Secretary of State for the Home Department v Olufemi Adeniyi Ojaleye [2026] EWCA Civ 950

[2026] EWCA Civ 950

Case No CA-2025-001391

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE FIRST TIER TRIBUNAL

JUDGE BAFFA

HU 01262 2024

AND THE UPPER TRIBUNAL

UTJ RUDDOCK and DUTJ D CLARKE

UI-2024-005901

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 23 July 2026

Before

LORD JUSTICE MALES

LORD JUSTICE LEWIS

LORD JUSTICE JEREMY BAKER

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENTAppellant

OLUFEMI ADENIYI OJALEYERespondent

Mr Zane Malik KC (instructed by Government Legal Department) for Appellant

Miss Shivani Jegarajah and Miss Evin Atas (instructed by AZ Law) for Respondent

Hearing Hearing date: 14 July 2026

Approved Judgment

This judgment was handed down remotely at 1.00 pm on 23 July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

.............................

[1]This is an appeal by the Secretary of State for the Home Department (“SSHD”) against the decision of the Upper Tribunal (“UT”) to dismiss the SSHD’s appeal against a decision of the First-tier Tribunal (“FTT”) which had allowed Olufemi Adeniyi Ojaleye’s appeal against the SSHD’s decision to deport him to Nigeria, on the basis that, pursuant to section 117C(6) of the Nationality, Immigration and Asylum Act 2002, there were very compelling circumstances over and above those described in Exceptions 1 and 2.

Factual background

[2]Mr Ojaleye is a 49-year-old Nigerian citizen, having been born in Nigeria on 4 December 1976. He was raised and educated in Nigeria where he attended the University of Lagos between 1996 – 2000.

[3]On 29 September 2002, when he was aged 25, he arrived in the UK with entry clearance as a visitor, his visa being valid until 30 September 2003. Between August 2003 – November 2005, Mr Ojaleye made a number of applications for leave to remain in the UK, which resulted in him being granted leave to remain until 13 September 2007.

[4]On 13 September 2007, Mr Ojaleye made a further application for leave to remain, but this was refused on 17 October 2007. Mr Ojaleye’s appeal against this refusal was dismissed on 4 February 2008, as was his application to appeal to the High Court on 26 February 2008, when he became an overstayer.

[5]On 7 September 2013, Mr Ojaleye was served with administrative removal papers as an overstayer. On 10 September 2013, he applied for leave to remain outside the rules which was refused on 10 October 2013.

[6]On 6 June 2014, Mr Ojaleye made an application for leave to remain in reliance on

Article 8 of the European Convention on Human Rights

(“ECHR”) relating to his private and family life, and he was granted leave to remain until 16 February 2017, which was subsequently extended until 12 May 2023.

[7]By this time, Mr Ojaleye had been in a relationship with Ms Ayotunde Alabi, with whom he had had two children, C1 who was born on 30 September 2007 (now aged 18) and C2 who was born on 29 September 2010 (now aged 15). However, this relationship had broken down, and he had commenced a relationship with Ms Sarah Nakabuye, with whom he had two more children, C3 who was born on 6 March 2013 (now aged 13) and C4 who was born on 25 February 2015 (now aged 11). It would appear that this relationship also broke down and Mr Ojaleye subsequently entered into a relationship with Ms Tamia James.

[8]On 11 May 2023, Mr Ojaleye made a further application for leave to remain, which was refused by the SSHD on 27 June 2024.

[9]In the meantime, on 23 May 2023, Mr Ojaleye had appeared in the Crown Court at St Albans where he pleaded guilty to an offence of conspiracy to defraud, in respect of which, on 24 November 2023, he was sentenced to a term of 7 years’ imprisonment.

[10]The offence involved Mr Ojaleye and others conspiring to make false applications for loans under the ‘Bounce Back Loan Scheme’, which had been introduced during the Covid pandemic to assist small to medium-sized businesses with government backed loans of between £2,000.00 – £50,000.00 (up to 25% of annual turnover) at a low fixed interest rate of 2.5%.

[11]In the course of his sentencing remarks, HHJ Kay KC, observed that, “Olufemi Ojaleye, you pleaded guilty on the 23rd of May to conspiracy to defraud. It’s a particularly contemptable fraud. In the period of 2020 to 2021 this country was suffering a great crisis because of the COVID epidemic and there was a good deal of panic; people were dying and people couldn’t make ends meet because there was no business activity and a lack of income. The government of this country introduced at some speed a system of loans to enable the self-employed and businesses to continue to operate and no doubt to pay the wages of those people who desperately needed money. It was a period in which the last thing on any decent person’s mind was how to defraud the government in relation to these Bounce Back loans. Of course, when I say, ‘the government’, the government of itself is not an entity which generates its own income, save from the taxpayer, so anybody who abused the trust placed in them by the government in relation to these loans was stealing money from everybody in this country, from every single taxpayer, and those who have committed this crime have of course in part caused the financial problems that the country suffers from….. You and a group of others……decided that this was really a marvellous opportunity to take money with very little effort. All that was needed for a Bounce Back loan was what appeared to be a business generating at least £200,000 or so of turnover in order that the maximum Bounce Back loan of £50,000 could be taken. There was little, if any, check on the documentation that was being presented so it was true that, if reasonably credible documents were put forward in support of an application, a bank would pay out the money…….the government guaranteed that these loans would be repaid - so, as I say, at a time when people were dying and there was desperation in the country, the conspiracy to milk money from the Bounce Back loan scheme is beneath contempt. The methodology was, as….I said, was reasonably straightforward. Your part in it, as I understand, was that you arranged for fraudulent tax documents and returns to be created.……you were…a key player in the conspiracy and… you had the knowledge and the means to obtain the fraudulent documentation to support the loans. There is ample evidence - overwhelming evidence - of your role……… The Crown’s case - and there’s no basis of plea - is that you were involved in 22 successful applications, generating £1,029,000 worth of proceeds. Some of those were in conspiracy with…. and others were on your own behalf. There were 30 unsuccessful applications in a region which would have – which would have produced in the region of £1.5 million of loans, so the total criminality is a little under two-and-a-half million pounds. The money was very rapidly dispersed over various accounts and it will be an enormous exercise, at great expense no doubt, depending on what – to the extent to which it is pursued, to try and locate and recover the monies. I turn then to your position. You are now 47 years of age. You have no previous convictions. I know something of your background. You are a Nigerian national; you are an intelligent man; you have qualifications. You came to this country…in 2000 (sic)...Graduated …..You’ve had various jobs. You were working as a professional service advisor at the relevant time, with Unisure, and this was undoubtedly greed that led you to committing these offences. The fact that it was easier to achieve your aim is no mitigation at all; in fact, it’s aggravating because the – the point of the Bounce Back loan was to help people in desperation and to keep the economy moving and created enormous debt for the country. You’re married. You have altogether four children, two of whom are classed as having high level autism. There are references which I have read about you. There are of course guidelines which apply….. It’s plain on the guidelines that you are high culpability. You clearly played a key or leading role where the offending is part of group activity. This is a sophisticated offence with significant planning. It’s fraudulent activity conducted over a sustained period of time. It’s difficult to say whether these are a large number of victims in this sense because everybody in the country is a victim, certainly if they pay taxes, but this is clearly various indications of high culpability. In terms of harm you’re in category 1. Category 1 is based on loss or intended loss or risk of loss of £500,000 or more, with a starting point based on £1 million, and – and the amount here involved is considerably in excess of £1 million. I am also invited to consider level of harm and possibly move outside the guidelines. The maximum sentence for this is 10 years’ imprisonment. What’s said is that the – the – the – the way that this particular scheme was abused, having regard to the purposes of that scheme, renders this high impact. Mr Bedloe is inviting me even to consider going outside the guideline. Category 1A has a starting point of seven years, with a range of five to eight years. There are no other particular aggravating factors and there are no mitigating factors save for what I’ve said that you are responsible for four children and two of whom are autistic. I have also considered obviously the authorities in Ali about prison conditions. This was an absolutely appalling abuse of a system set up to assist, in a time of panic and in a time of desperate need. It’s a matter correctly of concern that people abused that Bounce Back loan scheme and I take Mr Bedloe’s point about high impact; however, taking everything into account, I won’t go outside the category range but I will start, if this was a trial, at the very top of that range. Punishment and deterrence, it seems to me, are paramount in relation to this form of fraud. The question of credit for plea arises and it’s a slightly tricky one. At the time you pleaded guilty it seems to me you would have been – been entitled to 15 per cent credit. Although it was only two weeks before the trial, the trial would have been a lengthy and costly one and so you would have merited, it seems to me, 15 per cent. You have challenged or sought to vacate your plea of guilty on spurious grounds and, if anything, continued or attempted to continue your deceit. I did not accept your evidence and view you as a deceitful person but nevertheless, although your credit should be reduced, this was a limited hearing which took, well, probably about an hour or so. It was inconvenient, no doubt, for Mr Bedingfield, who had to attend, but it’s a far different scale to what would have been a trial, so I think your credit for plea should be reduced to 10 per cent. So, starting at the top end of the range of eight years, less 10 per cent, and giving you some benefit from the cases of Ali and so forth to reduce it further, I come to a sentence of seven years. That’s rounding it slightly down to reflect such mitigation as you have and prison conditions, although I think, having regard to the length of sentence, Ali really does not apply here.”

