Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005800
First-tier Tribunal No: HU/18141/2019

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 4th of June 2026

Before

UPPER TRIBUNAL JUDGE HIRST

Between

Secretary of State for the Home Department
Appellant
and

Mournir Megherbi
Respondent

Representation:
For the Appellant: Ms Gilmour, Senior Home Office Presenting Officer
For the Respondent: Ms Khalaf, Chamberlain Immigration Services Ltd

Heard at Field House on 20 May 2026

DECISION AND REASONS

1. The Secretary of State appeals from the decision of the First-tier Tribunal dated 6 October 2025 allowing the Respondent's appeal on human rights grounds. Permission to appeal was granted by the Upper Tribunal on 3 February 2026.
2. For the reasons set out below I have concluded that the decision of the First-tier Tribunal involved material errors of law and should be set aside. The appeal will be remitted to the First-tier Tribunal for rehearing.
Background
3. The Respondent is a national of Algeria who arrived in the UK as a visitor on 26 October 2007. On 14 December 2009 he was granted leave to remain as the family member of an EEA national, which was subsequently extended to 4 March 2016. He made subsequent applications for leave to remain on human rights grounds and on 22 January 2014 was granted leave valid to 22 January 2016.
4. On 14 April 2014 the Respondent was convicted of a public order offence and was sentenced to a conditional discharge of 12 months.
5. On 15 January 2016 the Respondent applied for further leave to remain as a parent, which was granted on 8 April 2016.
6. On 9 October 2017 the Respondent was convicted of sexual assault following a guilty plea. He was sentenced to 9 months’ imprisonment and made subject to sex offender registration requirements for ten years.
7. On 15 October 2017 the Secretary of State served notice of intention to deport the Respondent. The Respondent made a human rights application on the basis of his family life with his partner K which was refused on 28 October 2019. The Respondent appealed to the First-tier Tribunal. In 2024, whilst the appeal was pending, the Respondent was convicted of criminal damage and was fined £250 and made subject to a restraining order. On 29 January 2025 the Respondent's daughter A was born.
8. There was a significant delay in the hearing of the appeal, which appears to have been due mainly to ongoing proceedings in the Family Court in relation to the Respondent's two older children. The appeal was eventually heard on 30 September 2025 and was allowed in a decision promulgated on 14 October 2025. The judge found that the Respondent was a ‘foreign criminal’ for the purposes of s117C Nationality, Immigration and Asylum Act 2002 (‘NIAA 2002’). He found that the requirements of both Exception 1 and Exception 2 in s117C(4) and (5) NIAA 2002 were not met, but nonetheless concluded that there were very compelling circumstances in the Respondent's case such that s117C(6) was met.
9. The Secretary of State sought permission to appeal, which was refused by the First-tier Tribunal but granted on 3 February 2026 by the Upper Tribunal. The appeal came before me at an error of law hearing on 20 May 2026. Having heard submissions from the parties I gave my decision that the First-tier Tribunal’s decision involved a material error of law, for the reasons which are set out in more detail below.
Grounds of appeal and submissions
10. The Appellant relies on a single broad ground of appeal, which in summary is that the First-tier Tribunal misdirected itself when applying s117C NIAA 2002 to the Respondent's individual circumstances. In particular, the Appellant asserts that the decision of the First-tier Tribunal involved the following errors of law:
a. Applying the wrong threshold test to s117C(4)(a) NIAA 2002;
b. Applying the incorrect test for s117C(6);
c. Incorrectly reducing the weight to be afforded to the Respondent's offending;
d. Reaching contradictory and internally inconsistent findings as to whether there were in the Respondent's case very compelling circumstances;
e. Misdirecting itself as to the elevated threshold required for s117C(6).
11. For the Appellant, Ms Gilmour relied on the grounds of appeal. She submitted that the judge had erred in a number of respects, including in particular his approach to the s117C(6) ‘very compelling circumstances’ test. For the Respondent, Ms Khalaf submitted that the judgment should be read as a whole. The judge had set out the relevant legal framework and had correctly directed himself by reference to the factors identified in HA (Iraq) v SSHD [2022] UKSC 22, [2023] 1 All ER 365 at §51. He had given detailed consideration to those factors and the finding that there were very compelling circumstances was one which was open to him.
Discussion and decision
