Secretary of State for the Home Department v AB

Lord Justice Moylan:

1. The Secretary of State for the Home Department (“the SSHD”) appeals from that part of the decision of the Upper Tribunal (IAC) (Upper Tribunal Judge Mandalia and Deputy Upper Tribunal Judge Juss) (“the UT/the UT judges”) of 25 July 2024 by which it allowed the appeal of AB (an anonymity order has been made) from the SSHD’s decision refusing AB’s human rights claim.

2. This appeal concerns the application of Part 5A of the Nationality, Immigration and Asylum Act 2002 (“ the 2002 Act ”), in particular s. 117 C, in respect of a “foreign criminal” who has been sentenced to a term of imprisonment of at least four years. Section 117 C is headed: “Article 8 of the ECHR: public interest considerations” and provides: “(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.”

3. AB is a foreign criminal to whom s. 117 C(6) applies. The UT determined that there were “very compelling circumstances” within the meaning of that provision and, accordingly, allowed his appeal from the SSHD’s decision.

4. The SSHD advances four grounds of appeal: (1) When applying section 117 C(6) of the 2002 Act the UT erred in principle in its approach to the significance of, and/or gave unreasonable weight to, its finding that AB’s partner had a subjective fear of relocating to India. (2) The UT’s overall conclusion that the test in section 117 C(6) of the 2002 Act was met because there was an “especially strong case” that AB’s deportation would breach article 8 of the ECHR was not open to it. The Tribunal made a perverse decision in this respect. (3) The UT’s finding that AB’s partner was “unable” to relocate to India is perverse. On the basis of the reasons it gave, this conclusion was not open to it. (4) The UT’s conclusion that AB’s deportation would have an unduly harsh effect on his partner and child is perverse. On the basis of the reasons it gave, this conclusion was not open to it.

5. In her decision giving permission to appeal, Laing LJ identified as an important issue the correct approach in the assessment of proportionality to a subjective fear of relocation and referred to Lal v Secretary of State for the Home Department [2020] 1 WLR 858 (“ Lal ”) which had not been drawn to the attention of the UT.

6. The SSHD is represented by Mr Biggs and AB is represented by Mr Pipe, neither of whom appeared below. Factual Background

7. The background is, in summary, as follows. The history is not wholly clear but the following is taken from the documents provided for this appeal.

8. AB is an Indian national who was born in 1995. He appears first to have entered the UK in 2006 when he was aged 11. He left briefly for a period in 2007 before returning in March 2007. He has been living in the UK since then. His father is in prison in India for the murder of his mother and other close relatives.

9. AB married a UK national [CD] in 2018. At the date of the hearing below, they had one child [EF] who was born in October 2019 with another due in September 2024.

10. In June 2017, AB was convicted in the Magistrates’ Court of two counts of assault occasioning actual bodily harm. He was sentenced to 16 weeks imprisonment, suspended for 12 months.

11. In January 2020, AB was convicted of two counts of robbery in the Crown Court and was subsequently sentenced to 62 months’ imprisonment. I refer to the sentencing remarks below.

12. In October 2020, AB was convicted of driving without a licence and using a vehicle without insurance.

13. The sentencing remarks recorded the circumstances of the offences. Both offences were committed “in broad daylight” at bus stops. The first victim was a woman who was pushing a pram with her children. AB “snatched” her gold necklace from her neck causing her to fall to the ground and to sustain cuts and bruises. The second victim, a week later, was an elderly woman and AB again “pulled” her gold chain from her neck. The judge said that it was “plain” that AB had chosen “vulnerable, soft targets” and that this was “appalling”. He set out aggravating features which included that AB was under the influence of Class A drugs and the nature of the offences and that the “victims targeted were vulnerable women in the street in broad daylight”. Immigration History

14. AB first applied for leave to remain in April 2007. This was rejected as were a number of other applications until, in December 2016, he was granted limited leave to remain on the basis of his family and private life until June 2019.

15. On 7 June 2019 AB applied for leave to remain on the basis of his family and private life. Before this application was determined, AB was convicted of the offences referred to above.

16. On 9 November 2020, the SSHD made a deportation decision pursuant to the UK Borders Act 2007 . This was served on AB who was given 20 days to provide reasons why he should not be deported.

17. On 22 December 2020, the SSHD received an undated letter. This was initially taken as raising family life issues only but, on review, was also considered to include an asylum claim.

