issue raised by the Appellant of a purported 11-year delay in considering his application for revocation (see paras 21 and 24-25 of skeleton argument lodged with the FtT on 20th September 2022) [TB 153-154]. The review is undated but from the FtT’s online portal, this was lodged with the FtT on 14th October 2022 [TB 196-199];

(u) A list of the Appellant’s aliases and Home Office reference numbers is included in the Respondent’s file on the Appellant. The names include Akintoyese Adewaie ODUOLA, Sunday Adeware OGUNDARE, Sunday Adewaie OGUNDARE, Ogundare Theophilus BADMUS, Ogundare Theophilus BADMUW, Aderemi Toyese OYEKOLA, Aferemi Akintoyese OYEKOLA, Craig THOMSON, Christopher PHILLIPS, Vincent SMITH, Olakunle FALOLA, Adesoji Babatunde. It is not clear from this record when this list was [TB 70].
36. The only other aspect of the evidence that provides further information on the Respondent’s case-working of the Appellant’s case is that adduced by the Respondent, in the form of a copy decision dated 27th June 2011. A copy of this decision was appended to Mr Terrell’s skeleton argument. Helpfully, Mr Terrell was able to provide further information about this decision in his skeleton argument. He stated as follows at paras 6-9:
“The 2011 application

6. At §3 of the RFLR (B/366), the SSHD notes that an application to revoke his deportation order made on behalf of the Appellant by Ennon & Co solicitors on 16/06/2011. As noted by the FtT (§17), the application was made in the identity of Toye Adelwale Oduola – however the application was specifically against the Deportation Order made in the alias of Ogundare Theophulus Badmus.

7. At some point and for reasons that are unclear, a separate file was created for the “Badmus” identity which was not correctly linked to the Appellant’s main file. On review of that file, a decision does appear to have been made in response to the 2011 application (decision dated 27/06/2011 annexed to RFRL). It is unclear when the decision was served on the Appellant though, as the case notes indicate (B/71), the Appellant was in detention at the time and was released because he had an in-country right of appeal. There was no other decision that carried a right of appeal served at the time so it is reasonable to presume that, if it was served, it would have been prior to 15/07/2011.

8. For reasons which are unclear, the decision was deleted from the Home Office’s database CID (though a copy was retained), on 18/04/2012. The only reason recorded for the deletion was “document not required”. Nor was the outcome of the application correctly recorded on the system. It is unclear why the decision was deleted though it may be of part of an attempt to reconcile the Appellant’s various files into a single one.

9. Given the age of the case as well as the Appellant’s use of aliases and deception, it is difficult to say with certainty exactly what happened. There are likely two (at least realistic) possibilities. The first is that a decision was made on 27/06/2011 in response to Ennon & Co representations. That decision was served on him at some point soon after and, as recorded contemporaneously at the time, he was subsequently released from detention. The second is that a decision was made in June 2011, was not served on the Appellant and was later deleted for some unknown reason. That appears to be less likely as it leaves a significant question mark over why the Appellant would have been released from detention in 2011. There must have been a reason and the only obvious one that can be gleamed from the records is that there was an appealable decision. Further, if no decision had been served and if it had been been outstanding for some time, it is likely that Ennon & Co would have sought to chase up.”
37. There is no separate record or any other evidence of the 2011 decision being served on the Appellant or on his legal representatives, whether in the Appellant’s evidence including the disclosure that was made to him by the Respondent in the form of his SAR file, or in the Respondent’s evidence. Indeed, the decision itself does not appear in the Appellant’s SAR file that was disclosed into these proceedings and a copy of this decision was only made available by the Respondent with Mr Terrell’s skeleton argument on the day before the hearing, as already referred to above.
38. As can be seen from the information helpfully provided by Mr Terrell, it is far from clear whether or not this decision was served on the Appellant on or around 27th June 2011, and why this decision was subsequently deleted, as disclosed by Mr Terrell. Mr Terrell very fairly acknowledged this and could not positively submit that the letter had been served on the Appellant at the time or subsequently.
39. Mr Terrell also submitted that the entry in the Appellant’s SAR file for 19th July 2011 supports a conclusion that the Appellant would have been served with a copy of the letter of 27th June 2011 at some point between the date of the letter and the date of the Appellant’s release from detention. This is because, Mr Terrell submitted, the file minute recorded the following: “Subject released due to an in-country Right Of Appeal.” The letter of 27th June 2011 confirmed that the Appellant held a right of appeal against this decision, thus reading both the SAR entry and the letter together, it was more probable than not that this was the case, in Mr Terrell’s submission.
40. I have considered the parties’ respective submissions on this very carefully but conclude that, on the balance of probabilities, the Appellant was not served with a copy of this decision in 2011, nor at a later date, save for being provided with a copy on the day before this appeal hearing. My reasons for concluding this are the following:
(a) There is no evidence that the 27th June 2011 decision was served on the Appellant – the SAR file does not contain any reference to this decision, let alone to it being served, nor a copy of the decision. Mr Terrell accepted that this was the case and the Respondent has not separately disclosed any such evidence either, other than the copy of the decision as I have recorded above;
(b) The copy of the decision, as disclosed by the Respondent on the day before the hearing, does not include a date of service, where the open brackets to include this are blank. The copy also contains a number of items written in red font, including the Home Office reference number, the first sentence of the letter with the words “You applied”, the Appellant’s names and at the bottom of the letter the date of 27 June 2011. Mr Terrell was not able to assist why this was. It may be an indication that the letter is still in draft form;
(c) The entry of 19th July 2011 stating that “Subject released due to an in-country Right Of Appeal” is not in my view sufficient to deduce from this that the decision, and its service, was the trigger for the Appellant’s release. There is no reference to this decision in this entry and the subsequent entries in the Appellant’s Home Office file thereafter record further evidence being provided by the Appellant of his ties to the UK in August 2011, which indicate in my judgment that his case remained under consideration. The subsequent entries then record the receipt of correspondence from the Appellant’s legal representatives in 2013 and 2014 as I have listed above at para 35;
(d) I find it more likely than not, as Mr Spurling submitted, that the Respondent accepted that the Appellant’s case required consideration and that upon a decision being made in respect of the Appellant, that this would in any event carry an in-country right of appeal. At the time, the Appellant claimed to have British citizen children in the UK;
(e) Mr Terrell disclosed that the decision was deleted from the Home Office’s database CID on 18/04/2012, though a copy was retained. This also supports Mr Spurling’s submission that the Appellant’s case remained pending under consideration and awaiting a decision when he was released in July 2011 and later on in 2012;
(f) On the evidence before me, the Respondent’s understanding of her case-working of the Appellant’s revocation application of 2011 up until Mr Terrel’s skeleton argument of 2nd April 2025, was that “(n)o response appears to have been made to this application”. This was the phrase used by the Respondent in the decision of 11th April 2022 and in the heading of the Respondent’s appeal bundle prepared for the FtT appeal. As referred to above, the Respondent’s review is silent on this issue.
41. For the above-stated reasons, I find that it is more likely than not that the decision of 27th June 2011 was never finalised and served on the Appellant. Thereafter, I find that it is more likely than not that the Appellant’s 2011 application was treated by the Respondent as still awaiting a decision and this was the case until the decision in 2022 was made and issued to the Appellant.
The issue of delay
42. Pursuant to my findings above, a period of approximately 11 years and 4 months elapsed between the Appellant’s revocation application made in June 2011 until a decision was issued in October 2022 refusing to revoke the Deportation Order and refusing the Appellant’s human rights claim.
43. On any view, that is a significant period of time.
44. The Respondent has argued that this period of time resulted in whole or in part from the Appellant’s own actions in having used different names and/or identities. Mr Terrell’s submissions focused on the Appellant’s use of multiple identities over a prolonged period of time, which had likely contributed, at the very least, to the Respondent’s difficulties in maintaining accurate and coordinated records as well as decision-making.
45. Having considered the procedural history of this matter very closely, as set out above, and having considered the parties’ respective submissions on this issue very carefully, I do not accept that the Respondent has demonstrated that the Appellant’s past use of different names caused a delay of 11 years and 4 months.
46. I have no doubt that the Appellant’s history and past actions made matters more complicated for the Respondent and I do not underestimate in any way the task that the Respondent faced. However, even when taking into consideration the added complexities that this case presented, I do not accept that the responsibility for a period of 11 years and 4 months can be placed at the Appellant’s feet, either in its entirety or in large part.
47. I accept that the complexities surrounding the Appellant’s case and history would have meant that the Respondent’s usual or standard processing times at the time of the Appellant’s application would not have been feasible. However, even when accounting for that, the period in question in this matter far exceeds that allowance.
48. The added difficulty that the Respondent faces, is that she has chosen, for whatever reason, not to adduce any evidence of any difficulties she faced over the years in processing the Appellant’s application and/or his legal representatives’ correspondence. There are no letters disclosed in these proceedings, in which the Respondent may have communicated any difficulties to the Appellant and/or his legal representatives, in processing his application and/or correspondence. The SAR file obtained by the Appellant and disclosed into these proceedings contains no such letters.
49. The Respondent has not adduced any other evidence, for example in the form of a witness statement, to explain any difficulties that she experienced. This was despite a direction for any further evidence relied on by either party to be filed and served no later than two calendar months after the error of law decision was issued and sent to the parties in these proceedings.
50. There is only one reference in the Respondent’s file that I could see which is that considered at para 35(h) above and which consists of the Respondent informing the Appellant in a letter dated 8th July 2011 that arrangements for his removal from the UK are taking longer than the Respondent would like because the Appellant appears “to have given false information about (his) identity”.
51. As recorded above, I was grateful to Mr Terrell for the assistance that he was able to provide me and who confirmed in his skeleton argument at para 5 that “the SSHD has reviewed her internal records with a particular focus on the files which were created in different aliases. Such a review was prompted by the Appellant’s submission of GCID records which seem to suggest that the reason why the Appellant was released from detention in 2011 is because he had an in-country right of appeal (B/71)”. As I have extracted above at para 36, this led Mr Terrell to provide further information on the letter of 27th June 2011, which I have already addressed above. No further information or evidence as to the multiple files held, when these were linked up and any difficulties experienced in the Respondent’s decision-making, has been provided by the Respondent.
52. The above is in contrast with the records that the Appellant himself has been able to obtain from the Respondent and disclose into these proceedings. I have conducted a detailed analysis of these already and so I do not repeat this here, save to note that it is clear in several of those records that the Appellant’s multiple use of names and identities had been linked up from a very early stage in the Respondent’s processing of his application. In this respect, the following records are of note:
(a) The Respondent’s file on the Appellant includes an entry from the Appellant’s detention on 8th June 2011, namely before he even made his revocation application and which links him to the identity (as Badmus) in which the Deportation Order was signed (see para 35(b) above and [TB 71];