[12]The SSHD’s letter dated 27 June 2024, refusing Mr Ojaleye’s application for leave to remain set out the reasons for the decision as follows:

“19. Your deportation is conducive to the public good and in the public interest because you have been convicted of an offence for which you have been sentenced to a period of imprisonment of at least four years. Therefore, in accordance with paragraph 13.2.2 of the Immigration Rules, the public interest requires your deportation unless there are very compelling circumstances, over and above those described in the exceptions to deportation set out at paragraphs 13.2.3 and 13.2.4 of the Immigration Rules. 23. Given the gravity and nature of your offence, which you have committed, which is reflected in the sentencing judge’s comments and in the length of the sentence bestowed upon you, it is considered that your continued presence in the United Kingdom constitutes a danger to the community. You have been convicted of a crime which is believed to be sufficiently serious as to warrant your deportation. 29. You have claimed that you have 4 children in the United Kingdom…[C1],…[C2],….[C3], and [C4]…. You claim to have a genuine and subsisting relationship with all of the children. 30. The Home Office’s duty to safeguard the welfare of children as set out in section 55 of the Borders, Citizenship and Immigration Act 2009 has been taken into account and the best interests of your children have been a primary consideration in making this decision. However, the best interests of the child are not the only or paramount consideration, and must be balanced against other relevant factors, including the public interest in deporting foreign criminals, to determine whether your deportation is proportionate. Paragraphs 13.2.4(a) and 13.2.5 of the Immigration Rules take into account that a child’s best interests are capable of outweighing the public interest and set out in what circumstances that will be the case. 33. It is accepted that you have 2 children from a former relationship with Ms …Alabi, both of whom it is accepted were born in the United Kingdom and are British Citizens….It is also accepted…..that prior to your incarceration you appear to have had a genuine and subsisting relationship with [C1]…. and [C2]…. A genuine and subsisting relationship means more than a biological relationship and more than presence in a child’s life. It requires a significant and meaningful positive involvement in a child’s life with a significant degree of responsibility for the child’s welfare. 34. It is noted that within the e-mail from Ms….Alabi, she has stated that you have helped with school runs and have taken the children to social gatherings and also play groups. It is therefore accepted that you had significant involvement in the children’s lives and welfare. 35. However, notwithstanding this, you are no longer in a relationship with Ms Alabi, who is considered to be the children’s primary carer. Ms Alabi has evidently been able to care for both [C1] and [C2], both prior to your incarceration, when your relationship ended, prior to and following your incarceration, and has been providing/arranging child-care for your children, which it is considered could continue following your deportation. 37. It is therefore concluded when taking into consideration all of the aforementioned information, that it is within [C2] and [C1] best interests to remain in the United Kingdom with their mother. 40. It is not accepted that your relationship with [C2]….and [C1]…. is so compelling as to outweigh the public interest in your deportation. 44. It is also accepted….that ….prior to your incarceration you appear to have had a genuine and subsisting relationship with [C3] and [C4]. A genuine and subsisting relationship means more than a biological relationship and more than presence in a child’s life. It requires a significant and meaningful positive involvement in a child’s life with a significant degree of responsibility for the child’s welfare. 47. However, it is noted that contrary to your representatives claim, and the information contained within the Induction Interview referred to above, you no longer live with Ms Nakabuye nor [C3] and [C4], and that you do not appear to be in a relationship with Ms Nakabuye. 49. It is noted that both [C3]……..and [C4]……. have both been diagnosed with autism. Ms Nakabuye has stated in her letter of support that due to this diagnosis the children have challenging behaviour, and that Ms Nakabuye struggles to look after them on a daily basis because of their Autism, and that life will be very difficult to manage the children alone without your support. Ms Nakabuye has stated that she requires your support in the upbringing of your children as your absence from the country will have adverse effect on Ms Nakabuye and your children. 53. The education, and any additional educational assistance or care that they are receiving, due to their specific learning requirements, and their autism or indeed any ongoing support of any description, would continue following your deportation, and it is not accepted that this would change in any respect following your removal from the United Kingdom. 55. Whilst it is acknowledged that your deportation may well put added strain on Ms Nakabuye with regards to your children, all parents and guardians must make difficult choices about how to balance their working lives and their parental responsibilities. 58. It is therefore concluded when taking into consideration all of the aforementioned information, that it is within [C3]…… and [C4]….best interests to remain in the United Kingdom with their mother, Ms Nakabuye, their primary carer. 65. However, whilst this… is acknowledged, mere contact with someone in this manner does not constitute a genuine and subsisting relationship. You were not living with Ms Nakabuye nor having a relationship with her. Ms Nakabuye is not reliant upon you for her general every-day care, and has evidently cared for both herself, and the children for a significant period of time prior to your incarceration and following your incarceration. Whilst it is accepted that you have previously been granted limited leave to remain in the United Kingdom, due to your relationship with Ms Nakabuye, which was considered to be genuine and subsisting, it is evident that there has been a change in your personal circumstances since you were previously granted leave to remain in the United Kingdom on 13 November 2020. In light of this it is no longer accepted that you have a genuine and subsisting relationship with Ms Nakabuye. 71. It is not accepted that you have established that you had a genuine and subsisting relationship with Ms James prior to your incarceration. 73. It is not accepted that your relationship with Ms ….Alabi, …. Nakabuye or …. James is so compelling as to outweigh the public interest in your deportation. 82. You spent all of your childhood and a significant part of your adulthood in Nigeria, arriving in the United Kingdom when you were 26 years of age. You were educated in Nigeria, and by your own admission in the Induction Questionnaire you have claimed that you attended Lagos University from 1996 – 2000. You claim to have worked as a financial advisor whilst in the United Kingdom, and have, as evidenced by the number of certificates that you have submitted, evidently acquired numerous qualifications during your time in the United Kingdom. It is evident that you have transferable skills which you could utilise in order to obtain employment on your return to Nigeria. Whilst the standard of living may be lower than in the United Kingdom, it is not considered that the difference is enough to engage our obligations under the ECHR. 83. You have claimed that you do not have any relatives/friends in Nigeria. However, this is not accepted. It is noted on the application for Family/Private Life 10yr – LTR dated 11 May 2023, you stated that you last returned to Nigeria in 2004 for a holiday, and that when asked to confirm what family or friends that you had in the country where you were born and/or any other country whose nationality you hold, you replied “relatives”

. You do not hold any other nationality other than Nigeria, and it is therefore evident that you do in fact have relatives in Nigeria, who it is considered could provide you with initial support and assistance following your return to the country. It is therefore not accepted that your deportation would cause you so much hardship as to breach your Article 3 rights, as you have claimed. 85. Therefore, having considered the facts of your case, it is not accepted that there are very compelling circumstances which outweigh the public interest in your deportation.”

[13]Mr Ojaleye’s appeal to the FTT against the SSHD’s decision to refuse his application for leave to remain was allowed in a decision promulgated on 27 November 2024.

[14]Before turning to that decision, it may be helpful to set out the statutory framework and legal principles relevant to its decision.

Statutory framework

[15]Section 3(5) of the Immigration Act 1971 (“1971 Act”) provides that a person who is not a British citizen is liable to deportation from the UK if the SSHD deems his deportation to conducive to the public good.

[16]Section 33(4) of the UK Borders Act 2007 (“2007 Act”) provides that the deportation of a foreign criminal is conducive to the public good. A “foreign criminal” is defined by section 32 as including a person who is not a British citizen and has been convicted in the UK of a criminal offence in respect of which they have been sentenced to a period of imprisonment of at least 12 months.

[17]Section 33(5) of the 2007 Act provides that the SSHD must make a deportation order in respect of a foreign criminal, unless one of the exceptions in section 33 apply, which includes where the deportation would breach the person’s Convention rights, which are set out in Schedule 1 to the Human Rights Act 1988 (“1988 Act”), and includes the right to respect for private and family life under

Article 8 ECHR

, “Right to respect for private and family life 1 Everyone has the right to respect for his private and family life, his home and his correspondence. 2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

[18]Section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002 (“2002Act”), provides that a person may appeal to the FTT, where the SSHD has decided to refuse a human rights claim.

