Home Secretary v Lewis: Court of Appeal restates the 'very compelling circumstances' test in deportation

The Court of Appeal has set aside a decision allowing a serious drug offender to resist deportation on Article 8 grounds, holding that both tribunals below misapplied the statutory test governing the removal of foreign criminals.

In Secretary of State for the Home Department v Collins Cuthbert Lewis [2026] EWCA Civ 879, Lord Justice Lewis, with whom Moylan and Stuart-Smith LJJ agreed, allowed the Home Secretary's appeal and remitted the matter to the First-tier Tribunal. The respondent, a Dominican national who arrived in the United Kingdom aged 14 in 2007, had accumulated a substantial record of drug offending, culminating in sentences of three years and nine months in 2019 and, after his release, five years and four months in 2024. As a serious offender sentenced to at least four years, he could resist deportation only by establishing very compelling circumstances over and above those described in Exceptions 1 and 2, under section 117C(6) of the Nationality, Immigration and Asylum Act 2002.

The First-tier Tribunal had allowed his human rights appeal, finding such circumstances in his wish to establish contact with his son, his post-traumatic stress disorder, and the absence of support in Dominica. The Upper Tribunal dismissed the Home Secretary's challenge, treating the finding of very compelling circumstances as one of fact rather than law.

Lord Justice Lewis rejected that characterisation. While the existence of particular circumstances is a matter of fact, the assessment of whether they amount to very compelling circumstances over and above the statutory exceptions is a legal question that must be conducted within the framework in Part 5A of the 2002 Act. The tribunals had lost sight of that structure, a point traced back through NA (Pakistan), Yalcin, HA (Iraq) and the recent decision in Kapikanya, which cautioned against bypassing the exceptions and proceeding straight to a general proportionality assessment.

The central flaw concerned the respondent's relationship with his son. He had neither seen nor contacted the child, born in 2018, since around October 2019. There was accordingly no genuine and subsisting relationship capable of engaging Exception 2, and no rational basis for finding that removal would be unduly harsh on the child. A genuine wish to establish contact in the future was not, the court held, something over and above Exception 2. It was something less, being directed at the potential impact on the applicant rather than on a partner or child. Deportation of a serious offender in those circumstances did not offend Article 8.

The judgement also faulted the treatment of the medical evidence. The respondent had advanced no Article 3 claim, and the tribunal had neither found the relevant facts about his condition nor grappled with the stringent threshold, drawn from NA (Pakistan), that governs reliance on disparities in available treatment. On the section 117B considerations, the tribunal had overlooked that the respondent was not financially independent and had wrongly attributed weight to a private life built while his status was precarious and, from October 2015, unlawful.

The Upper Tribunal compounded these errors by reading the section 117B factors as favouring the respondent and by declining to engage with the individual grounds while dismissing the appeal. The reassessment on remittal will require the facts to be found afresh and measured against the statutory test.