(b) The Respondent’s own letter of 27th June 2011, which was never finalised or served as considered at paras 40-41 above, is addressed to the Appellant as follows:

“To: Ogundare Theophulus Badmus Nigeria 06 May 1959
Alias: Toya Adewale Oduola Nigeria 15 April 1958”

Importantly, these are the two identities, including dates of birth, that matter the most in so far as the Appellant’s 2011 application was concerned since the latter was made in the name of Toyese Adewale Oduola with a date of birth of 15th April 1958. Albeit the Appellant’s first name was shortened to Toye in some of the ensuing correspondence, whilst accompanied with the same date of birth. The Badmus identity is the name in which the Deportation Order of 7th February 1994 was issued against the Appellant as referred to at (a) above;

(c) The Respondent’s own letter dated 8th July 2011 addressed to the Appellant referred to the relevant identities used in the past by the Appellant (see para 35(h) and [TB 239-242]);

(d) As I considered at para 35(h) above, the Appellant’s legal representatives at the time sent to the Respondent on 14th October 2013, and then again on 6th December 2013 and 14th March 2014, a copy of the IS151F issued to the Appellant, expressly referring to the set of 11 names. This document included the two identities that the Respondent would have required to link the Appellant’s revocation application made in 2011 to the Deportation Order made against him on 7th February 1994. It is also clear from the further entries in the Respondent’s file that all of the legal representatives’ correspondence was received and linked to the Appellant on file (see para 35(i), (k), (m)-(n) above).
53. It is clear from the above therefore that the Respondent was furnished, at the very least since 14th October 2013, with the necessary information to connect the identity of the Appellant, in which he applied for revocation, with the Appellant’s identity used in the 1993 and 1994 when he was convicted and when the Deportation Order was issued against him. It is important to note however, as I have done above, that the Respondent appeared to have already linked these two identities together since she drafted her letter of 27th June 2011 addressing the Appellant in those same two identities.
54. Furthermore, as I have summarised above, the Appellant, through (at times different) legal representatives remained in regular contact with the Respondent after making his application in June 2011. This is clear from the numerous items of correspondence sent by those acting for the Appellant enquiring of the progress in the Respondent’s case-working of his application and case more widely.
55. At best therefore, the Respondent took approximately 9 years to determine the Appellant’s 2011 application, if time is counted from the correspondence of October 2013 enclosing the IS151, and 11 years and 4 months if time is calculated from the 2011 application and the Respondent’s record of a letter being prepared on 27th June 2011. On either count, these are significant periods of delay and I do not accept that this was caused or largely contributed to by the Appellant. As considered above, there is a lack of evidence from the Respondent demonstrating this and the Appellant’s past use of identities was either fully disclosed by 2013 or already known by the Respondent as demonstrated by the documents and/or records listed above at para 52.
56. For completeness, I also address Mr Terrell’s submission that had the Appellant been expecting a decision to be taken in his 2011 application when he applied in 2020, this would have been clear from his written submissions made at the time in support of his application. I do not accept that a lack of an express reference to a 2011 application in the 2020 written representations indicates that the Appellant had understood his application to have already been decided. I bear in mind that the Appellant had changed legal representatives several times and his current solicitors, the authors of the covering letter of 8th September 2020, refer to previous solicitors having acted for the Appellant in 2018 but the Appellant having concerns in respect of their representation. Considering the time that had elapsed since the Appellant’s 2011 revocation application, I do not consider it surprising that there may have been some hesitancy on the part of the Appellant’s solicitors, if that was the case, to assert that the application remained undetermined.
57. The same can be said of the letters from Peer & Co in 2013 and 2014. I agree with Mr Terrell that Peer & Co did not expressly enquire of the Appellant’s 2011 application. However, again that application was made by a different firm of solicitors and not by Peer & Co. They clearly referred to their own correspondence going unanswered. I also note that their first letter, of 14th October 2013, asks when an immigration decision on the Appellant’s matter will be taken. These also raised that the Appellant had been reporting regularly for more than two years (and therefore includes since 2011) and they submitted that the Respondent had continued in their failure to take an immigration decision in the Appellant’s case.
58. Moreover, there is no evidence from the Respondent to support her assertion that the Appellant was of the understanding, or should have been, that his 2011 application had already been decided. As I have noted above, that was not even the Respondent’s own understanding when reaching her decision in October 2022 and when preparing for the FtT appeal. It appears that it is only the retrieval of the letter of 27th June 2011 that enabled Mr Terrell to suggest otherwise. However, I have already found that this was not served on the Appellant, nor otherwise disclosed to him at the time or within a reasonable period thereafter, and this letter was deleted from the Respondent’s records in 2012 (see para 8 of Mr Terrell’s skeleton argument).
59. Turning to the relevant principles when considering a period of delay, the authoritative judicial consideration of the relevance of delay in Article 8 cases is contained in EB (Kosovo) v SSHD [2008] UKHL 41; [2008] Imm AR 713. The well-known passages are set out at [13]-[16] of Lord Bingham’s Opinion:
“Delay