[19]Section 84(2) of the 2002 Act sets out that an appeal against the SSHD’s decision to refuse a human rights claim must be brought on the ground that the decision is unlawful under section 6 of the 1998 Act, which provides that it is unlawful for a public authority, including the SSHD, to act in a way which is incompatible with a Convention right.

[20]Under section 117A of the 2002 Act, where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person’s right to respect for private and family life under Article 8, and as a result would be unlawful under section 6 of the 1998 Act, in considering the public interest question, namely “…whether an interference with a person's right to respect for private and family life is justified under Article 8(2)”, the court or tribunal must in particular have regard, in all cases to the considerations listed in section 117B, and in cases concerning the deportation of foreign criminals to the considerations listed in section 117C.

[21]The considerations in section 117B of the 2002 Act include that the maintenance of effective immigration controls, and the fact that a person is able to speak English and is financially independent, is in the public interest. Moreover, that little weight should be accorded to a private life or a relationship entered into when the person was in the UK unlawfully or when their immigration status was precarious.

[22]Section 117C of the 2002 Act, provides further considerations in cases concerning the deportation of foreign criminals, as follows, “(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.” (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.

Legal principles

[23]Section 117C of the 2002 Act and other relevant provisions, have been considered in a number of previous cases. In NA (Pakistan) v SSHD

[2017] 1 WLR 707

, (‘NA (Pakistan)’), this court described the operation of section 117C as follows, “36. In relation to a medium offender, first see whether he falls within Exception 1 or Exception 2. If he does, then the Article 8 claim succeeds. If he does not, then the next stage is to consider whether there are ‘sufficiently compelling circumstances over and above those described in Exceptions 1 and 2’. If there are, then the Article 8 claim succeeds. If there are not, then the Article 8 claim fails. As was the case under the 2012 rules (as explained in MF (Nigeria)), there is no room for a general Article 8 evaluation outside the 2014 rules, read with sections 117A-117D of the 2002 Act. 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). It will then be necessary to look to see whether any of the factors falling within Exceptions 1 and 2 are of such force, whether by themselves or taken in conjunction with any other relevant factors not covered by the circumstances described in Exceptions 1 and 2, as to satisfy the test in section 117C(6).”

[24]As to what is meant by the words “unduly harsh” in Exception 2, Lord Hamblen JSC, in HA (Iraq)v SSHD

[2022] UKSC 22

, (‘HA (Iraq)’), said between [41] – [44], “41. Having rejected the Secretary of State’s case on the unduly harsh test it is necessary to consider what is the appropriate way to interpret and apply the test. I consider that the best approach is to follow the guidance which was stated to be ‘authoritative’ in KO (Nigeria), namely the MK self-direction:

‘… ‘unduly harsh’ does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. ‘Harsh’ in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb ‘unduly’ raises an already elevated standard still higher.’ 42. This direction has been cited and applied in many tribunal decisions. It recognises that the level of harshness which is ‘acceptable’ or ‘justifiable’ in the context of the public interest in the deportation of foreign criminals involves an ‘elevated’ threshold or standard. It further recognises that ‘unduly’ raises that elevated standard ‘still higher’ - ie it involves a highly elevated threshold or standard. As Underhill LJ observed at para52, it is nevertheless not as high as that set by the ‘very compelling circumstances’ test in section 117C(6). 43. Whilst it may be said that the self-direction involves the use of synonyms rather than the statutory language, it is apparent that the statutory language has caused real difficulties for courts and tribunals, as borne out by the fact that this is the second case before this court relating to that language within four years. In these circumstances I consider that it is appropriate for the MK self-direction to be adopted and applied, in accordance with the approval given to it in KO (Nigeria) itself. 44. Having given that self-direction, and recognised that it involves an appropriately elevated standard, it is for the tribunal to make an informed assessment of the effect of deportation on the qualifying child or partner and to make an evaluative judgment as to whether that elevated standard has been met on the facts and circumstances of the case before it.” ‘… ‘unduly harsh’ does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. ‘Harsh’ in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb ‘unduly’ raises an already elevated standard still higher.’

[25]In relation to the phrase, “very compelling circumstances, over and above those described in Exceptions 1 and 2”, in section 117C(6), this was considered by Lord Hamblen at [51] and [52] of HA (Iraq), where he set out various factors identified in the case law of the European Court of Human Rights which may be of relevance.

[26]However, as Lewis LJ pointed out in SSHD v Lewis

[2026] EWCA Civ 879

, (‘Lewis’), at [23], “…..it is right to remember that the factors identified in the case law of the European Court of Human Rights have an important role to play. The factors may be relevant to things dealt with in the exceptions, such as whether deportation would be unduly harsh for a child, or in emphasising the great weight to be given to the public interest in deporting foreign criminals when considering whether there are very compelling circumstances: see paragraphs 37 and 38 of NA (Pakistan); and paragraph 51 of HA (Iraq) v Secretary of State for the Home Department

[2022] 1 WLR 3784

. Many of those factors (but not all) will be part of the consideration of whether deportation would be unduly harsh or whether there would be very significant obstacles to the reintegration of the foreign criminal in his country of origin. The legislature has determined the way in which certain factors are to be assessed, or the weight to be given to them, in the context of whether deportation of a foreign criminal is justified within the meaning of Article 8(2). That is permissible, as recognised by Lord Reed in the Supreme Court in Hesham Ali v Secretary of State for the Home Department

[2016] 1 WLR 4799

at paragraph 15 of his judgment, and by Lord Hamblen in HA (Iraq) at paragraph 52.”

[27]Moreover, at [18], Lewis LJ, explained the operation of section 117C of the 2002 Act as follows, “A foreign criminal sentenced to imprisonment for 4 years or more (generally referred to as a serious offender) cannot benefit from exceptions 1 and 2. If a serious offender relies on the kind of circumstances described in exceptions 1 and 2 (that is the impact on the foreign criminal, and the impact on his partner or child, respectively), the public interest will still require deportation of the serious offender even if he would have met the requirements of the exception had it applied. The public interest would still require deportation, for example, even if the serious offender has a genuine and subsisting relationship with a qualifying partner or child, and it would be unduly harsh on the partner or child to deport the foreign criminal (subject to the operation of section 117C(6) of the 2002 Act). In such cases, the public interest will require deportation of the serious offender unless there are ‘very compelling circumstances, over and above those described in Exceptions 1 and 2’. Such circumstances may outweigh the public interest in deportation (so that deportation would not be a justified interference with the right to respect for private or family life within the meaning of

Article 8(2) of the Convention

): see section 117C(6) of the 2002 Act.”

The FTT decision

[28]In the course of his judgment, at [18], the judge identified the issue which he was required to determine as being, “Whether there are very compelling circumstances over and above those described in exceptions 1 and 2, sufficient to outweigh the relevant public interest in the appellant’s deportation”

[29]Between [19] – [46], the judge set out the evidence upon which this issue fell to be decided which comprised both documentary evidence and oral evidence from Mr Ojaleye and other witnesses called on his behalf.

[30]In his evidence, Mr Ojaleye had described, “19…..how he takes the two younger children to school by car, swimming and he provides additional academic support particularly with regard to maths and English. He stated that their routine is very structured and if it is broken it has a negative impact. He further stated that he understands their needs particularly bearing in mind their autistic condition. He also described how, when they see him in prison they continually ask, ‘when are you coming home’. He stated that he also provides financial support. He wants to be a role model for them and teach them morals. The appellant also described how he has contact with the two older children. The appellant stated that he speaks to all four children where possible on a daily basis. ……23. The appellant accepted that since his imprisonment his two youngest children have been looked after by their mother, who still works as a housing officer. He did however state that Sarah is provided with support from friends. It was put to the appellant that Sarah is able to provide the necessary care, with the support of state provision and friends. The appellant stated that while she does receive support he needs to be there to provide additional support as Sarah struggles and it is having an impact on her. He described how the two children ‘stress her out on the train and bus’. He stated that he used to drive the children everywhere.

24. He was asked about the relationship between the mothers of the two sets of children. The appellant stated that they do not communicate but prior to his incarceration the two older children would come and stay with him and spend time with their siblings. He described himself as the ‘bond’, to the sibling relationship. ….. 26. The appellant was also asked about his offending. He was asked as to whether he is appealing either the conviction or sentence. The appellant hesitated and eventually, whilst stating that he made mistakes, he was not entertaining any appeal. The appellant took issue with the description of his offending, by the sentencing judge. He stated, ‘The main point is that I accepted that I was allowed to be involved’. It was put to him that he was not accepting full responsibility to which the appellant maintained his position that he made ‘mistakes’”.