12. When a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person’s right to respect for his private or family life under Article 8 ECHR, it must apply the provisions of s117A-D Nationality, Immigration and Asylum Act 2002. When assessing whether an interference with a person’s Article 8 rights is justified under Article 8(2), the court or tribunal must in particular have regard to the considerations in s117B, and in cases concerning deportation of foreign criminals, to the considerations in s117C.
13. Section 117C(3) provides that, where a foreign criminal has not been sentenced to a period of imprisonment of four years or more, the public interest requires his deportation unless either or both of the exceptions in s117C(4) or (5) applies.
14. Exception 1 in s117C(4) applies where (a) the foreign criminal has been lawfully resident in the UK for most of his life, (b) he is socially and culturally integrated in the UK, and (c) there would be very significant obstacles to his integration into the country to which it is proposed to deport him.
15. Exception 2 in s117C(5) applies inter alia where the foreign criminal has a genuine and subsisting parental relationship with a qualifying child and the effect of his deportation on the child would be unduly harsh.
16. In cases where neither Exception 1 nor Exception 2 applies, a full proportionality assessment is required, weighing the interference with the Article 8 rights of the foreign criminal and his family against the public interest in deportation. In conducting that assessment, s117C(6) provides that the public interest requires deportation unless there are “very compelling circumstances over and above those described in Exceptions 1 and 2”: HA (Iraq) v SSHD [2022] UKSC 22, [2023] 1 All ER 365 at §47.
17. Although the wording of s117C(6) is directed to offenders who have been sentenced to at least four years’ imprisonment, an offender who has not been sentenced to at least four years’ imprisonment who cannot satisfy Exceptions 1 or 2 may also seek to show that the ‘very compelling circumstances’ test in s117C(6) is met: NA (Pakistan) v SSHD [2016] EWCA Civ 662, approved in HA (Iraq) at §50. The s117C(6) threshold is high, and requires “a very strong claim indeed”: Hesham Ali v SSHD [2016] UKSC 60, [2016] 1 WLR 4799. Cases in which the circumstances are sufficiently compelling to outweigh the high public interest in deportation where an offender does not meet the statutory exceptions will be rare.
18. Rehabilitation is a relevant factor in the proportionality assessment, but the mere fact that an individual has not committed further offences since release from prison (as opposed to evidence of positive rehabilitation which reduces the risk of further offending) is unlikely to be a material factor: Binbuga v SSHD [2019] EWCA Civ 551, [2019] Imm AR 1026 at §84.
19. In the Respondent's case, the First-tier Tribunal found that he was a foreign criminal for the purposes of s117C NIAA 2002, because although he had not been sentenced to at least 12 months’ imprisonment, his index offence had caused serious harm. That appears to have been accepted by the Respondent in his oral evidence.
20. The Tribunal went on to consider whether the exceptions in s117C applied. The judge considered Exception 2 in s117C(5) first. It was accepted at the hearing that the Respondent's partner K and daughter A were British, and were therefore a qualifying child and partner for the purposes of s117C(5). The judge found (§47) that it would be unduly harsh for A and K to join the Respondent in Algeria, and further (§48) that the Respondent's removal to Algeria without A and K would not have unduly harsh effects. Exception 2 therefore did not apply.
21. The First-tier Tribunal then went on to consider whether there were very compelling circumstances which rendered the Respondent's deportation disproportionate. The judge began this part of the decision by considering (§53) the factors which related to Exception 1. He found (§54) that the Respondent had lived in the UK for just under half his life, with nearly 16 years of lawful residence. He found (§55) that the Respondent was socially and culturally integrated in the UK, but concluded (§56) that there were not very significant obstacles to his integration in Algeria. Exception 1 therefore did not apply.
22. The effect of the judge’s findings was that neither Exception 1 nor Exception 2 was met in the circumstances of the Respondent's case. The Respondent could only succeed in meeting the ‘very compelling circumstances’ test in s117C(6) if he was able to demonstrate circumstances “over and above those described in Exceptions 1 and 2”.
23. The judge’s reasoning on ‘very compelling circumstances’ is set out at §58-59 of the decision:
“58. I turn to the remaining factors outwith the Exceptions which I need to consider. The only additional factor is the Appellant’s conduct since the offence was committed. He has one further conviction for criminal damage which occurred during a dispute with his ex-wife that contact with their children. Otherwise he has no further convictions. I note that social services have also determined that they do not need to be involved in the family. Although rehabilitation is rarely of significant weight because of the importance of deterrence and public concern, in this case I find that the Appellant is rehabilitated. This does slightly blunt the public interest.
59. Determining whether there are very compelling circumstances requires me to make a broad evaluative assessment of whether the public interest in deportation is outweighed by the level of interference with the Appellant’s private and family life. I also must bear in mind that private life developed while the Appellant’s leave was precarious gets little weight under section 117B of the NIAA. Nevertheless, looking at the factors on both sides of the balance, I find that the Appellant’s deportation, when all factors are taken into account, is disproportionate. To look at this in a very straightforward way, I find that a conviction resulting in a sentence of nine months for an offence committed nine years ago does not justify separation of the Appellant from his British daughter, long-term British partner, and removal from the country where he has lived lawfully for the past 16 years. The situation might have been different had this case been determined more promptly. But during the period of delay, which is largely caused by the Appellant, he has not bolstered the Respondent’s case by seriously offending further (which is a situation the Tribunal does see). He has bolstered his own by developing strong family life. The Tribunal considers the situation now, not when decisions were made in 2017, 2019 or 2021.”
24. Ms Khalaf sought to persuade me that the judgment had to be read as a whole, and that the judge had properly directed himself by reference to §51 of HA (Iraq) and had considered relevant factors. I reject that submission. The passage at §58-59, even read in the context of the findings which preceded it, discloses a number of errors.
25. First, the judge did not either expressly or in substance identify that the ‘very compelling circumstances’ threshold required circumstances which were “over and above” those described in Exceptions 1 and 2. Instead, his reference to a “broad evaluative assessment” echoes Kamara v SSHD [2016] 4 WLR 152 at §14 (a case concerned with the different question, under Exception 1, of whether there are very significant obstacles to integration in the country of return). The judge’s reasoning does not, either expressly or in substance, reflect the clear guidance given in HA(Iraq) at §50 that a ‘near miss’ case, in which the appellant could only show that he fell short of meeting Exceptions 1 or 2, would not constitute ‘very compelling circumstances’ sufficient to meet s117C(6).
26. Second, the judge did not identify with any clarity which aspects of the Respondent's circumstances he considered to be ‘very compelling circumstances’ meeting the s117C(6) threshold, or explain why those aspects constituted compelling circumstances over and above Exceptions 1 and 2.
27. Third, the judge erred in concluding that the Respondent was rehabilitated. The judge did not address, either expressly or in substance, the guidance in HA (Iraq) and Binbuga that mere lack of offending would not carry significant weight in the very compelling circumstances test. In the Respondent's case, by contrast, he had a further recent conviction. The conclusion that the Respondent was rehabilitated when he had recently been convicted of a further offence was one which at the very least required clear and detailed reasons going beyond simply the lack of a custodial sentence.
28. Fourth, neither the absence of convictions carrying a custodial sentence, the development of strong family life or long residence in the UK were, either individually or cumulatively, factors which were sufficiently compelling to meet the ‘very compelling circumstances’ test.
29. Those errors were material to the judge’s conclusion that s117C(6) was met on the facts of the Respondent's case and that his removal would be disproportionate. I therefore conclude that the First-tier Tribunal’s decision involved the making of a material error of law and set the decision aside.
Disposal
30. Having regard to paragraph 7 of the Practice Statement and the guidance in AEB [2022] EWCA Civ 1512, I consider that it is appropriate for the appeal to be remitted to the First-tier Tribunal for rehearing. The First-tier Tribunal’s finding at paragraph 43 of the decision that the Respondent is a foreign criminal for the purposes of s117C NIAA 2002 is preserved.

Notice of Decision
The decision of the First-tier Tribunal involved the making of a material error of law and is set aside. The appeal is remitted to the First-tier Tribunal for rehearing before a different judge with the finding at paragraph 43 preserved.
L Hirst

Judge of the Upper Tribunal
Immigration and Asylum Chamber

21 May 2026