13. In Strbac v Secretary of State for the Home Department [2005] EWCA Civ 848, [2005] Imm AR 504, para 25, counsel for the applicant was understood to contend, in effect, that if the decision on an application for leave to enter or remain was made after the expiry of an unreasonable period of time, and if the application would probably have met with success, or a greater chance of success, if it had been decided within a reasonable time, and if the applicant had in the meantime established a family life in this country, he should be treated when the decision is ultimately made as if the decision had been made at that earlier time. For reasons given by Laws LJ, the Court of Appeal rejected this submission, for which it held Shala v Secretary of State for the Home Department [2003] EWCA Civ 233, [2003] INLR 349 to be no authority. While I consider that Shala was correctly decided on its facts, I am satisfied that the Court of Appeal was right to reject this submission. As Mr Sales QC for the respondent pointed out, there is no specified period within which, or at which, an immigration decision must be made; the facts, and with them government policy, may change over a period, as they did here; and the duty of the decision-maker is to have regard to the facts, and any policy in force, when the decision is made. Mr Drabble QC, for the appellant, did not make this submission, and he was right not to do so.

14. It does not, however, follow that delay in the decision-making process is necessarily irrelevant to the decision. It may, depending on the facts, be relevant in any one of three ways. First, the applicant may during the period of any delay develop closer personal and social ties and establish deeper roots in the community than he could have shown earlier. The longer the period of the delay, the likelier this is to be true. To the extent that it is true, the applicant's claim under article 8 will necessarily be strengthened. It is unnecessary to elaborate this point since the respondent accepts it.

15. Delay may be relevant in a second, less obvious, way. An immigrant without leave to enter or remain is in a very precarious situation, liable to be removed at any time. Any relationship into which such an applicant enters is likely to be, initially, tentative, being entered into under the shadow of severance by administrative order. This is the more true where the other party to the relationship is aware of the applicant's precarious position. This has been treated as relevant to the quality of the relationship. Thus in R (Ajoh) v Secretary of State for the Home Department [2007] EWCA Civ 655, para 11, it was noted that "It was reasonable to expect that both [the applicant] and her husband would be aware of her precarious immigration status". This reflects the Strasbourg court's listing of factors relevant to the proportionality of removing an immigrant convicted of crime: "whether the spouse knew about the offence at the time when he or she entered into a family relationship" see Boultif v Switzerland (2001) 33 EHRR 50, para 48; Mokrani v France (2003) 40 EHRR 123, para 30. A relationship so entered into may well be imbued with a sense of impermanence. But if months pass without a decision to remove being made, and months become years, and year succeeds year, it is to be expected that this sense of impermanence will fade and the expectation will grow that if the authorities had intended to remove the applicant they would have taken steps to do so. This result depends on no legal doctrine but on an understanding of how, in some cases, minds may work and it may affect the proportionality of removal.

16. Delay may be relevant, thirdly, in reducing the weight otherwise to be accorded to the requirements of firm and fair immigration control, if the delay is shown to be the result of a dysfunctional system which yields unpredictable, inconsistent and unfair outcomes. In the present case the appellant's cousin, who entered the country and applied for asylum at the same time and whose position is not said to be materially different, was granted exceptional leave to remain, during the two-year period which it took the respondent to correct its erroneous decision to refuse the appellant's application on grounds of non-compliance. In the case of JL (Sierra Leone), heard by the Court of Appeal at the same time as the present case, there was a somewhat similar pattern of facts. JL escaped from Sierra Leone with her half brother in 1999, and claimed asylum. In 2000 her claim was refused on grounds of non-compliance. As in the appellant's case this decision was erroneous, as the respondent recognised eighteen months later. In February 2006 the half brother was granted humanitarian protection. She was not. A system so operating cannot be said to be "predictable, consistent and fair as between one applicant and another" or as yielding "consistency of treatment between one aspiring immigrant and another". To the extent that this is shown to be so, it may have a bearing on the proportionality of removal, or of requiring an applicant to apply from out of country. As Carnwath LJ observed in Akaeke v Secretary of State for the Home Department [2005] EWCA Civ 947, [2005] INLR 575, para 25:

"Once it is accepted that unreasonable delay on the part of the Secretary of State is capable of being a relevant factor, then the weight to be given to it in the particular case was a matter for the tribunal".
60. The parties are agreed and it is not controversial in light of the guidance above that delay on the Respondent’s part is capable of being relevant to the proportionality exercise, either by way of enhancing and individual’s Article 8 rights, or in reducing the weight otherwise accorded to the public interest (taking care not to inadvertently double-count the relevance of the effect of any delay).
61. The statement of principle set out in EB (Kosovo) did not involve a deportation context. The public interest in play there was the need to maintain effective immigration control. As briefly referred to above at para 14, I requested that both parties address me on the relevance of SSHD v MN-T (Colombia), a judgment of the Court of Appeal in which the EB (Kosovo) delay principles were applied to a deportation appeal. Helpfully, in the course of Mr Terrell’s further written submissions on MN-T (Colombia), he was also able to address me on another deportation appeal considered by the Court of Appeal where the issue of delay featured: Secretary of State for the Home Department v SU [2017] EWCA Civ 1069.
62. In MN-T, the appellant arrived in the United Kingdom from Colombia at the age of nine, accompanied by family members. As a young adult, she became involved in criminality and was eventually convicted of possession with intent to supply a kilogram of cocaine for which she received a sentence of 8 years’ imprisonment. Following her release in 2003, the Secretary of State took no action until July 2008, when a decision to deport was issued. A subsequent appeal was dismissed the following year, but the Secretary of State again failed to act. Some three years later, the appellant applied for leave to remain on Article 8 grounds. That application was refused and an appeal to the FTT was allowed partly on the basis of unexplained delay on the Secretary of State’s part, and with reference to EB (Kosovo). That decision was then set aside by the Upper Tribunal, who then went on to re-make the appeal by allowing the appellant’s appeal. With reference to s.117C(6) of the 2002 Act and EB (Kosovo), the Upper Tribunal concluded that there had been “inordinate” and “inexcusable” delays and that this factor, combined with others, demonstrated the existence of ‘very compelling circumstances’.
63. The Secretary of State appealed against that decision and raised a number of grounds of appeal, the only one bearing relevance to the present case being the contention that the Upper Tribunal had misdirected itself in law when considering the question of delay. In his judgment, Jackson LJ (with whom Sales LJ, as he then was, agreed) observed at [38] that this aspect of the Secretary of State’s challenge took the Court into “new territory”. Having considered the passages in EB (Kosovo) quoted previously, he rejected the submission that the Upper Tribunal had impermissibly double-counted the impact of delay. Rather, the Upper Tribunal had permissibly found that the lengthy delay operated in the first two of the three respects identified by Lord Bingham in EB (Kosobo). That was because the appellant’s ties to the United Kingdom had strengthened over time and the sense of impermanence had faded - see [40]. Jackson LJ then added the following important observations at [41]-[42]:
“41. I should perhaps add this in relation to delay. As a matter of policy now enshrined in statute, the deportation of foreign criminals is in the public interest. The reasons why this is so are obvious. They include three important reasons:
1. Once deported the criminal will cease offending in the United Kingdom.
2. The existence of the policy to deport foreign criminals deters other foreigners in the United Kingdom from offending.
3. The deportation of such persons expresses society's revulsion at their conduct.