[31]Ms Nakabuye confirmed that she was the mother of Mr Ojaleye’s two youngest children, and described that, “28….how it has been very hard since the arrest of the appellant and that she is drained both emotionally and financially. She stated that both children constantly ask as to when their father is coming home. She further stated that because of their learning difficulties it is hard for them to understand. She also described how at times she needs to go to work and that leaving the two children with persons they don't know triggers behaviour and they don't cooperate, and that she then has to put up with consequences and makes her daily life ‘hard’. She also stated that she is on antidepressants and the dosage has been doubled. ….. 30. She also confirmed that she does not have a relationship or contact with the mother of the appellant’s other two children. She does however have contact with the children. ….. 32.She accepted that there was no documentary evidence to support her assertion that antidepressants had been doubled. She also accepted that she currently works as a housing officer and that the state provides her with some support for the children. 33. She was asked about her relationship with the appellant prior to his imprisonment. She stated that they had been living together for some 7 to 8 years. She further stated that she knew that the appellant had two other children. She also accepted that she receives support from friends. She stated that she has no extended family and relies on friends whenever possible. She confirmed that she and her children have visited the appellant. She stated that she and the appellant are ‘working things out’. She further stated that if the appellant was required to return to Nigeria she would not stop her children from seeing the appellant, via video calls. ……”

[32]Sophia Ssegujja is a learning disability nurse who has a son with autism. She stated that she has known Ms Nakabuye for 15 years and that her children have special needs. She considered that the two children, “37….adore their father, and any return to Nigeria will have an impact primarily on the children but also as a consequence, Sarah. 38. Miss Ssegujja was cross examined. She stated that she was aware of Sarah’s separation with the appellant before his arrest, however he would attend to collect the children and would also visit. She confirmed that she has seen the appellant’s children, all four, together. She stated that if he goes to Nigeria the children’s (all four) relationship will not be the same.”

[33]Leira Habimana stated that, “39…..she has seen the appellant with his two youngest children and he clearly recognises their needs. She also stated that Sarah is ‘going through a lot’, the two children can sometimes be ‘too much’ and they do not get on with new people. She stated that she is aware of Sarah taking medication for her anxiety.40. Miss Habimana was cross examined. She stated she was aware of the appellant’s offending. She confirmed that she offers financial help when she can and spends time to support Sarah.

41. In re-examination she stated that she is close to Sarah and she sees Sarah go through ‘breakdowns’ when it gets difficult for her.”

[34]Although Ms Alabi, the mother of Mr Ojaleye’s two older children did not give evidence, she had provided an email dated 27 August 2024, in which she described Mr Ojaleye as a devoted father, and that, “The potential deportation of Mr. Ojaleye would have a significant emotional impact on both him and his children. Since his arrest, the children have not had the opportunity to see their step-siblings, and Mr. Ojaleye plays a crucial role in bringing the family together. His absence would create a substantial gap in their lives, affecting the overall family dynamic.”

[35]The judge also set out the contents of two letters with which he had been provided by staff from the Drumbeat School which the two youngest children attended.

[36]Briony Bowen wrote that, “All the children and young people attending Drumbeat have the highest level of autistic needs. Their attainment is significantly below age-related expectations and some children present challenging behaviour. Both [C3] and [C4’s] autism impacts on every aspect of his daily life, they need support with even the smallest of tasks such as dressing, eating, and toileting. Interacting with other people presents challenges, they need support to join in games at school and to develop his social skills generally. Structure and consistency to cope with daily routines is required at all times so that he can cope with everyday life….”

[37]Emily Thompson, the Head of School, wrote that, “... Given their diagnosis of ASD and the importance of stability in their lives, we believe that his deportation would likely have some adverse effects on their well-being and development, ultimately compromising their best interest…”

[38]The judge then set out HHJ Kay KC’s sentencing remarks relating to Mr Ojaleye’s offending. He also had regard to the pre-sentence report which included an OASys assessment which deemed Mr Ojaleye to present a low risk of reoffending.

[39]The judge set out a summary of the submission made by the parties, in which he noted that the SSHD accepted that Exceptions 1 and 2 had been met, with the caveat that there was no subsisting relationship with Ms Nakabuye.

[40]He noted that although the SSHD did not challenge the OASys assessment as to Mr Ojaleye’s low risk of re-offending, it was submitted that it was of relevance that Mr Ojaleye had sought to undermine HHJ Kay KC’s assessment as to his culpability for his offending.

[41]The Judge noted that the “key issue” identified by the SSHD as being required to be determined was the, “..impact of the appellant’s deportation on his two youngest children and whether the same amounts to very compelling circumstances.” In that regard the judge recorded that the SSHD, “….invited me to accept that the evidence shows that the appellant's two youngest children are being cared for and provided with the necessary support to take into account their special needs. He submitted that there was no evidence to suggest otherwise and no evidence to support very compelling circumstances. He acknowledged that the appellant asserts to be the glue that keeps the children together but he submitted that as the children get older they can meet, and without the need for the appellant to become involved. In any event it was submitted that the appellant could continue to communicate with not only his children but their respective mothers to assist in any sibling meetings.”

[42]Thereafter the judge set out the relevant legal framework and principles relating to his decision, before setting out his findings and conclusion between [72] – [78], “72. When considering matters I need to undertake a balancing approach and then determine whether there are very compelling circumstances that find the appellant’s deportation disproportionate. I remind myself that the burden is on the appellant. I also remind myself of what amounts to very compelling circumstances (the test). I also have regard to the strong public interest in the deportation of foreign criminals who commit serious crimes. I have very much in mind the proportionality assessment that I am required to undertake and have regard to the factors listed in para 68 above. I also have regard to S.55 Borders, Citizenship and Immigration Act 2009, and the need to consider the best interests of any child.73. I wish to deal with the respondent’s submission that the appellant is seeking to depart from the sentencing remarks. There is some force in that submission, however whilst it may be indicative of the lack of genuine remorse on the part of the appellant, or his lack of accepting culpability, it doesn't actually make a difference to the ultimate decision that I have to make. I am not required to make a determination as to his culpability and for the purposes of my assessment when dealing with the ultimate decision as to whether very compelling circumstances exist, I look at matters in the round to include the accepted ‘low risk’ of further offending. It is right to say that I was unimpressed with the appellant’s evidence in respect of his offending, but I accept his account as to his close bond with all four of his children, and particularly the care that he provides to both [C3] and [C4]. The bond and support is consistent with the oral evidence given, to include the unchallenged letter of support of Miss Alabi. The evidence given by all of those that gave oral evidence, is accepted by me. None of the witnesses sought to exaggerate or embellish the case of the appellant. As mentioned above nothing turns on the evidence of Mr Aire (although I accept his evidence).

74. I have no doubt that the deportation of the appellant will have a significant impact on both [C3] and [C4]. This is one of those cases where but for the particular difficulties of both [C3] and [C4], I would have no hesitation in dismissing the appeal. Whilst there would be an impact on [C1] and [C2], no evidence has been placed before me that would suggest there are very compelling circumstances in respect of them. This was in reality acknowledged by the appellant via his representative, Miss Anifowoshe.

75. The respondent conceded that exceptions 1 and 2 are met, but with a caveat in respect of the relationship with Miss Nakabuye. I am not required to making any finding in respect of the relationship between the appellant and Miss Nakabuye for me to find the test met in this case. I proceed on the basis the respondent, via Mr Marcantonio-Goodhall, accepted that the two exceptions were met in respect of the appellant’s children (all four). When I also take into account my findings in respect of the oral evidence given by the appellant’s witnesses, supplemented by my finding of the close bond and provision of support to [C3] and [C4], I am satisfied the test is met. Both [C3] and [C4] have marked learning difficulties and have been diagnosed with autism. They both attend a special school which caters for their particular needs. I have regard to the evidence given by their mother who described their bond with the appellant and how she has experienced difficulties with managing their behaviour and emotions, without the presence of the appellant. Miss Ssegujja, described the ‘heartbreaking’ emotions of [C3] and [C4] when they ask for their father. Miss Ssegujja spoke with particular force as she has children who have learning difficulties, and also works as a learning disability nurse. Further Miss Habimana described the ‘breakdowns’ experienced by Miss Nakabuye when management of the children gets tough for her. I have regard to the evidence given by Miss Nakabuye that she takes medication for mental health. I accept her evidence. I also accept the contents of the letters from Drumbeat School and ASD Service.

76. Both [C3] and [C4] attended court and made their way to the public gallery where they saw their father, the appellant. The sheer joy of seeing their father was real and touching. I politely asked them to leave (accompanied by their mother), after inviting them to wave goodbye to their father. It affected both them and their father. The emotion was real. The same is not evidence and I do not have regard to it when arriving at my decision, but I note the experience for completeness.

