Secretary of State for the Home Department v AB

In a deportation appeal by a foreign criminal sentenced to at least four years, the very compelling circumstances assessment under the Nationality, Immigration and Asylum Act 2002, section 117C(6), requires a full, case-specific proportionality assessment. A tribunal must evaluate objectively whether a partner and child could relocate, considering objective circumstances as well as genuine subjective fear. Subjective perception is relevant but cannot alone determine inability to relocate or the proportionality outcome. The assessment is not comparative and does not use a notional comparator or normative baseline. A material error in treating subjective fear as decisive required the decision to be set aside and remitted for rehearing.

AB, an Indian national who entered the United Kingdom aged 11, married CD, a British citizen, and had a British child, EF. He was sentenced to 62 months’ imprisonment for robbery and became subject to deportation. The First-tier Tribunal allowed his appeal, but the Upper Tribunal set that decision aside. On rehearing, the Upper Tribunal dismissed his asylum and Article 3 claims but allowed his Article 8 appeal, finding that Exception 2 and the very compelling circumstances test were satisfied.

The Secretary of State appealed, challenging the Upper Tribunal’s treatment of CD’s subjective fear of relocation to India, its finding that she was unable to relocate, and its conclusions on undue harshness and proportionality. The central issue was whether the Upper Tribunal had made a legally sufficient assessment of the likely effect of deportation.

1. Appeal allowed. The Upper Tribunal’s decision contained a material error of law and was set aside.
2. Under the Nationality, Immigration and Asylum Act 2002, section 117C(5), undue harshness is an appropriately elevated standard. Under section 117C(6), the tribunal must conduct a full proportionality assessment. The very compelling circumstances must be over and above those described in Exceptions 1 and 2. The higher threshold may arise from an exceptionally strong Exception-related factor, additional circumstances, or a combination. This approach was reflected in [2022] 1 WLR 3784 and [2024] 1 WLR 1626.
3. The assessment is not a comparative exercise against a notional child, partner or normative baseline. The rejection of the notional comparator approach in HA (Iraq) applied equally to the proposed normative assessment.
4. Lal and NC establish that subjective factors, including genuine fear, are relevant, but the ultimate assessment must be objective and evaluative. The tribunal must form its own view, consider the person’s characteristics and circumstances, assess objective evidence and available mitigation, and consider the cumulative effect of relevant factors.
5. The finding that CD was unable to relocate meant that she was unwilling to do so, and that finding was open to the Upper Tribunal. However, the Upper Tribunal effectively treated her subjective fear as determinative and did not undertake the required broader analysis. That error affected a critical part of the assessment.
6. The Court of Appeal could not fairly determine the remaining issues because important documents and the oral evidence heard below were unavailable. The matter was remitted to a freshly constituted Upper Tribunal for rehearing, further fact-finding and a full proportionality assessment. Lady Justice Yip and Lord Justice Bean agreed.

• Court of Appeal (Civil Division): On 6 March 2026, allowed the Secretary of State’s appeal, set aside the Upper Tribunal’s decision and remitted the matter for rehearing by a fresh constitution.
• Upper Tribunal (Immigration and Asylum Chamber): On 25 July 2024, partly allowed AB’s appeal, including on Article 8 grounds.
• First-tier Tribunal: On 13 February 2023, allowed AB’s appeal. The Upper Tribunal set that decision aside on 26 October 2023.