42. If the Secretary of State delays deportation for many years, that lessens the weight of these considerations. As to (1), if during a lengthy period the criminal becomes rehabilitated and shows himself to have become a law-abiding citizen, he poses less of a risk or threat to the public. As to (2), the deterrent effect of the policy is weakened if the Secretary of State does not act promptly. Indeed lengthy delays, as here, may, in conjunction with other factors, prevent deportation at all. As to (3), it hardly expresses society's revulsion at the criminality of the offender's conduct if the Secretary of State delays for many years before proceeding to deport.”
64. As noted by Mr Terrell in his written submissions, the judgment in MN-T (Colombia) was subsequently discussed in SU. That case concerned an individual who, following a 42-month sentence of imprisonment for fraud offences, had been deported, but had re-entered United Kingdom in 2000 in breach of the deportation order against them. In 2003, SU sought leave to remain on Article 8 grounds, relying on a relationship established after his unlawful re-entry. The Secretary of State had delayed making a decision on that application until early 2014. The application was refused and SU appealed. The FTT allowed his appeal, placing significant reliance on the Secretary of State’s delay of approximately 10 years. The Upper Tribunal dismissed the onward appeal. Richards LJ (with whom Sir Geoffrey Vos, C, and Asplin LJ agreed), concluded that the FTT had erred in failing to follow the principles set out in EB (Kosovo) and in failing to carry out the appropriate balancing exercise, which should have taken account of the fact that SU had re-entered the UK in breach of the deportation order against him - see [53]-[58]. Richards LJ emphasised the contrasting facts in MN-T (Colombia) and deemed the observations of Jackson LJ at [41]-[42] of that case to be “well made”, albeit that they did not form part of the reasoning of his judgment. Richards LJ held at [60]-[61] that it was important in all cases for a decision-making tribunal to apply the relevant provisions and legal principles. The appeal of SU was remitted to be considered afresh.
65. In his written representations on MN-T (Colombia) prepared by his solicitors, the Appellant specifically drew my attention to [35] of the judgment, where Jackson LJ held that while rehabilitation alone would not suffice to outweigh the high public interest in deportation, a lengthy delay made a critical difference as this amounted to an exceptional circumstance and led to the appellant (in that appeal) substantially strengthening her family and private life in the UK. It also led to her rehabilitation. The Appellant submitted that, like in MN-T (Colombia), the delay in this matter is both exceptional in duration and unexplained in substance. Moreover that, the Appellant’s family and private life, and evidence of rehabilitation, were all further established and developed during this period. In the Appellant’s submission, MN-T (Colombia) supports the proposition that delay of this nature can amount to a very compelling circumstance for the purposes of s.117C(6) of 2002 Act.
66. Mr Terrell relied on [41]-[42] of Jackson LJ’s judgment in MN-T (Colombia). With respect to [41.1], Mr Terrell accepted that where there is a period of delay, such a person will have a greater opportunity to show that they have become rehabilitated but Mr Terrell relies on the FtT’s finding that the Appellant had not in fact become rehabilitated during the period. He submitted that the FtT rather found that his use of false identities tended against the suggestion that he had reformed - see [15]-[16] of the FtT’s decision.
67. On the second facet of the public interest reasons at [41.2], Mr Terrell also acknowledged that it may be right in some cases and up to a point, that other foreign criminals may be less deterred to commit crimes if the Respondent delays pursuing deportation. Mr Terrell submitted however that equally, a person may nevertheless be deterred from committing an offence in the knowledge that the Respondent would likely seek to pursue their deportation even after many years have elapsed. Mr Terrell argued that ultimately, the effect of delay on deterrence must, at most, be minimal given the failure to deport can have no deterring effect at all.
68. Lastly, with regards to [41.3], Mr Terrell posited that the fact that the Respondent has, in this case, delayed pursuing deportation for a number of years, would not obviously neutralise public concern in permitting the Appellant to remain in the country. Mr Terrell continued that it may be right in some circumstances that the public no longer would have any concern but not obviously so on the facts of this case. Whilst acknowledging that the assessment that I am required to undertake in these proceedings is inevitably fact-sensitive and fact-specific, Mr Terrell confirmed that the Respondent endorses the observations in SU at [57]-[61] with particular emphasis on the Appellant’s return to the UK in breach of a deportation order against him.
69. Having set out what I regard as the relevant principles in relation to delay in the context of deportation appeals, I now move on to conduct the highly fact-sensitive and fact-specific assessment in the present case.
70. Having considered the guiding authorities from the higher courts very carefully on the issue of delay, I am satisfied that there has been a period of at least 9 years of operative delay, namely a delay that it is capable of having a material effect in the assessment of the ‘very compelling circumstances’ test. I have determined the period as 9 years to account for a period of ordinary case-working, so to speak, in a complex case which would have resulted from the Appellant’s application in June 2011. This is for the reasons that I have set out at paras 47 and 53 and which I do not rehearse here.
71. I have also addressed above, and need not rehearse here, that there has been no explanation provided by the Respondent for this period of delay, save for an assertion that the Appellant was responsible, which I have not found the Respondent to have demonstrated. This was despite numerous opportunities being available to the Respondent to provide an explanation and indeed evidence in support of her assertions, both within these proceedings and those at first instance. This is not acceptable.
72. As has been at the forefront of these proceedings, there is a high public interest in ensuring the deportation of foreign criminals. It is the Respondent who stands as the guardian of that public interest and it follows that if a person re-enters the UK in breach of a deportation order, the public interest demands that the Respondent pursues such a person with the powers and resources that are available to her. As can be seen from my summary of the evidence disclosed in these proceedings, the instances of active case-working are few and there is little sense from the Respondent’s records that she held this case to be of high public interest between 2013 and 2022. Neither has the Respondent sought to demonstrate otherwise within these proceedings as I have already addressed. This too is unacceptable.
73. For the reasons above, I find that the delay in the Appellant’s case between 2013 and 2022 is inexcusable and can properly be described as an egregious delay on the Respondent’s part.
74. Pursuant to the guidance handed down by the Supreme Court in EB (Kosovo), I now turn to the way in which this period of delay is relevant to this appeal. In my judgment, the first way that was identified in EB (Kosovo) applies in these proceedings as well: the Appellant has developed closer personal and social ties and established deeper ties to the UK. This does need to be considered through the prism of the earlier findings however as the Appellant is no longer in a relationship with his partner and his children are now adults. Mr Terrell submitted that this factor did not apply to the Appellant’s case as the FtT had found that the Appellant was not in a genuine and subsisting relationship with his partner. That is indeed the case but it does not follow that the Appellant’s own private has not strengthened. His family life with his children has also strengthened over time, as per the FtT’s findings and whilst the Appellant’s children are now adults, there is no dispute to him having been in a genuine parental relationship with his children when they were minors. The Appellant’s three youngest children turned 18 years old respectively in 2017, 2019 and 2021. Thus, for a large proportion of the relevant period of delay, the Appellant’s children were still minors with the two younger ones only turning 18 years old towards the end of the period of delay.
75. The second way that was identified in EB (Kosovo) also applies: the Appellant was indeed fully aware of the Deportation Order against him and the consequences of that order. He was all the more aware of it having entered in breach of that order and there would have been no doubt to the Appellant that there was “impermanence” to the Appellant’s residence in the UK, to use the Supreme Court’s term. However, the observations at [15] of the judgment in EB (Kosovo) resonate here: “if months pass without a decision to remove being made, and months become years, and year succeeds year, it is to be expected that this sense of impermanence will fade and the expectation will grow that if the authorities had intended to remove the applicant they would have taken steps to do so. This result depends on no legal doctrine but on an understanding of how, in some cases, minds may work and it may affect the proportionality of removal.”
76. Lastly, I agree with Mr Spurling that the third way identified in EB (Kosovo) also has relevance. I accept, as Mr Terrell submitted, that the evidence does not demonstrate that this is because the delay is shown to be the result of a dysfunctional system, which yields unpredictable, inconsistent and unfair outcomes.
77. The case-working and delay incurred in the Appellant’s case is entirely, on the evidence, bespoke to this matter and there is no evidence of any wider, systematic failures impacting others. The Supreme Court’s citing of Carnwath LJ’s observation in Akaeke v Secretary of State for the Home Department [2005] EWCA Civ 947, [2005] INLR 575, [25] is also relevant: “Once it is accepted that unreasonable delay on the part of the Secretary of State is capable of being a relevant factor, then the weight to be given to it in the particular case was a matter for the tribunal.” Whilst Mr Terrell is correct there is no comparator in this matter, compared to the appeal in EB (Kosovo), Mr Terrell accepted that the Respondent should have taken steps much earlier to determine the Appellant’s revocation application and enforce his deportation.
78. Mr Terrell also emphasised Lord Hope’s observations at [27] of his (consenting) judgment:
“I draw attention to this history in order to emphasise my noble and learned friend’s point that the weight which would otherwise be given to the requirements of firm and fair immigration control may be reduced if the delay is shown to be due to a system which is dysfunctional. There is, of course, no right to a decision within any given period of time. Article 8 claimants ought not to be advantaged merely because of deficiencies in the control system, as my noble and learned friend Lord Brown of Eaton-under-Heywood points out. Allowance must also be made for the administrative burden that is unavoidable if the system is to be fair, and a case ought not to succeed merely because it might have been stronger if it had been determined earlier. But the shortcomings that have affected the appellant’s case cannot be explained or excused on these grounds. On the contrary, the balance in the appellant’s favour is significantly strengthened by the fact that the explanation for the delay is so unsatisfactory.”
79. As I have addressed above, I have made allowances for the complexities of the Appellant’s case and for the administrative burden placed on the Respondent in respect of this case and more generally. But similarly to the cases cited above and for the reasons set out above, I do not accept that the shortcomings identified in this case can be explained or excused on these grounds and I am also of the view that the balance is strengthened in the Appellant’s favour by the fact that the explanation for the delay is unsatisfactory and still lacking.