77. I am satisfied based on my findings that the test is met. The particular needs of [C3] and [C4] are such that they cannot be properly met by the appellant if deported to Nigeria. The appellant understands them and can properly manage their emotions and behaviour. This is evidenced by the witnesses that gave oral evidence. I accept their needs have to date been managed, whilst the appellant has been in custody, but the consequences of the appellant being away from them for in effect an indefinite period could be very damaging to them. This is not in their interests. Further I have regard to the ‘glue’ that is provided by the appellant in maintaining the relationship between the four siblings. I find that the respective children's mothers do not communicate and without the appellant the prospects of the four siblings meeting is very slim indeed. This is also not in the interests of any of the children but particularly [C3] and [C4]. The evidence given, and I accept, is that they all enjoy time together but it brings particular joy to [C3] and [C4]. Miss Nakabuye, whose evidence I have accepted, made it clear that in the event of the appellant’s deportation there was no prospect of the children being able to visit him in Nigeria. This would have an impact on the children. She candidly accepted that she could facilitate contact via video calls, but having regard to the difficulties of [C3] and [C4], it is simply unreasonable for this to be the form of contact between them and their father. It is not in their best interests. I also accept the impact that the children’s behaviour is having on Miss Nakabuye, to her mental health. There is no medical report however I have accepted the candid and measured evidence given by Miss Nakabuye and there is no reason for me to disbelieve her in her description of the difficulties she encounters, directly attributed to her children’s needs and behaviour. As also already mentioned, her difficulties and consequences is evidenced by the other witnesses. Miss Nakabuye made it clear that whatever may happen in respect of her relationship with the appellant, the children need the presence of their father. I accept that.

78. I wish to again make it clear that but for the best interests of [C3] and [C4], I would dismiss the appeal. There is a strong public interest in the deportation of foreign criminals who commit serious offending. However for reasons given above I am satisfied the test for very compelling circumstances is met in this case. The needs of [C3] and [C4] are such that the deportation of the appellant is more than unduly harsh and will create communication barriers and difficulties that goes beyond very significant obstacles. I would go as far as to say that the balance tips squarely in favour of the appellant despite his serious offending and the positive rehabilitation he has undertaken.”

SSHD’s appeal to the UTT

[43]The SSHD sought to challenge the decision of the FTT and made an application for permission to appeal dated 28 November 2024 which was based upon two grounds, which in summary were that, i. the FTT failed to give adequate reasons for findings on a material matter, in that whereas the judge found that the best interests of the two youngest children would be served by allowing Mr Ojaleye to remain in the UK and that his deportation would result in undue hardship to them, this was not determinative of the issue as to whether there were very compelling circumstances, over and above those described in Exceptions 1 and 2, and no such circumstances existed in this case, as there was insufficient evidence that Ms Nakabuye was unable to continue care for the two youngest children in his absence. ii. the FTT made a material misdirection in law, in that the judge failed to have regard to the very high threshold required to establish the existence of very compelling circumstances, over and above those described in Exceptions 1 and 2.

[44]Permission to appeal was granted on 16 December 2024 on the basis that, “2. The grounds argue that the Judge erred in the assessment of whether there were very compelling circumstances, the Appellant is currently in prison and had not lived with his children before then. The fact his remaining was in their best interests did not determine the outcome and there was no assessment of his role in their lives. 3. It is arguable that the Judge erred in the assessment of the circumstances overall having regard to the lack of direct involvement in his children’s daily lives and his imprisonment. 4. The grounds disclose arguable errors of law and permission to appeal is granted.”

The UT decision

[45]It is apparent from the written decision of the UTT dated 28 March 2025, that during the course of the hearing the tribunal expressed its view that the grounds of appeal had been mislabelled, in that the first ground appeared to be a rationality challenge, whilst the second ground was a perversity challenge. In the light of this it is recorded in the decision at [41] that Ms Gilmore, who was representing the SSHD, essentially conceded the first ground, and that in relation to the second ground, “Ultimately, she focused entirely on the submission that the FTT’s assessment had been “one sided”, because the FTT had failed to take into account the nature and seriousness of the appellant’s offence…”

[46]In that regard, the UT was referred to [73] of the FTT decision and the failure of the FTT to specifically mention the nature and seriousness of Mr Ojaleye’s offending in that paragraph.

[47]When the UTT queried with Ms Gilmore, “…the one phrase within this paragraph that we were not confident we understood. This was the comment that ‘I am not required to make a determination as to [the appellant’s] culpability”. It is recorded that Ms Gilmore had submitted, “…..that it was ultimately ‘fatal’ to the FTT’s decision that it was not clear what this meant, or what role culpability played in the overall assessment. Alternatively and in addition, the paragraph, taken as a whole, demonstrated that the assessment had been ‘one sided’. Either the FTT had not taken into account the nature and seriousness of the offence or it had not put sufficient weight on it.”

[48]Mr Alam, who appeared on behalf of Mr Ojaleye, submitted that this argument had not been foreshadowed in the grounds of appeal which had focused on the FTT’s assessment of the impact of Mr Ojaleye’s deportation on the children. Moreover, that the SSHD now appeared to be arguing that the FTT had failed to give sufficient weight to the seriousness of the offending, when the weight to be given to such factors was a matter for the FTT. In any event, it was clear that from other passages in the FTT decision that the judge had fully understood and accepted the seriousness of Mr Ojaleye’s offending.

[49]In relation to the phrase which the UTT had identified, the UTT stated at [37] that, “…Mr Alam accepted that it was not entirely clear what the FTTJ meant. This might mean that there was no requirement to determine culpability, because that had been a matter for the sentencing judge, whose remarks had been quoted at length. What was important was that the FTT had clearly had the sentencing remarks in mind. Moreover, insofar as the appellant might have tried to revisit his culpability in his oral evidence, the FTT had clearly rejected this, saying ‘I was unimpressed by the appellant’s evidence regarding his offending’. Ultimately, the FTT had, as it expressly stated, properly assessed the evidence ‘in the round’.”

[50]In the event the UTT proceeded to consider the two grounds of appeal, and rejected them.

[51]In relation to the first ground, the UTT was satisfied that the FTT had found that the impact of Mr Ojaleye’s deportation upon the two youngest children in particular went beyond being unduly harsh, and comprised compelling circumstances beyond those described in Exceptions 1 and 2. Moreover, that on the basis of the evidence which had been presented to the FTT which it had expressly accepted, the FTT was entitled to make such a finding.

[52]The UTT explained its reasons for reaching this conclusion between [54] – [57], “54……The respondent’s first specific complaint is a significant misrepresentation of the reasons the FTT gave for finding that the impact of the appellant’s removal on [C3] and [C4] would not only be unduly harsh (as accepted by the respondent) but would, taken together with the rest of the evidence, tip the balance in favour of the threshold of very compelling circumstances being met. 55.The FTT did not refer only to the appellant’s role in the children’s lives before he went to prison. Nor did the FTT confine its comments on that role to the three tasks listed in the respondent’s grounds (taking the children to school and to social gatherings and assisting with homework). The FTT set out in detail the oral evidence not only of the appellant, but also of [C3] and [C4’s] mother and of two other witnesses, one of whom is a learning disability nurse by profession. The FTT also referred to the evidence from the children’s school, and to a written statement from the mother of the appellant’s other two children. The FTT accepted the credibility of all of this evidence, and the respondent has made no challenge to that credibility finding. This evidence describes the appellant as playing a fundamentally important role in his children’s lives and in supporting [C3]and [C4’s] mother in her care for them, both practically and emotionally, and includes a discussion of his ongoing relationship with them.56. The suggestion that there was a ‘claim’ that the children’s mother was ‘finding life ‘hard’ without the appellant’ is also a significant mischaracterisation of the evidence. This was more than a ‘claim’. The FTT expressly accepted the evidence of the impact of the appellant’s imprisonment on [C3] and [C4’s] mother that was given by the mother and two other witnesses, all of whom were found credible. This evidence went far beyond a claim that the mother was finding life ‘hard’. The evidence the FTT heard and accepted included that she was ‘drained both emotionally and financially’, she was on anti-depressants and her dosage had been doubled [28], and she was suffering “breakdowns” [41].

57. As to the respondent’s comment that ‘this is no more than is to be expected when a parent is imprisoned’, in the first place it appears to be some form of ‘notional comparator’ test, such as was comprehensively rejected in HA (Iraq). Moreover, it ignores the considerable evidence about the difficulties of raising these two particular children, with their additional needs. In other words, even if it were permissible to apply a notional comparator test (which it is not), it is simply wrong on these facts to suggest that the difficulties this family faced ‘were no more than to be expected’ in the general run of cases.”

[53]In relation to what the UTT had described as the SSHD’s second ground, the UTT concluded that the FTT had not failed to sufficiently take into account the seriousness of Mr Ojaleye’s offending, such that there was no material error of law in its decision.

