Objective Evaluation Required for Relocation Fears in s.117C(6) Deportation Appeals: Subjective Fear is Relevant but Not Determinative
1) Introduction
This appeal concerned the deportation of AB, an Indian national who arrived in the UK as a child and later formed a family with a British partner (CD) and British child (EF). AB was convicted of serious offending, including two robberies in “broad daylight” targeting vulnerable victims, and received a sentence of 62 months’ imprisonment. As a “foreign criminal” sentenced to at least four years, his case fell within the heightened statutory regime in Part 5A of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), particularly s.117C(6).
The Upper Tribunal (UT) dismissed AB’s protection appeal and Article 3 claim but allowed his appeal on Article 8 grounds, holding that there were “very compelling circumstances” under s.117C(6). Central to the UT’s reasoning was its acceptance that CD had a subjective fear of relocating to India and would not take that risk, so the family could not continue together abroad.
The Secretary of State appealed, arguing the UT had treated subjective fear as effectively determinative without conducting an objective evaluation of whether relocation was feasible and what the realistic consequences would be—an error said to infect both the “unduly harsh” assessment (s.117C(5)) and the “very compelling circumstances” assessment (s.117C(6)).
2) Summary of the Judgment
The Court of Appeal allowed the Secretary of State’s appeal, set aside the UT’s Article 8 decision, and ordered a rehearing before a differently constituted UT.
- Key holding: In deportation proportionality assessments under s.117C(5) and s.117C(6), the tribunal must make an objective evaluative judgment about relocation; it is an error of law to treat a partner’s subjective fear of relocation as sufficient, without undertaking the tribunal’s own broader assessment of the circumstances.
- Subjective fear is not irrelevant: The Court rejected the argument that subjective fear is immaterial; it can be a relevant factor but cannot substitute for the objective evaluative exercise.
- “Normative assessment”/comparator: The Court rejected submissions suggesting a comparative “normative” baseline, aligning with the Supreme Court’s rejection of the “notional comparator” approach in HA (Iraq) v Secretary of State for the Home Department [2022] 1 WLR 3784.
- Remittal: Because the necessary objective evaluation had not occurred, and because key evidence (including medical evidence and oral testimony) was not before the Court, it was not appropriate for the Court to substitute its own proportionality decision.
3) Analysis
A. Precedents Cited
1. HA (Iraq) v Secretary of State for the Home Department [2022] 1 WLR 3784
The UT had directed itself by reference to HA (Iraq), and the Court of Appeal relied on it for two central propositions:
- Fact-finding deference: Appellate caution in interfering with specialist tribunal evaluations (cited at [72] of HA (Iraq) in submissions).
- Nature of “unduly harsh”: Approval of the elevated standard described in MK v Secretary of State for the Home Department [2015] INLR 563 (via KO (Nigeria) v Secretary of State for the Home Department (Equality and Human Rights Commission intervening) [2018] 1 WLR 5273): “severe, or bleak”, and “unduly” raises the bar further.
- Rejection of a comparator baseline: The Court used HA (Iraq) to rebut the Secretary of State’s “normative assessment” framing: the Supreme Court rejected the “notional comparator” method said to flow from KO (Nigeria).
This mattered because the Secretary of State’s argument risked reframing proportionality into a quasi-comparative exercise; the Court reiterated that the correct task is a case-specific evaluation of the circumstances and impact, not a comparison to an abstract “norm”.
2. Yalcin v Secretary of State for the Home Department [2024] 1 WLR 1626 and NA (Pakistan) v Secretary of State for the Home Department [2017] 1 WLR 207
These authorities structure s.117C(6) analysis. Yalcin (drawing on NA (Pakistan)) explains “over and above” the Exceptions: the claimant must show “something more” than a “bare case” within Exception 1 or 2—either:
- an Exception-related factor to a degree “well beyond” what is needed to meet the Exception; and/or
- Exception-related factors complemented by other factors to reach the higher threshold.
While the Court did not finally decide whether AB could meet s.117C(6), it emphasised that the UT’s “something more” analysis was undermined because a critical foundation—whether the family could realistically live together in India—had not been evaluated objectively.
This was the decisive authority on the subjective/objective question. In Lal, the Court of Appeal held that a test requiring stringent obstacles (there, “insurmountable obstacles”) cannot be satisfied merely because a person perceives relocation as impossible and would be deterred by it; otherwise the test becomes subjective and its intended stringency is diluted.
Applying that reasoning here, the Court held that in s.117C proportionality:
- the tribunal must consider personal characteristics and circumstances (“practical and realistic sense”),
- but cannot treat subjective fear alone as establishing inability to relocate; it must undertake its own assessment.
4. NC v Secretary of State for the Home Department [2023] EWCA Civ 1379
NC clarifies that subjective fear can be part of an evaluative judgment (there, “very significant obstacles”), but the ultimate test is not subjective: the decision-maker must consider objective evidence and the likely reality on return, including mitigation and support.
The Court used NC to draw a careful line:
- Rejecting immateriality: Subjective fear is not irrelevant.
- Rejecting determinativeness: It cannot be assumed to impede integration/relocation to the required degree without analysis of what would actually happen and what could mitigate it.