80. For the reasons above there, I find that the period of delay relevant in these proceedings is capable of diminishing the public interest which would otherwise warrant the Appellant’s deportation. This is also consistent and reflected in Baroness Hale’s (as she then was) observations in her own (consenting) judgment in EB (Kosovo) at [32]:
“(…) In particular, I agree that prolonged and inexcusable delay on the part of the decision-making authorities must, on occasion, be capable of reducing the weight which would normally be given to the need for firm, fair and consistent immigration control in the proportionality exercise. That is a legitimate aim which will normally carry great weight in immigration cases. The heavy administrative burdens which such a system entails are well understood. But in article 8 cases, one is always concerned with whether the correct balance between the legitimate aim and the means employed has been struck on the facts of the particular case. Where the aim has failed as spectacularly as it did here, the general importance which is normally attached to it must to some extent be diminished. But it has still to be weighed in the balance along with everything else.”
81. For completeness, this is also consistent with and reflected in the Court of Appeal judgments of MN-T (Colombia) and SU (Pakistan).
82. I now turn to the way in which and to what extent the public interest in the Appellant’s deportation is reduced and I do so in the context of assessing whether or not there are ‘very compelling circumstances in the Appellant’s case, pursuant to s.117C(6).
The ‘very compelling circumstances’ test
83. I have already summarised and set out above the relevant legal framework that applies to an assessment under s.117C(6) of the 2002 Act and which is compliant with that statutory framework, reflecting in turn UK’s obligations under s.6 HRA 1998.
84. I confirm again that I have considered very carefully the relevant authorities and the evidence relied upon by each party within these proceedings, when conducting my assessment and reaching my conclusions below. I have set out my assessment using the balance sheet approach, being careful not to ‘double-count’ relevant factors.
85. As I have already addressed above, the parties were agreed that the findings made by the FtT, and summarised above at para 10, continue to apply. The Appellant very sensibly did not seek to re-visit these findings. Mr Spurling’s submissions focused on the delay he said had incurred in the Respondent’s consideration of the Appellant’s revocation application and how this diminished the very significant weight that would otherwise fall to be taken into account for public interests raised by the Respondent. Mr Spurling submitted that the diminishing impact on these issues was sufficient, on the particular facts of this case, to tip the balance in favour of the Appellant.
86. In response, Mr Terrell submitted that the Appellant had at the very least contributed to the delay through his own actions. As per my conclusions above, I have not found that the Respondent has demonstrated this. Mr Terrell also submitted that, in any event, the public interests in ensuring that the Appellant is deported from the UK and excluded from re-entering remains so serious that even if there has been a period of delay on the part of the Respondent, this was not sufficient to diminish those public interests so as to defeat the Respondent’s decision.
The factors relied on by the Respondent in favour of her decision and the interference with the Appellant’s rights
The public interest
87. The Appellant’s deportation is in the public interest and that interest has the weight of primary legislation behind it through s.117C(1) of the 2002 Act.
88. Although the constituent elements of the public interest are not spelt out in s.117C, they remain as described in the authorities pre- and post-dating the introduction of Part 5A of the 2002 Act. These are: protection of the public; deterrence; and society’s concern as to the ability of the authorities to deport foreign criminals: see, for example, OH (Serbia) v SSHD [2008] EWCA Civ 694; [2009] INLR 109 and, in a more recent judgment reviewing the relevant authorities, Zulfiqar v SSHD [2022] EWCA Civ 492; [2022] 1 WLR 3339, Underhill LJ at [38]-[44], to which Mr Terrell specifically drew my attention.
89. Concerning all three of these public interests, I find that the weight to be attached to these is significantly diminished by the period of egregious delay that has occurred since the Appellant made his application for revocation in June 2011. There is considerable force in Mr Spurling’s submission that whilst each element of the public interest, listed above, underpins the statutory regime and therefore ordinarily carries great weight, it follows that it is all the more important for the Respondent to take steps to protect such interests. The period of delay that has occurred does not indicate this, as per my findings above.
90. In light of the above, there is considerable reduction in force for the first public interest of ensuring that the Appellant ceases offending in the UK: the Appellant has arguably done so for a period of 32 years. Similarly, the deterrent effect of the policy has been significantly weakened in light of the Respondent not acting promptly, or at the very least, reasonably efficiently in the context of the Appellant’s case and the Respondent’s resources since the Appellant’s application for revocation. Thirdly and lastly, there has been little expression of revulsion at the Appellant’s criminality (and his re-entry resulting in his coming to the attention of the Respondent in 2011) in light of the Respondent delaying for many years before proceeding to refuse the Appellant’s revocation and human rights applications.
The seriousness of the offence
91. The seriousness of the offence is a matter which I am required to take into account by virtue of s.117C(2) of the 2002 Act. In so doing, I have borne in mind the guidance provided by the Supreme Court in HA (Iraq), at [60]-[71].
92. The Appellant has two criminal convictions. The first was on 18th February 1987 for attempting/obtaining services by deception and obtaining services by deception. For this, the Appellant was fined and the criminal court recommended that he be deported to Nigeria. The Appellant was so deported in April 1987.
93. On the Appellant’s re-entry (in a different identity) the Appellant was arrested on arrival on 16th May 1993 and was found to be concealing controlled drugs. On 30th July 1993, the Appellant (following a guilty plea) was convicted of being knowingly concerned in fraudulent evasion of prohibition or restriction on importation of Class A controlled drug. He was sentenced to four years’ imprisonment with the criminal court also recommending his deportation.
94. The sentencing remarks were not in evidence but I have no doubt that the Appellant’s conviction in 1993 was serious indeed. It is not necessary to repeat here the toxic effect of Class A drugs on society and the vast resources that the state has to dedicate to combatting the importation of such drugs and the waves of crimes and other societal effects that ensue from the trade and use of illegal drugs.
95. I acknowledge the fact that the offence was committed many years ago. Whilst this is of relevance when I turn to address factors weighing in the Appellant’s favour, I confirm here that it does not have an impact on the seriousness of the offence itself.
96. The seriousness of the offence in the present case clearly underpins the three elements of the public interest in deporting the Appellant, which I have considered above.
The Appellant’s re-entries to the UK
97. The Deportation Order was signed against the Appellant on 7th February 1994 and the Appellant was deported from the UK on 15th July 1995. The Appellant then re-entered on a number of occasions, using different identities. The first time was, the Appellant claims, in 1996 and following deportation action being taken against him, the Appellant returned voluntarily in June 2003. That same year, shortly thereafter in July 2003, the Appellant attempted to re-enter but was detained on arrival. The Appellant was then deported in October of that same year. The Appellant then re-entered, he claims in 2005, and was intercepted on 8th June 2011, as summarised within the context of these proceedings.
98. Pursuant to the Court of Appeal’s guidance in SU, it is of particular importance in weighing the effect of delay to have regard to the fact that the Appellant had been deported and had illegally entered the UK in breach of the Deportation Order. In these proceedings, the Appellant has so re-entered or attempted to re-enter not just once but in total three times and involving the use of false identities. The Appellant’s conduct in re-entering in breach of the Deportation Order and in using false identities to secure those re-entries clearly underpins the three elements of the public interest in deporting the Appellant, which I have considered above.
The factors relied on by the Appellant in favour of there being very compelling circumstances
99. I now turn to address the factors relied on by the Appellant. The factors below include the preserved findings of the FtT in the Appellant’s favour.
The Appellant’s family life established in the UK
100. The Appellant enjoys a family life with his former partner X, the mother of his children and their three adult children. The FtT accepted that there is real, effective and meaningful support within this family unit, despite the Appellant and X no longer being in a subsisting relationship as a couple. The FtT also found that as a young adult, the Appellant’s younger child will have continuing needs for his father in his life, as well as his siblings.
101. The Appellant formed his relationship with his former partner when he did not have any lawful leave in the UK. The Appellant has not held lawful leave during any time that he has spent in the UK.
102. As referred to above to at para 74, the Appellant’s three youngest children turned 18 years old respectively in 2017, 2019 and 2021. Thus, for a large proportion of the relevant period of delay, the Appellant’s children were still minors with the two younger ones only turning 18 years old towards the end of the period of delay.
103. The Appellant does not otherwise at present meet the requirements of s.117C(5) of the 2002 Act. It was also found by the FtT that the Appellant’s family members (former partner and children) can visit him in Nigeria and can support him from the UK and that the Appellant can talk to his children and former partner over the telephone continuing to offer the all important guidance/counselling role, which they have benefited from him to date.
104. For the above reasons and there being inbuilt into the concept of ‘little weight’ itself a small degree of flexibility (see Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58, [49]), I consider that the Appellant’s family life established in the UK carries a reasonable amount of weight. This is also because the Appellant was not afforded an opportunity to pursue his revocation claim on the basis of his children’s best interests, when they were minors, and which would have formed part of the assessment to be carried out under s.117C(5), in turn relevant to an assessment under s.117C(6). The Appellant’s family life with his former partner and children was also strengthened as a result. Pursuant also to the best interests jurisprudence, during the times of their minority, the Appellant’s children could not be held responsible for their parents’, and in particular for their father’s, actions.
Rehabilitation
105. Rehabilitation is a relevant consideration in the assessment of very compelling circumstances.
106. The authoritative statement on this issue is found in the judgment of Lord Hamblen in HA (Iraq). Its essence is contained at [53], [54], and [58]:
“53. Whilst it was common ground that rehabilitation is a relevant factor in the proportionality assessment there was some disagreement between the parties as to the reason for that and the weight that it is capable of bearing in the context of the very compelling circumstances test.