[54]The UTT explained its reasons for reaching this conclusion between [49] – [53] of its decision, “49. Applying these principles, we are not persuaded that the FTT failed to take into account the nature and seriousness of the appellant’s offending, as argued before us. At [47], the FTT included a lengthy excerpt from the sentencing judge’s remarks. This included multiple references to the seriousness of the offence. We do not find it necessary to set them out here, but we note that they included comments on the immorality of seeking to defraud a scheme set up during the COVID-19 pandemic, the amount of money stolen, the planning and sophistication involved, the length of time the scheme continued, and that the appellant had offended in spite of being the father of four children, two of whom had significant additional needs. The sentencing judge is quoted as having found that the appellant was of ‘high culpability’ and had played a ‘leading role’.50. The FTTJ then clearly had these remarks in mind when making its ultimate assessment. Paragraph [73] not only begins with a reference to the remarks, but later in the paragraph, the FTT returns to those remarks and specifically rejects the appellant’s oral evidence that sought to depart from them. In other words, the FTT knew that the sentencing judge considered the offence very serious, and had that in mind when reaching its conclusion in this appeal.

51. The prolonged discussion before us about what was meant by the phrase ‘I am not required to make a determination as to his culpability’ is an example of the danger identified by the Court of Appeal of subjecting FTT decisions to narrow textual analysis. We agree that the phrase is not entirely clear. It could mean that he FTT was not required to determine that issue, because that had been the role of the sentencing judge (whose specific findings in that regard the FTT had quoted above). It could mean that the FTT did not consider the degree of culpability to be determinative, because, as set out in the remainder of the sentence in question, matters had to be looked at in the round and other factors weighed more heavily, primarily the needs of [C3] and [C4].

52. It could also mean that the FTT considered culpability irrelevant, but without clear evidence either from the language used or from the FTT’s reasoning as a whole, we reject that interpretation. We do so because this would run directly counter to the principle cited above that it should be presumed that an FTTJ knows and is applying the relevant law. The nature and seriousness of the offence is repeatedly identified in the relevant statute and caselaw as a key element in the assessment of whether the requirements of Section 117C(6) are met. We know that the FTTJ was aware of the content of the statute and caselaw because it was quoted at length in the body of the decision. We cannot find on the basis of one unclear phrase that the FTT nonetheless ignored it.

53. Ultimately, we conclude that the respondent’s actual submission was that the FTT could not have come to the conclusion it did if it had put the necessary weight on the nature and seriousness of the appellant’s offending. As noted above, it is trite that weight is a matter for the judge, and that we cannot set aside the decision on the grounds that the FTT’s assessment was unbalanced, unless the ultimate conclusion was rationally unsupportable. Ms Gilmore expressly declined to pursue a rationality challenge before us, and we consider that she was right to do so.”

Submissions

[55]On behalf of the SSHD, Mr Zane Malik KC, advanced three grounds of appeal. i. Firstly, he submitted that the FTT erred in its approach to the public interest and the threshold in section 117C(6) of the 2002 Act in relation to foreign criminals who have been sentenced to four years or more imprisonment. Mr Malik submitted that the FTT was wrong at [72] of its judgment to suggest that there was any balancing approach required prior to considering whether there were very compelling circumstances over and above Exception 1 and 2. He also pointed out that the judge failed to mention that the very compelling circumstances must be over and above the two exceptions. He pointed out that when referring to the public interest in deporting such persons, the FTT at [72] and [78] described there being a “strong public interest in deportation”, whereas in HA (Iraq) at [51], reflecting what had been previously said in Hesham Ali v SSHD

[2016] UKSC 60

, the Supreme Court emphasised the importance of the public interest in deporting such persons, in terms of the “very strong public interest in deportation”. He submitted that this is not just a matter of semantics, rather one of substance, as there is a strong public interest in the deportation of any foreign criminal. He submitted that the lack of the adverb “very” reflects an error of approach, which resulted in the FTT underestimating the particular importance of deporting serious criminals when it considered the public interest question. ii. Secondly, the FTT erred in its approach to the nature and seriousness of Mr Ojaleye’s offending and arrived at a legally flawed conclusion. Mr Malik pointed out that at [73] the FTT referred to the fact that Mr Ojaleye had sought to downplay his role in the offending by departing from the judge’s sentencing remarks, and observed that, “….it doesn’t actually make any difference to the ultimate decision that I have to make. I am not required to make a determination as to his culpability…”. Mr Malik submitted that this reflects an error of approach, and pointed out that in HA (Iraq) the Supreme Court at [70] observed that when considering the seriousness of the offending, in addition to the sentence imposed, the nature of the offending may be of relevance. Mr Malik submitted that the FTT’s observation that it was not required to make a determination of Mr Ojaleye’s culpability for his offending disclosed an error of approach, and resulted in the FTT underestimating the particular seriousness of his offending, as reflected in the judge’s sentencing remarks. He also submitted that in accordance with what was said at [58] of HA (Iraq), the fact that Mr Ojaleye may have been assessed as presenting a low risk of reoffending, is of little or no relevance to the proportionality assessment. iii. Thirdly, the FTT erred in its approach to the welfare of children, and its reasoning was inadequate and/or perverse. Mr Malik submitted that when at [75] the judge refers to his conclusion that “the test” has been met, this is a reference to [72] which set out an erroneous approach to the issue of whether there were very compelling circumstances over and above Exceptions 1 and 2. Moreover, that the evidence which is set out in that paragraph was insufficient to warrant a finding that there were very compelling circumstances, over and above the two exceptions. He pointed out that at time of the hearing before the FTT, Mr Ojaleye was serving his sentence of imprisonment, and that the youngest children’s welfare had been able to be managed by their mother. He submitted that in these circumstances, without medical evidence as to the effect which Mr Ojaleye’s absence had had upon their mother’s ability to care for the youngest children, the judge was not justified in reaching a conclusion that she would not be able to cope with the children on her own. Moreover, he pointed out that the judge had not carried out an analysis as to the adequacy of the assistance which would be available to her in looking after the children. Mr Malik pointed out that at [77] the judge only described the damaging effect which Mr Ojaleye’s absence “could” have on the children, which he submitted is inadequate to establish very compelling circumstances over and above the two exceptions. Moreover, at [78] the references to the “best interests” of the two youngest children and the fact of deportation being “more than unduly harsh” are likewise insufficient to justify a conclusion that there were very compelling circumstances, over and above the two exceptions.

[56]On behalf of Mr Ojaleye, Ms Shivani Jegarajah, reminded us of the cautious approach which we should take when considering the adequacy of the reasoning set out by the FTT which is a specialist fact-finding tribunal familiar with the legal principles to be applied in such cases.

[57]She accepted that at various points in the FTT decision, the judge’s reasoning was wrong or could have been better expressed, but points out that the FTT at [18] set out the issue which it had been agreed by the parties was required to be determined, and that there was no sufficient reason to consider that this was not the approach which the FTT ultimately took in this case.

[58]Ms Jegarajah submitted that the judge was aware of the seriousness of Mr Ojaleye’s offending and that neither his observations as to Mr Ojaleye’s attitude to it, nor his reference to Mr Ojaleye’s risk of reoffending, were intended to suggest that the judge considered the offending any the less serious.

[59]Ms Jegarajah pointed out that the two youngest children had very severe autism, and submits that there was a wealth of evidence as to the particularly damaging effect of the absence of their father upon them. Moreover, that the judge on more than one occasion in the decision, made it clear that had it not been for this factor, he would not have found that there were very compelling circumstances over and above the two exceptions.

[60]In the event, Ms Jegarajah submitted that not only was there no error in the FTT’s approach to the issue which had to be determined, but that the evidence justified the conclusion that there were very compelling circumstances over and above the two exceptions.

Discussion

[61]The operation of section 117C of the 2002 Act should now be well understood, such that in the case of a foreign criminal who has been sentenced to a period of less than 4 years’ imprisonment, generally referred to as a medium offender, deportation will be in the public interest (and will be Article 8 compliant) unless either Exception 1 or 2 is made out.

[62]However, in the case of a foreign criminal who has been sentenced to period of 4 years’ imprisonment or more, generally referred to as a serious criminal, the public interest will require their deportation unless there are very compelling circumstances over and above those described in Exceptions 1 and 2.

[63]Therefore, in the case of a serious offender, even if they are able to satisfy one or both of the two exceptions, their deportation will still be required in the public interest, unless there are very compelling circumstances over and above those described in the two exceptions.

[64]As to the potential relevance of the seriousness of the offence, section 117C(2) makes it clear that the more serious the offence committed by the foreign criminal, the greater is the public interest in their deportation. The effect of this was explained by Lord Hamblen in HA (Iraq) at [60], where he said that, “60. The seriousness of the offence is a matter which the court is required to take into account when carrying out a proportionality assessment for the purposes of the very compelling circumstances test.”

