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Secretary of State for the Home Department v AB (Rev1)
Smart Summary
Factual and Procedural Background
This appeal concerns Company A's challenge to part of an Upper Tribunal (IAC) decision of 25 July 2024 by which the Upper Tribunal (Judge Mandalia and Judge Juss) allowed the appeal of Appellant from Company A's decision refusing Appellant's human rights claim. The statutory framework central to the appeal is Part 5A of the Nationality, Immigration and Asylum Act 2002, in particular s. 117C(6), which sets a high threshold of "very compelling circumstances" for foreign criminals sentenced to at least four years' imprisonment.
Appellant (an Indian national who entered the UK as a child) was convicted of robbery in January 2020 and sentenced to 62 months' imprisonment. Company A made a deportation decision in November 2020 and refused Appellant's protection and human rights claims in October 2021. Appellant appealed. The First-tier Tribunal (Judge Groom) allowed parts of Appellant's appeal on asylum and safety grounds in February 2023. Company A succeeded on appeal to the Upper Tribunal in October 2023, which remade the decision and directed a redetermination. On rehearing (25 July 2024) the Upper Tribunal allowed Appellant's Article 8 appeal in part, finding Exception 2 (unduly harsh) established and that there were "very compelling circumstances" under s. 117C(6). Company A appeals that part of the decision to the Court of Appeal.
Legal Issues Presented
- Whether, in applying s. 117C(6) of the 2002 Act, the Upper Tribunal erred in principle by treating the Partner's subjective fear of relocating to India as determinative or given unreasonable weight.
- Whether the Upper Tribunal's conclusion that the "very compelling circumstances" threshold in s. 117C(6) was met (because deportation would breach Article 8) was open to the tribunal or was perverse.
- Whether the Upper Tribunal's finding that the Partner was "unable" to relocate to India was perverse or unsupported by the reasons given.
- Whether the Upper Tribunal's conclusion that deportation would have an unduly harsh effect on the Partner and Child was perverse or unsupported by the reasons given.
Arguments of the Parties
Company A's Arguments (summarised)
- The Upper Tribunal wrongly relied on and gave excessive weight to the Partner's subjective fear of relocation; the tribunal should have undertaken an objective assessment of the risk and formed its own view.
- The Upper Tribunal's finding that the Partner was "unable" to relocate was not open on the evidence and was inadequately reasoned.
- The tribunal's overall conclusion that s. 117C(6) was satisfied and that deportation would be disproportionate was perverse and not supported by "very compelling" countervailing circumstances.
- If the appeal is allowed, the matter should either be dismissed or remitted to the Upper Tribunal for rehearing if further fact-finding is required.
Appellant's Arguments (summarised)
- No error of law: the Upper Tribunal properly applied the legal framework (including HA (Iraq) and Yalcin) and carried out a holistic evaluative assessment of the Article 8 case.
- The Upper Tribunal were entitled to find the Partner to be an honest, credible and compelling witness and to give weight to her subjective fear as one relevant characteristic among others (including the Partner's mental health, the ISW report on the Child's best interests, and the Partner and Child's lack of connection to India).
- The tribunal reasonably concluded that deportation would be unduly harsh and that there were additional factors amounting to "something more" such that s. 117C(6) was satisfied.
- If this court were to find error, the appropriate remedy is a remittal for rehearing before a fresh constitution of the Upper Tribunal.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Lal v Secretary of State for the Home Department [2020] 1 WLR 858 |
Limits of relying on a partner's merely subjective evidence about relocation; need to consider particular characteristics but undertake an objective assessment. |
The court relied on Lal to hold that the Upper Tribunal erred by effectively accepting the Partner's subjective fear without forming its own objective view of her ability to relocate. |
| HA (Iraq) v Secretary of State for the Home Department [2022] 1 WLR 3784 |
Confirmed that s.117C(6) requires a full proportionality assessment and emphasised caution in appellate review of specialist fact-finding. |
Court treated HA (Iraq) as setting the required approach to "very compelling circumstances" and as a reminder of appellate restraint; it directed that a full proportionality assessment is required on rehearing. |
| Rhuppiah v Secretary of State for the Home Department [2016] 1 WLR 4203 |
Referenced in HA (Iraq) as part of authorities on proportionality and assessment. |
Referred to as an authority relied on in HA (Iraq); used in the chain of precedent supporting the proper analytical approach. |
| Unuane v United Kingdom (2020) 72 EHRR 24 |
International authority cited in HA (Iraq) on relevant considerations in deportation/Article 8 cases. |
Referred to by the court as part of the authorities shaping the proportionality inquiry under s.117C. |
| Yalcin v Secretary of State for the Home Department [2024] 1 WLR 1626 |
Interpretation of "over and above" in s.117C(6) and explanation of the "higher threshold" / "something more" concept. |
The court relied on Yalcin's explanation of how Exception-related factors must be "well beyond" a bare case or be complemented by additional factors to satisfy s.117C(6). |
| NA (Pakistan) v Secretary of State for the Home Department [2017] 1 WLR 207 |
Expressions adopted regarding the degree and combination of factors required to meet a higher threshold. |
Quoted (via Yalcin) to explain the "something more" requirement for very compelling circumstances. |
| ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166 |
Principles concerning the best interests of the child in Article 8 assessments. |