54. That it is a relevant factor is borne out by the Strasbourg jurisprudence. The time elapsed since the offence was committed and the applicant’s conduct during that period is one of the factors listed in Unuane, drawing on the ECtHR’s earlier decision in Boultif. This is also supported by domestic authority - see, for example, Hesham Ali (per Lord Reed at para 38); NA (Pakistan) at para 112 and, more generally, Danso v Secretary of State for the Home Department [2015] EWCA Civ 596.
(…)
58. Given that the weight to be given to any relevant factor in the proportionality assessment will be a matter for the fact finding tribunal, no definitive statement can be made as to what amount of weight should or should not be given to any particular factor. It will necessarily depend on the facts and circumstances of the case. I do not, however, consider that there is any great difference between what was stated in Binbuga and by the Court of Appeal in this case. 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, I would agree with Underhill LJ’s summary of the position at para 141 of his judgment:

“What those authorities seem to me to establish is that 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. I would add that tribunals will properly be cautious about their ability to make findings on the risk of re-offending, and will usually be unable to do so with any confidence based on no more than the undertaking of prison courses or mere assertions of reform by the offender or the absence of subsequent offending for what will typically be a relatively short period.””
107. It is common ground that the Appellant has not re-offended since 1993, i.e. for 32 years. He has however entered the UK on a number of occasions illegally and in breach of the Deportation Order, which I have considered above at paras 97-98 in favour of the Respondent.
108. The FtT considered that the use by the Appellant of false identities tended against any evidence of positive rehabilitation. There is no evidence before me however to demonstrate that the Appellant continued to use multiple or false identities after he applied for revocation of the Deportation Order in 2011.
109. On this basis, I am satisfied that the Appellant has reformed his life since seeking revocation in 2011. He has continued to raise a family and has provided much physical and emotional support to his children over the year as found by the FtT. The period of non-offending is plainly lengthy and I conclude that the risk of the Appellant committing further offences is, at most, low.
110. It remains the case, however that the mainstay of the Appellant’s argument is the absence of re-offending. However, this is not of the short duration contemplated by Underhill LJ in the passage cited with approval by Lord Hamblen in HA (Iraq). For this reason, I conclude that this carries some weight.
Other matters
111. For the sake of completeness and the avoidance of any doubt, I briefly address other matters which are relevant to my task of deciding whether very compelling circumstances exist, but do not fall within the specific factors already discussed above.
112. Although the Appellant cannot satisfy s.117C(4) of the 2002 Act, I take full account of the Appellant’s private life established in the UK. On the facts of this case and on the evidence before, this is closely related to his family life, which I have already considered above.
113. As regards section 117B of the 2002 Act, the only considerations which need to be mentioned are the English language ability and financial independence. In respect of the former, I accept that the Appellant speaks English – he gave oral evidence before the FtT in English. As regards the latter, there was no suggestion that the Appellant has had recourse to public funds. Thus, these considerations are of neutral effect.
Conclusions on very compelling circumstances
114. The assessment of whether very compelling circumstances exist is a highly fact-specific, cumulative exercise, involving an evaluative judgment within the applicable legal framework.
115. The public interest in this case is strong indeed - there is already a Deportation Order in place against the Appellant and the Appellant has re-entered in breach of this.
116. The Appellant has not suggested that any one of the factors weighing on his side of the balance could alone meet the very high threshold. On my assessment, that is clearly right.
117. The Appellant has not been able to satisfy either of the two statutory exceptions contained in ss. 117C(4)-(5) of the 2002 Act. On his case and in relation to s.117C(5) only, this is in part because he was not afforded an opportunity to demonstrate this for a period of between 9-11years when his revocation application was pending. However, satisfaction of the exception(s) under s.117C(5) alone would not have availed the Appellant by virtue of his status as a ‘serious offender’, i.e. someone who received a custodial sentence of at least four years.
118. I have attributed what I consider to be appropriate weight to the various factors relied on by the Appellant to demonstrate very compelling circumstances and have considered this attribution on a cumulative basis. As discussed at length in this decision, there are undoubtedly matters which disclose strong private and family life elements and others which reduce the public interest.
119. I return to the question of whether the public interest that would otherwise warrant the Appellant’s continued deportation and exclusion from the UK is so diminished by the delays in the Appellant’s case on the part of the Respondent so as to tip the balance in the Appellant’s favour amounting to very compelling circumstances. In my judgment, it is so reduced. As the guardian of the public interest, it is incumbent on the Respondent to process and determine applications for revocation within a reasonable timescale. What is reasonable will of course depend on the context that applies in each particular case.
120. However, for the reasons that I have considered at length and in detail in this decision, there has been no evidence before me capable of justifying why it took a period of more 11 years to determine the Appellant’s revocation application. Neither does this include a further period of approximately three years when the Appellant’s case has been litigated: the Respondent’s evidence before the FtT did not engage with the issue of delay, which had been plainly argued by the Appellant, and the Respondent’s evidence before this Tribunal was not much better. As referred to already, I am particularly grateful to Mr Terrell who did his best to assist but this was not sufficient. Whilst the Appellant’s actions in the past, and specifically prior to 2011, can reasonably be described to have been deplorable, the Respondent saw fit, for reasons that she only knows, not to determine the Appellant’s application until 2022. This has forced me to conclude that the Respondent did not prioritise the strong public interest during that time, which is a very significant period and which in turn and at this present time reduces its force in favour of the Appellant.
121. The ‘very compelling circumstances’ threshold is undoubtedly stringent and I have at the forefront of my mind the public interest considerations which apply, even when reduced in effect. Taking cumulatively the above-listed factors in favour of the Appellant remaining in the UK, together with my findings reached in respect of the Respondent’s case-working in this matter and the consequent reduction in the strength of the public interest, I am satisfied that the particular circumstances of this Appellant and his family, together with the particular aspects of the delay that has incurred, demonstrate that this threshold is also met.
122. With all of the above in mind, I reach the overall conclusion that the Appellant is able to demonstrate that there are very compelling circumstances in his case. As I have addressed above, this is so when I approach the assessment from the perspective of a reduction of the public interest. This, I stress again, is on the particular facts of this case. I find therefore that the Appellant meets the requirements of s.117C(6) of the 2002 Act amounting to an exception to his deportation.
123. It follows from this that the Appellant’s removal from the United Kingdom pursuant to the Respondent’s refusal of his human rights claim is a disproportionate and, in turn, unlawful interference under s.6 of the Human Rights Act 1998.
Notice of Decision
124. The decision of the FtT dated 25th June 2023 did involve the making of material errors of law and has been set aside, pursuant to my earlier decision dated 23rd December 2024.
125. I re-make the decision by allowing the Appellant’s appeal on Article 8 human rights grounds.