[65]He went on to explain between [66] – [71] that although the surest guide to the seriousness of the offence will generally be the sentence imposed upon the criminal, “66 A sentence imposed by a court may well reflect various considerations other than the seriousness of the offence. Sentencing is approached in a structured way. In accordance with the Sentencing Council guidelines, in England and Wales the first step is to make an assessment of the seriousness of the offence having regard to culpability and harm. Often, there will be offence specific guidelines which assist in making that determination. Secondly, aggravating and mitigating factors will be considered and that may have the effect of either increasing or lowering the appropriate sentence. Some of those factors may relate to the seriousness of the offence but others may not. For example, an aggravating feature which will commonly impact on the level of sentence is a prior record of offending. Conversely, being of previous good character may well lead to a lower sentence. There may be aspects of personal mitigation, such as being sole carer for dependents, which will reduce sentence. These considerations relate to the offender rather than the seriousness of the offence itself. Thirdly, if there has been a guilty plea, then credit will be given against the provisional sentence arrived at. Where there is a plea at the first reasonable opportunity then a credit of one third will usually be given. That can have a significant impact on the sentence but it has nothing to do with the seriousness of the offence. As explained in the courts recent judgment in R v Maughan

[2022] 1 WLR 2820

, at para15, the rationale of reducing a sentence because of a plea relates to the administration of justice in that it avoids the need for a trial, it shortens the gap between charge and sentence, it saves considerable costs and, in the case of an early plea, it saves victims and witnesses from concern about having to give evidence. 67 In practice, however, an immigration tribunal may have no information about an offence other than the sentence. If so, that will be the surest guide to the seriousness of the offence. Even if it has the remarks of the sentencing judge, in general it would only be appropriate to depart from the sentence as the touchstone of seriousness if it is clear from those remarks that factors unrelated to the seriousness of the offence have influenced the sentence arrived at and how they have done so. In relation to credit for a guilty plea that will or should be clear. If so, then in principle I consider that that is a matter which can and should be taken into account in assessing the seriousness of the offence.”

[66]However, Lord Hamblen went onto say at [70] that in principle the nature of the offending may also be a relevant consideration, provided care is taken to avoid double counting, “….as this may have been taken into account in arriving at sentence….”.

[67]In the present case, the sentence imposed upon Mr Ojaleye was one of 7 years’ imprisonment. However, it is apparent from the clearly expressed sentencing remarks that this took into account a number of factors of personal mitigation, in addition to a reduction to reflect the timing of his plea of guilty, which reduced the sentence which the judge would otherwise have imposed upon Mr Ojaleye, namely one of at least 8 years’ imprisonment.

[68]On any view, both of these periods were significantly above the 4 year threshold which made Mr Ojaleye a serious criminal, such that although as a serious criminal the public interest required his deportation, unless there were very compelling circumstances over and above those described in Exceptions 1 and 2, this was a matter which was required to be taken into account when carrying out the proportionality assessment for the purposes of considering the very compelling circumstances test.

[69]In the course of his submissions in relation to his second ground of appeal, Mr Malik referred to the “abhorrent” nature of the offending which had been carried out by Mr Ojaleye. Of course, much criminal offending is abhorrent and it is not easy to compare, for example, an offence of violence with a serious fraud. That is why the length of the sentence, before adjustment for personal mitigation and where applicable credit for plea, is the surest yardstick by which to measure the seriousness of the offence. Whether or not the term “abhorrent” is apt, the offending here was certainly contemptible. However, this was a matter which was expressly acknowledged by the judge in his sentencing remarks, who proceeded to impose a sentence upon Mr Ojaleye based upon a figure which was beyond the category range for a 1A offence under the relevant offence specific guideline. In these circumstances, it is apparent that the seriousness of Mr Ojaleye’s offending was fully reflected in the sentence which was imposed upon him, such that there was no additional requirement for the FTT to consider the nature of the offence when considering the seriousness of Mr Ojaleye’s offending.

[70]It is in this context that it is necessary to consider the second ground of appeal and Mr Malik’s submission that the FTT at [73] appeared to underestimate the seriousness of Mr Ojaleye’s offending. Although the matter could have been better explained, I do not consider that when the judge said that he was “…not required to make a determination as to his culpability...”,he meant that Mr Ojaleye’s culpability for his offending was not of relevance, rather I consider that it was more likely that this was an acknowledgment that the seriousness of Mr Ojaleye’s offending was reflected in the sentence imposed upon him, such that he did not have to make any separate or additional assessment of it.

[71]In regard to the FTT’s refence to Mr Ojaleye having been assessed by OASys as being of low risk of reoffending, although it cannot be said, and Mr Malik does not go so far as to submit, that such an assessment is wholly irrelevant to the issue as to whether very compelling circumstances exist over and above those described in the two exceptions, in my view not only is the value of such an assessment open to question, but bearing in mind Lord Hamblen’s observations in HA (Iraq) at [58], it is likely to be of very limited relevance in the context of section 117C of the 2002 Act.

[72]In the present case, although the FTT referred to this assessment, it does not appear that the FTT gave it any significant weight, such that, as with the first aspect of the second ground of appeal, I do not consider that this second aspect succeeds.

[73]Before considering the other grounds of appeal, it is of assistance, as encouraged by Ms Jegarajah, to remind oneself of the principles applying to the consideration as to whether the FTT has made an error of law. In that regard, one can do little better than to refer to Mr Malik’s own summary of these principles, set out at [20] of Kapikanya, “(1) The FTT is a specialist fact-finding tribunal, and the UT should not rush to find an error of law in its decisions simply because it might have reached a different conclusion on the facts or expressed themselves differently, as the appeal is available only on a point of law: see AH (Sudan) v Secretary of State for the Home Department [2007] UK HL 49

[2008] 1 AC 678

, at [30]; (2) Where a relevant point is not expressly mentioned by the FTT, the UT should be slow to infer that it has not been taken into account: see MA (Somalia) v Secretary of State for the Home Department [2010 UKSC 49

[2011] 2 All ER 65

, at [45]; (3) When it comes to the reasons given by the FTT, the UT should exercise judicial restraint and should not assume that the FTT misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v First Tier Tribunal and Criminal Injuries Compensation Authority

[2013] UKSC 19

[2013] 2 All ER 625

, at [25]; (4) The issues that the FTT is deciding and the basis on which the FTT reaches its decision on those issues may be set out directly or by inference: see UT (Sri Lanka) v The Secretary of State for the Home Department

[2019] EWCA Civ 1095

, at [27], and (5) The judges sitting in the FTT are to be taken to be aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically, unless it is clear from their language that they have failed to do so: see A4 (Nigeria) v Secretary of State for the Home Department

[2020] EWCA Civ 1296

[2020] 4 WLR 145

, at [34]. (6) It is of the nature of proportionality assessment that different tribunals, without illegality or irrationality, may reach different conclusions on the same case and the mere fact that one tribunal has reached what may seem an unusually generous view of the facts of a particular case does not mean that it has made an error of law: see MM (Lebanon) v Secretary of State for the Home Department

[2017] UKSC 10

[2017] 1 WLR 1260

, at [107].”

[74]Furthermore, it is also material to bear in mind that, somewhat surprisingly, despite the fact that Mr Ojaleye had spent the first 25 years of his life in Nigeria, the chequered history of Mr Ojaleye’s relationships with Ms Alabi and Ms Nakabuye, and his sentence of imprisonment, the SSHD, through the Presenting Officer, had conceded before the FTT and the UT, that not only was Exception 1 met, but also Exception 2 was met, in that it was expressly acknowledged that Mr Ojaleye has a genuine and subsisting parental relationship with all four of his children, and that the effect of his deportation on those children would be unduly harsh.

[75]This was the context in which the FTT was required to consider whether, as it stated in terms at [18], there were any very compelling circumstances over and above those described in Exceptions 1 and 2.

[76]I have no doubt, as acknowledged by Ms Jegarajah, that some parts of the FTT decision could have been better expressed, and in particular the reference in [72] to a balancing approach being required before determining whether there were very compelling circumstances over and above those described in Exceptions 1 and 2, was wrong. Moreover, it is apparent that at that point of the decision, the judge merely referred to very compelling circumstances, and made no reference to those circumstances having to be over and above those described in Exceptions 1 and 2. The judge also referred to the strong public interest in deportation, rather than the “very strong public interest in deportation” as emphasised by the Supreme Court in Heshan Ali. Indeed, it would have been better to have used the statutory language which provides that the public interest requires the deportation of those sentenced to 4 years or more, save in the limited circumstances identified in section 117C(6).

[77]However, not only is it apparent from earlier parts of the decision that the judge had expressly referred at [68] to the “very strong public interest in deportation”, but it is clear from [18] that the judge was well aware what the correct issue was for his determination, namely “Whether there are very compelling circumstances over and above those described in exceptions 1 and 2, sufficient to outweigh the relevant public interest in the appellant’s deportation.” In those circumstances, I consider that it was this “test” to which the judge was referring at [72] and [75], and there is no issue but that this comprised a correct formulation of what was required to be determined by the FTT.