The Upper Tribunal's analysis of the Child's best interests and weight to ISW evidence relied on ZH; the court noted this usage in reviewing the decision. |
| NC v Secretary of State for the Home Department [2023] EWCA Civ 1379 |
Confirms that subjective factors may be relevant but the ultimate assessment is a broad evaluative (objective) judgment; guidance on assessing subjective fear within an objective framework. |
The court applied NC to reinforce that subjective fear is admissible as part of the assessment but that the tribunal must form its own objective judgment — supporting the finding of error in the Upper Tribunal's approach. |
| MAB (USA) v Secretary of State for the Home Department [2015] UKUT 435 (IAC) |
Emphasis on focusing on the impact on the individual child or partner. |
Quoted (by reference in KO (Nigeria)) and relied on by Appellant's counsel to show that a tribunal may consider a person's own perception as a relevant characteristic. |
| KO (Nigeria) v Secretary of State for the Home Department (Equality and Human Rights Commission intervening) [2018] 1 WLR 5273 |
Discussion of "unduly harsh" and commentary on comparative or "notional comparator" approaches. |
The court considered KO (Nigeria) and the subsequent rejection of a "notional comparator" by the Supreme Court in HA (Iraq) when rejecting a normative/comparative approach proposed by Company A. |
| Hesham Ali v Secretary of State for the Home Department [2016] 1 WLR 4799 |
Describes that countervailing considerations must be "very compelling" to outweigh public interest in deportation. |
Cited to emphasise the high threshold in s.117C(6) and the need for strong countervailing factors. |
| MK v Secretary of State for the Home Department [2015] INLR 563 |
Guidance on "unduly harsh" as an elevated standard. |
Endorsed in HA (Iraq) and referenced in the court's description of the elevated nature of the "unduly harsh" test. |
| Akhtar v Secretary of State for the Home Department [2024] EWCA Civ 354 |
Authority for reading tribunal decisions as a whole and not expecting exhaustive lists of factors when considering "very compelling circumstances". |
Cited by Appellant's counsel and noted by the court when considering how the Upper Tribunal had treated factors holistically. |
| Kamara v SSHD [2016] 4 WLR 152 |
Supports that the decision-maker must reach a broad evaluative assessment. |
Referred to in NC and used to support the requirement for a broad evaluative judgment in assessing obstacles to reintegration / relocation. |
| Parveen v SSHD [2018] EWCA civ 932 |
Emphasises focus on obstacles to integration and their significance to the individual. |
Referred to in NC and invoked as part of the guidance on how to approach evaluative assessments. |
| Agyarko case [2017] 1WLR 823 |
Reference for the need to apply tests in a "practical and realistic sense" and to consider individual characteristics. |
Cited in Lal and referred to by this court as part of the authorities explaining how individual characteristics should be weighed within an objective assessment. |
Court's Reasoning and Analysis
The court framed the central analytic task as whether the Upper Tribunal had lawfully and sufficiently objectively assessed the effect of deportation on the Partner and Child under s.117C(5) and (6). It rejected Company A's submission that the tribunal should perform a separate "normative" or comparative assessment, noting that the Supreme Court in HA (Iraq) had rejected the "notional comparator" approach and that the proper exercise is an evaluative assessment of the particular facts.
The court applied authorities (notably Lal and NC) to explain that while a partner's subjective fear is a relevant characteristic and may form part of the assessment, the statutory tests are not purely subjective. The decision in Lal requires tribunals to form their own objective view and to assess cumulative effects; NC confirms that subjective fear may be relevant but the tribunal must reach a broad evaluative judgment and consider objective evidence and mitigation.
Applying these principles, the court concluded that the Upper Tribunal had materially erred: it accepted the Partner's subjective fear as dispositive of her inability or unwillingness to relocate, without undertaking the required objective analysis and without forming its own view on the Partner's ability to relocate. That error was material and could not be treated as immaterial. The court also emphasised practical constraints: key documents and transcripts of oral evidence heard below were not before the appellate court, and the tribunal's fact-finding on the Partner's credibility and the Partner's mental health (and their relevance to the Child's best interests) could not fairly be replicated on appeal.
Accordingly, the court set aside the Upper Tribunal's determinative analysis on s.117C(5) and s.117C(6) grounds and directed that the matter should be remitted for rehearing by a fresh constitution of the Upper Tribunal so that the required objective assessment and full proportionality analysis may be undertaken, with necessary fact-finding.
Holding and Implications
Core Ruling: Appeal allowed in part; the Upper Tribunal's decision on the Article 8 aspects (s.117C(5) and s.117C(6)) was set aside and the matter remitted for rehearing before a fresh Upper Tribunal constitution.
Implications: The immediate effect is that the Upper Tribunal's July 2024 findings that Exception 2 was made out and that there were "very compelling circumstances" are vacated insofar as they rested on an insufficiently objective assessment of the Partner's ability/unwillingness to relocate. The case must be reheard to allow proper fact-finding and a full proportionality assessment in accordance with the authorities cited. The court did not purport to lay down new precedent beyond applying existing authorities (Lal, HA (Iraq), NC, Yalcin, etc.); the decision's consequence is remedial (set aside and remitted), not to establish a novel legal rule.
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