Sarah Pinder

Judge of the Upper Tribunal
Immigration and Asylum Chamber


04.08.2025


IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002843

First-tier Tribunal No: HU/52658/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………23rd December 2024……

Before

UPPER TRIBUNAL JUDGE PINDER

Between

ODUOLA TOYE
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Spurling, Counsel, instructed by Hunter Stone Law.
For the Respondent: Mr S Walker, Senior Presenting Officer.

Heard at Field House on 7 November 2024


DECISION AND REASONS
1. The Appellant appeals with the permission of Upper Tribunal Judge Bulpitt against the decision of First-tier Tribunal Judge S J Clarke. By her decision of 25th June 2024, Judge Clarke (‘the Judge’) dismissed the Appellant’s appeal against the Respondent’s decision to refuse to revoke a deportation order.
Background
2. The Appellant is a citizen of Ghana. When the appellant was previously resident in the UK, he was convicted on 18th February 1987 of attempt/obtaining services by deception. He received a fine and the court recommended his deportation. According to the Respondent’s records, the Appellant was deported to Nigeria in April 1987. On 16th May 1993, the Appellant entered the UK again as a visitor, having used a different name. He was arrested on arrival and subsequently convicted of importing Class A controlled drugs. The Appellant was sentenced to four years’ imprisonment and once again, the Court recommended his deportation. A Deportation Order was signed on 7th February 1994 and the Appellant was deported to Nigeria on 15th July 1995. The Appellant claims to have re-entered subsequently in breach of that Deportation Order in 1996. Thereafter, several applications were made by the Appellant, but these were refused and not challenged on appeal by the Appellant. The Appellant was again deported to Nigeria on 9th October 2003.
3. Thereafter, the Appellant claims to have re-entered again in breach of the previous Deportation Order in 2005, using a different identity. Following an encounter with the police on 8th June 2011, the Appellant was served with notices as an illegal entrant. He then made an application on 16th and 23rd June 2011 to revoke the Deportation Order against him. That application was not refused by the Respondent until 11th April 2022. The Respondent recorded in their chronology that “no response appears to have been made to (the Appellant’s 2011) application” and that the Appellant’s representatives at the time made further representations on 14th October and 6th December 2013 and 17th March 2014. The Respondent further recorded that different representatives made another application to revoke the Deportation Order on 8th September 2020 and 24th May 2021, with a another application for limited leave to remain made on 14th January 2022. The Respondent noted in her decision that each set of representations, dated as summarised immediately above, were considered in her decision of 11th April 2022.
4. In summary, the Respondent considered in her decision whether there were ‘very compelling circumstances over and above the exceptions’ capable of outweighing the public interest in maintaining the Deportation Order against the Appellant and in ensuring his deportation from the UK (‘the very compelling circumstances test’). The Respondent reiterated the lengthy and adverse immigration and criminal histories of the Appellant. The Respondent considered that the Appellant had not raised a family life with a qualifying partner and noted that the Appellant’s children were all over the age of 18 years old. Thus, the Appellant had not raised a family life with any qualifying children either.
5. When considering the Appellant’s private life established in the UK, the Respondent was not satisfied that the Appellant could meet Exception 1 – contained in s.117C(4) of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’) - since he had not been resided in the UK lawfully and in her view, there were no very significant obstacles to his reintegration in Nigeria. The Respondent did confirm that she was not disputing that the Appellant was socially and culturally integrated in the UK. The Respondent noted that the Appellant had used numerous aliases, had been convicted of serious criminal offences and had not remained outside of the UK for a period of at least 10 years in light of his re-entries at various times while the Deportation Order remained in force. In light of this, the Respondent considered that the continuation of the Deportation Order would not be contrary to the ECHR and that the public interest in his deportation was not outweighed by compelling factors.
6. The Appellant appealed against that decision and his appeal was heard by the Judge on 8th June 2023. The Appellant pursued his appeal on the basis that the Respondent’s decision was in breach of his rights under Article 8 ECHR, with specific reference to his reformed character and the impact on his children and grandchildren, should he be excluded from the UK.
7. Before the Judge, the Appellant was represented by Ms Harvey, Counsel and the Respondent by a Presenting Officer. The Judge heard from the Appellant himself and four of his adult children. Following the parties’ respective oral submissions, the Judge reserved her decision.
The Decision of the First-tier Tribunal Judge
8. The Judge briefly recorded the relevant immigration and criminal histories of the Appellant at [1]-[4]. The Appellant had initially applied for an adjournment of his appeal hearing to enable the Appellant’s wife and son to give evidence, which they were each unable to do, for different reasons, on the day of the hearing,. This application was refused and the Judge recorded her reasons at [5].
9. The Judge’s findings on the Appellant’s human rights claim start at [7]. The Judge did not accept that the Appellant and his wife were in a subsisting relationship ([10]) nor that the claimed impact upon his wife had been demonstrated. The Judge considered that the Appellant’s wife and indeed his children could continue to see their father ([13]). The Judge did find at [14] that the Appellant enjoyed a family life with his wife and their three remaining children because they lived together in the family home, albeit with the Appellant and his wife not in a subsisting relationship as a couple. The Judge also accepted that there was real, effective, and meaningful support between each of them ([14]).
10. In relation to the Appellant’s claim to have reformed himself, the Judge found at [15] that the Appellant had continued his practice of using different names as and when it suited him, giving examples of this at [15]-[16]. The Judge returned to her findings of family life between the Appellant and his children at [20], accepting that the Appellant is an important figure in each of their lives and that the Appellant’s youngest son, SO, will have continuing needs for his father in his life as well as his siblings. However, the Judge considered that the Appellant can continue to maintain contact with each of his children by telephone. This also applied to the Appellant continuing to provide the guidance and counselling role that they have each benefited from so far. The Judge noted that SO would not be alone in the UK because he had his mother and siblings, with whom he lived.
11. Similarly, the Judge considered at [21] the Appellant’s case in respect of his bond with his grandchildren accepting that they have close bonds and confirming that she had taken into account the rights and impacts upon all affected by the deportation of the Appellant. This did not however displace the Judge’s findings that the Appellant and his children/grandchildren can continue to maintain contact and can continue to support each other with the Appellant in Nigeria through visits, telephone calls and so on. The Judge did not accept either that the Appellant’s medical problems would amount to very significant obstacles to his reintegration in Nigeria ([24]).
12. At [26]-[31], the Judge considered the relevant legal framework and leading authorities relevant to the Appellant’s circumstances and drew her assessment of the evidence and her findings together, concluding at [33] that the Respondent’s decision is not in breach of any family or private life established by the Appellant in the UK under Article 8. This was given the public interest in his deportation, heightened by his breaches in the past, and the Judge’s findings that the merits in his claims were not sufficient to displace that public interest. The Judge reiterated at [34]-[35] her reasons for finding that the Appellant had not met the test of very compelling circumstances over and above the exceptions to deportation. Accordingly, the Judge dismissed the Appellant’s appeal.