[78]It is also of relevance that, as the judge made clear on more than one occasion, had it not been for the particular difficulties surrounding the two youngest children, he would have had no hesitation in dismissing the appeal. Therefore, it is clear that he was focused upon the “key” issue in the case, which had been identified by those representing the SSHD, namely the impact of Mr Ojaleye’s deportation on his two youngest children and whether the same satisfied the very compelling circumstances test.

[79]In these circumstances, I do not consider that the SSHD has made out its first ground, namely that the FTT erred in its approach to the public interest and the threshold in section 116C(6) of the 2002 Act.

[80]As to the third ground of appeal, this is primarily focussed upon the sufficiency of the evidence to sustain the FTT’s finding that there were very compelling circumstances over and above those described in Exceptions 1 and 2, and as the judge made clear, this test would not have been satisfied had it not been for the evidence relating to the two youngest children, and in particular, their special needs.

[81]Although the FTT’s decision was ultimately summarised in [78] which again could have been better expressed, and included not only terminology which was relevant to Exception 1, rather than Exception 2, but a further erroneous reference to balancing factors, the judge, having described the evidence upon which this was based at an earlier part of the decision between [19] – [46], set out his findings and conclusions between [74] – [77], stating in terms that the test was met.

[82]In that regard, it was undoubtedly of concern that the two youngest children attend a school which caters exclusively for those with the highest level of autistic needs. Their attainment is not only significantly below age-related expectations, but their autism impacts on every aspect of their lives, requiring support with even the smallest of tasks such as dressing, eating and toileting. Moreover, not only was there evidence of a close bond between Mr Ojaleye and his children, but it was considered that he recognises the needs of his two youngest children. Although, Ms Nakabuye had been able to cope with her children whilst Mr Ojaleye was in prison, she was emotionally and financially drained, and is on antidepressant medication. Moreover, as the children are unfamiliar with those who currently assist with their care, they do not cooperate with them and this triggers their behaviour.

[83]Clearly the issue for the FTT was whether this was sufficient to amount to very compelling circumstances over and above those described in Exception 2, which already took into account the unduly harsh effect of Mr Ojaleye’s deportation upon the children. In this regard, whilst the FTT’s decision may not be one which every judge would have reached, and may be viewed as an “unusually generous view” of the evidence, I remind myself that this does not necessarily mean that the FTT has made an error of law.

[84]In these circumstances, although a more searching analysis of the extent of the care which Mr Ojaleye actually provided to the two youngest children prior to his prison sentence would have been apposite, together with a similar analysis of the extent of the care provided by others whilst he was in prison, given the very high level of the two youngest children’s autism, the emotional bond with their father, and the effect of his absence upon the children and their mother who is otherwise responsible for their care, I am not persuaded that the FTT’s decision in this case was perverse, rather it was within the ambit of reasonable decision making. Conclusion

[85]Accordingly, I would dismiss the appeal.

[86]I agree that the appeal should be dismissed. The proper approach to the determination of whether the deportation of a foreign national criminal is in the public interest was helpfully analysed by this Court in NA (Pakistan) v Secretary of State for the Home Department

[2017] 1 WLR 707

, the material parts of which were cited with approval in HA (Iraq), and summarised more recently in Secretary of State for the Home Department v Lewis

[2026] EWCA Civ 899

[87]The present appeal concerns a foreign national who has been convicted of offending in the United Kingdom that was so serious as to warrant a sentence of seven years’ imprisonment. As provided for by statute, the public interest requires deportation of a foreign criminal sentenced to four or more years’ imprisonment unless there are very compelling circumstances over and above those in exceptions 1 and 2, that is, circumstances over and above the effect on the applicant if removed to his country of origin or the impact on a partner or child, as described in those exceptions: see section 117C(6) of the 2002 Act. I do not consider a tribunal undertaking that exercise will be assisted by consideration of reports, such as OASys reports, intended to predict whether or not the foreign criminal poses a low risk of re-offending in future. A First-tier Tribunal, or the Upper Tribunal, can generally rely on the length of the sentence, supplemented by the remarks of the sentencing judge, to determine the seriousness of the offending. Such tribunals are not required, and are not equipped, to make predictions about the level of the risk of future offending and such predictions will not assist in carrying out the exercise required by section 117C(6). Subject to that observation, I agree with the judgment of Jeremy Baker LJ. I also agree with the judgment of Males LJ and his observations on the lessons to be learned from recent litigation in this field.

[88]I agree that this appeal should be dismissed on the straightforward basis that the First-tier Tribunal was – just – entitled to find that the very stringent test of ‘very compelling circumstances, over and above those described in Exceptions 1 and 2’ was satisfied on the facts of this case. Indeed, it was the Secretary of State’s own submission before the FTT that this was the ‘key issue in this case’.

[89]Those very compelling circumstances, in outline, were the exceptionally severe nature of the younger children’s autism, leaving them unable to cope with basic tasks; the disruptive nature of their behaviour when left with people they do not know; the understandable inability of the children’s mother to cope with the children on her own; and what was found to be the ‘almost daily’ support provided by Mr Ojaleye.

[90]I express some hesitation about this because, even before his imprisonment, Mr Ojaleye was not living with the children and their mother, but with another woman with whom he was in a relationship. There is therefore room for scepticism about the amount of time which he was devoting to the younger children, as well as seeing his two older children and pursuing his new relationship. Nevertheless, it was the FTT which heard the evidence and which was entitled to reach the conclusion that the test was satisfied.

[91]That said, there are lessons to be learned from this case.

[92]First, it was expressly conceded by the Secretary of State, through the Presenting Officer, that Exceptions 1 and 2 were satisfied. Thus, as to Exception 1, the Secretary of State conceded that Mr Ojaleye, a citizen of Nigeria who had spent the first 26 years of his life in Nigeria, would face ‘very significant obstacles’ to integration in that country. That seems on its face a surprising concession.

[93]As to Exception 2, which the Secretary of State conceded was satisfied in the case of all four children, the test to be applied was explained in KO (Nigeria) v Secretary of State for the Home Department

[2018] UKSC 53

[2018] 1 WLR 5273

, para 27 and reaffirmed in HA (Iraq) v Secretary of State for the Home Department

[2022] UKSC 22

[2022] 1 WLR 3784

, para 41:

‘ “unduly harsh” does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. “Harsh” in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb “unduly” raises an already elevated standard still higher.’

[94]As it was put in HA (Iraq), para 42, this is already a ‘highly elevated threshold or standard’. The ‘very compelling circumstances’ test in section 117C requires even more. If the factors relied on are of the same kind as those identified in Exceptions 1 and 2, they must be ‘of an exceptionally compelling kind ... going well beyond what would be necessary to make out a bare case of the kind described in Exceptions 1 and 2’ themselves (NA (Pakistan) v Secretary of State for the Home Department [2017] EWCA Civ662,

[2017] 1 WLR 207

, para 30, approved in HA (Iraq), para 50).

[95]The fact that there are so many appeals concerned with the application of section 117C suggests that the demanding nature of these tests is still not properly understood. In the case of Mr Ojaleye’s two older children, as distinct from the younger autistic children, there is nothing in the FTT judgment to explain why his deportation would be ‘unduly harsh’ and again the concession by the Presenting Officer that Exception 2 applied seems surprising.

[96]Sensible concessions in order to narrow the issues are much to be commended. But as has been said in other contexts, the hearing before the FTT is not a dress rehearsal and concessions made there will set the framework within which any further appeal will be conducted.

[97]Second, as Ms Jegarajah acknowledged on behalf of Mr Ojaleye, there are clear errors in the FTT decision. Thus it was wrong to say, in para 72, that it is necessary to undertake a balancing exercise before determining whether the very compelling circumstances test is satisfied. On the contrary, section 117C already strikes that balance, so that the only question in the case of a serious offender like Mr Ojaleye (i.e. one who has been sentenced to a period of imprisonment of at least four years) is whether there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

[98]It was equally wrong for the FTT to say, in para 78, ‘that the balance tips squarely in favour of the appellant despite his serious offending and the positive rehabilitation he has undertaken’ (emphasis added). Even leaving aside the fact that something has gone wrong with the grammar, there was no evidence of any positive rehabilitation (at the time of the FTT hearing, Mr Ojaleye was still in prison), apart from the fact that he had attended a few courses while in prison. But in any event, the fact that no further offences have been committed is of little or no weight and, even where there is some positive evidence of rehabilitation, that will only very rarely be of great weight (HA (Iraq), para 58).

[99]Ultimately, however, these errors do not affect the FTT’s conclusion on the ‘key issue’ in the case.