5. Other authorities shaping the framework
B. Legal Reasoning
1. The statutory architecture: s.117C(5) and s.117C(6)
Because AB was sentenced to at least four years, the governing test was s.117C(6): deportation is required unless there are “very compelling circumstances, over and above” Exceptions 1 and 2. Even if Exception 2 (“unduly harsh”) is met, that is “not enough” for a 4+ year offender; the tribunal must still conduct a full proportionality assessment and identify “something more”.
2. The Court’s central criticism: the UT’s handling of relocation
The UT accepted CD’s evidence that she would be “unable” to relocate and emphasised that she had a subjective fear of being targeted in India and “is not prepared to take” that risk. The Court of Appeal interpreted “unable” as meaning “unwilling” (not physically or legally unable) and accepted the UT was entitled to find CD would not go.
However, the Court held that this was insufficient for the legal tests being applied. The tribunal had to:
- evaluate objectively the nature of the alleged risk and relocation difficulties (while taking personal characteristics into account);
- consider “other, objective, matters” bearing on feasibility and consequences (including mitigation); and
- form its own view rather than simply adopting the witness’s perception.
In the Court’s view, the UT did not do that. Its conclusion that the family could not live together in India rested “simply” on accepting subjective fear, which amounted to a material error of law.
3. The Court’s careful qualification: subjective fear remains relevant
Although the UT erred by treating subjective fear as effectively dispositive, the Court rejected the Secretary of State’s more extreme proposition that subjective fear is immaterial. Drawing on NC v Secretary of State for the Home Department [2023] EWCA Civ 1379, subjective fear can be part of a “broad evaluative judgment”—but must be tested against the likely reality and weighed alongside objective evidence.
4. Why the Court remitted rather than substituting its own decision
The Court declined to decide perversity grounds or to dismiss AB’s appeal outright, primarily because:
- the required objective evaluation had not been conducted below;
- the Court lacked key documentary evidence (including detail of CD’s “significant and enduring mental health problems” and other reports);
- the UT’s findings were informed by oral testimony (including that CD was an “honest and credible witness”), which the appellate court could not replicate.
A fresh UT hearing was required to make findings and then conduct the “full proportionality assessment” demanded by s.117C(6).
C. Impact
- Clarifies relocation-fear reasoning in deportation cases: Tribunals must not shortcut the analysis by treating a partner’s refusal to relocate (based on subjective fear) as ending the inquiry. They must make an objective evaluative judgment about the feasibility and consequences of relocation, while still taking the person’s characteristics and fears into account.
- Reinforces the “objective-but-individualised” nature of Article 8 assessments: The decision harmonises s.117C analysis with the approach in Lal v Secretary of State for the Home Department [2020] 1 WLR 858 and NC v Secretary of State for the Home Department [2023] EWCA Civ 1379: subjective experience matters, but does not set the legal standard.
- Resists reintroduction of comparator thinking: By rejecting “normative assessment” language, the Court guards against the re-emergence (in new terminology) of the notional comparator approach rejected in HA (Iraq) v Secretary of State for the Home Department [2022] 1 WLR 3784.
- Procedural signal: Where the challenged issue hinges on oral evidence and missing expert material (e.g., mental health evidence), remittal will often be necessary; appellate courts will be slow to substitute their own proportionality evaluation.
4) Complex Concepts Simplified
Part 5A and s.117C (in plain terms)
- Part 5A of the 2002 Act tells courts/tribunals how to weigh the public interest when deciding Article 8 immigration cases.
- s.117C deals specifically with deportation of “foreign criminals”. The more serious the offence, the stronger the public interest in deportation.
- Exception 2 (s.117C(5)): if deportation would be “unduly harsh” for a qualifying partner/child, that can defeat deportation for less serious offenders—but not automatically for 4+ year sentences.
- s.117C(6): for 4+ year sentences, deportation still happens unless there are very compelling circumstances “over and above” Exceptions 1 and 2—i.e., an “especially strong” Article 8 case.
“Unduly harsh”
“Unduly harsh” is not the same as “hard” or “sad”. It means consequences that are severe or bleak, and “unduly” makes the threshold higher still. The assessment is intensely fact-specific and focuses on the actual partner/child affected.
“Very compelling circumstances” and “something more”
For serious offenders, even establishing undue harshness may be insufficient. The claimant must show “something more”: either the harshness is far beyond the usual level required to satisfy Exception 2, and/or other strong Article 8 factors combine with it to outweigh the very strong public interest in deportation.
Subjective vs objective (the core point of this case)
- Subjective: what a person genuinely fears or believes (e.g., “I am afraid to go”).
- Objective evaluative judgment: the tribunal’s own assessment of likely reality and consequences, using all the evidence (including country conditions, feasibility, protection, support, mitigation), not merely accepting the person’s perception as decisive.
This case confirms that subjective fear can be weighed, but cannot replace the tribunal’s objective evaluation when applying stringent statutory thresholds.
5) Conclusion
The Court of Appeal’s key contribution is to clarify that, in s.117C deportation appeals, a partner’s subjective fear of relocation is a relevant factor but cannot be treated as determinative without an objective evaluative assessment of feasibility and consequences. The Court also reaffirmed that proportionality under s.117C is not a “normative” or comparator-driven exercise, but a fact-sensitive evaluation grounded in the evidence. Because the UT’s reasoning on relocation lacked the required objectivity and the evidential record was incomplete at appellate level, the matter was remitted for a fresh UT rehearing and a properly structured full proportionality assessment under s.117C(5) and s.117C(6).