The Appeal to the Upper Tribunal
13. The Appellant pursued a single ground of appeal, which was that the Judge had failed to consider whether or not the delay in considering the Appellant’s application for a revocation of the Deportation Order against him effectively tipped the balance in his favour or from the competing perspective, lessened the public interest in maintaining the Deportation Order and in ensuring that the Appellant be deported from the UK. When granting permission to appeal, Judge Bulpitt considered that it was arguable that the Judge had failed to make findings on the issue of delay and/or had failed to provide adequate reasons for the conclusion she reached about the impact of the delay on the Appellant’s Article 8 claim. Judge Bulpitt noted that the effect of the delay on his Article 8 claim was raised directly in the appeal skeleton argument and it was arguable that the Judge’s assessment of that impact was not made clear in her decision and reasons. Judge Bulpitt also noted that in light of the appellant’s “terrible immigration and criminal history”, any error committed may be academic but the error of law pursued by the Appellant was nevertheless arguably material to the Judge’s decision.
14. There was no response before me from the Respondent pursuant to Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
15. Mr Spurling, on behalf of the Appellant, made further oral submissions before me maintaining the Appellant’s single ground of appeal. Mr Walker duly responded defending the Judge’s decision and maintaining that no material error of law had been made. I have addressed those respective submissions in the section immediately below when setting out my analysis and conclusions.
16. I reserved my decision at the conclusion of the parties’ respective submissions.
Analysis and Conclusions
17. At [31], the Judge referred to and cited from the leading authorities that have application to this appeal on the issue of delay: Secretary of State for the Home Department v SU (Pakistan) [2017] EWCA Civ 1069 and EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41. The Judge noted that at [57] of his judgment in SU (Pakistan), Richards LJ stated that:
(I)t is of particular importance in weighing the effect of delay to have regard to the fact that the respondent had been deported and had illegally entered the UK in breach of the deportation order. The appellant in EB (Kosovo) was in a very different position, being an asylum seeker.
18. Whilst the Judge had correctly identified the applicable guidance above, it is not clear from any application of that guidance that the Judge had indeed considered the issue of delay, as expressly raised by the Appellant and any response pursued by the Respondent before her. The paragraphs that follow the extracted guidance in the Judge’s decision recorded the Appellant’s family and private life established ([32]), the Judge’s finding that the public interest is not outweighed and that she had taken into account all of the facts of the case ([33]), the Appellant’s ability to live in Nigeria and his and his family’s ability to remain in touch ([34]), as well as the seriousness of the Appellant’s criminal conviction and of his other actions by entering and when in the UK ([35]).
19. I accept Mr Walker’s submission that the Judge had engaged with and considered the Appellant’s actions in the use of different identities and names at [15]-[19] and of entering at various times in breach of the Deportation Order but I do not accept that this demonstrates, as submitted by Mr Walker, that the Judge found that any delay in considering the Appellant’s revocation application was as a result of any difficulty experienced by the Respondent in linking her various records on the Appellant. There was simply no evidence offered by the Respondent to address why it took a period of over 11 years for the Appellant to be served with a decision on his revocation application, first made in 2011. The only reference that I have seen to this period is at §3 of the Respondent’s decision where the following is recorded as part of the Appellant’s immigration history and following the entry on the Appellant’s 2011 application:
No response appears to have been made to this application.
20. The Judge also noted that the Appellant, whilst making the further submissions in his name, did enclose the IS151 form in the same name with which the Deportation Order was issued to the Appellant back in 1994. On the face of it therefore, the Appellant had provided a level of information to link some of the relevant identities/aliases used by the Appellant previously.
21. I also agree with the observation of Judge Bulpitt when granting permission that the Judge’s decision is not easy to follow – the Judge’s findings are often repeated and the Judge has also often moved from one issue to another and back again. There is a no clearly set-out balance sheet approach to the competing considerations when the Judge considered the ‘very compelling circumstances’ test and whilst this in itself is not demonstrative of an error of law, it further satisfies me that the Judge has materially erred in law in failing to set out findings on first whether there was any delay on the part of the Respondent, and subsequently, the reasons for that delay, whether there was any impact on the Appellant and his family members from any delay and lastly whether any delay lessens the public interest in maintaining the Deportation Order against the Appellant and whether that is sufficient, together with the other factors in the Appellant’s favour, to tip the balance for the Appellant.
22. Mr Walker very fairly acknowledged that the Judge had not in her decision linked any actions taken by the Appellant that could be described as frustrating any enforcement action being taken against him as the reason for the delay but he submitted that there was ample indication at [15]-[19] that the Judge had taken into consideration the Appellant’s own actions. Mr Walker submitted that this must mean that the Judge was satisfied that the delays had been caused by the Appellant in his dishonesty. Mr Spurling also very fairly acknowledged that the answers to the issues I have set out at §21 above may not each, or all, fall in favour of the Appellant but considering the passage of time that had elapsed between 2011 and 2022 and the serious consequences for both parties that would arise from a determination of those issues, this issue ought to be properly determined.
23. As I have already addressed above, it is clear from the Judge’s own summary that the Appellant did bring to the Respondent’s attention, at least in 2013, that a notice of liability to be removed (the IS151) had been issued to him in a different name. Considering the length of time that did elapse thereafter, any delay, if found, would not be insignificant. On balance therefore, I am satisfied that this issue was not properly considered and addressed by the Judge in her decision.
24. I am satisfied that the Judge has materially erred in law and the Judge’s decision to dismiss the appeal is therefore set aside pursuant to s.12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 for the reasons above.
25. Both parties agreed that since a decision will need to be remade in the Appellant’s appeal after considering the issue of delay, it was appropriate for the appeal to be retained in the Upper Tribunal for re-making. This is because of the relatively narrow factual fact-finding that remains to be made, pursuant to the Joint Practice Statement of the First-tier Tribunal and Upper Tribunal at [7.2].
Notice of Decision and Directions
26. The decision of the First-tier Tribunal is set aside.
27. The parties are to have careful regard to the following directions:
(1) Any further evidence relied on by either party is to be filed and served no later than two calendar months after this decision being sent to the parties.
(2) Both parties to file and serve skeleton arguments at least 7 days before the hearing, provided at (3) below.
(3) The appeal is to be re-listed in the Upper Tribunal before Judge Pinder on the first available date at least three months after the date of the sending of this decision on error of law. The provisional time estimate for the hearing should be 2 hours, subject to any alternative view by the parties.
(4) The Appellant had indicated at the hearing on 7th November 2024 that he does not require an interpreter for the next hearing.


Sarah Pinder

Judge of the Upper Tribunal
Immigration and Asylum Chamber


04.12.2024