18. On 5 October 2021, the SSHD refused AB’s protection and human rights claims (which included his June 2019 application). The SSHD also certified under s. 72(9) (b) of the 2002 Act that the presumption, that AB was a danger to the community of the UK, applied.

19. AB appealed from the SSHD’s decision. Proceedings

20. AB’s appeal was determined on 13 February 2023 by the First-tier Tribunal (First-tier Tribunal Judge Groom) (“the FtT/the FtT judge”). The appeal was allowed. The FtT judge decided that AB had successfully rebutted the presumption under s. 72 of the 2002 Act that he was a danger to the community in the UK. This meant that it was open to the FtT judge to consider AB’s asylum claim and she went on to determine that AB had a well-founded fear of persecution on his return to India. In reaching this determination, the FtT judge relied significantly on the Government’s Country Policy and Information Note on India: Religious Minorities, May 2018 in respect of the treatment of Muslims. AB’s other claims were not determined.

21. The SSHD appealed to the UT and the FtT’s decision was set aside in a decision dated 26 October 2023. The UT decided that the FtT judge had been wrong to decide that AB had rebutted the presumption, as referred to above, and that her assessment of AB’s asylum claim was flawed in respect, in particular, of the “sweeping conclusion that the appellant’s Muslim faith gave rise to a real risk of persecution/harm”. It was directed that AB’s appeal would be redetermined by the UT.

22. As referred to above, the rehearing was determined by the UT in a decision issued on 25 July 2024 in which AB’s appeal was, in part, allowed. The UT Decision of July 2024

23. As set out in the UT’s decision, certain findings which had been made by the FtT were preserved. These included in respect of the circumstances of AB’s family life here (that he was married and had a child, both of whom are British citizens); that he had converted from Sikhism to the Islamic faith; and that he had been convicted of a particularly serious offence.

24. The UT’s decision addressed two issues which are not relevant to this appeal, namely whether AB had rebutted the presumption pursuant to s. 72 of the 2002 Act (that he was a danger to the community) and whether AB’s removal would be in breach of Article 3 of the ECHR. The UT decided: (a) that AB had not rebutted the presumption under s. 72 which meant that, pursuant to s. 72(10) of the 2002 Act , his appeal from the dismissal of his asylum claim had to be dismissed; and (b) that AB’s removal from the UK would not breach Article 3.

25. This left AB’s “Article 8 claim”.

26. The UT heard oral evidence from AB, CD and his sister-in-law. The UT clearly also had a number of documents most of which have not been included in the documents for this appeal. We have the report from an independent social worker (“ISW”) which addressed “the impact [EF] is likely to face should she be separated from” AB. We do not, however, have any of the witness statements, nor a report from a Consultant Psychiatrist (the precise extent of this is not apparent) nor an OASys (Offender Assessment System) assessment all of which are referred to in the UT’s decision. There may also have been other medical records for CD. The report from the ISW referred to CD having “significant and enduring mental health problems”. It may be that the report from the Consultant Psychiatrist addressed these issues but the parties were unable to assist as to its content. The ISW noted that if CD’s mental health was to deteriorate in the absence of AB, it was possible that EF’s needs would “at best [be] significantly compromised, or at worst, unmet” potentially leading to “catastrophic emotional consequences for EF” if she was taken into care.

27. The UT’s decision referred to CD’s circumstances. She is of Pakistani heritage and is also a national of Pakistan. She said that she had come under significant pressure from her family to marry a relative leading her to seek the assistance of the police on more than one occasion and ultimately leaving “the family home with a police escort”. Her family had strongly objected to her marrying AB and she experienced a “significant backlash”. Her evidence was that she remained estranged from her family apart from a sister. The decision also referred to her evidence that she and her child had been “threatened by AB’s uncle” leading to them moving to a different location.

28. CD said that “she would be unable to join AB in India because she was born in the UK and has lived here all her life.” She also said that “she has a [relative] who is a politician in Pakistan and that he has connections in India. She believes that is likely to put her and her daughter at risk and she fears she will be targeted in India”. The UT accepted this evidence.

29. The UT addressed the legal framework including part 5A of the 2002 Act and, in particular, the test in s. 117 C(6) as set out above. The decision quoted from Lord Hamblen’s judgment in HA (Iraq) v Secretary of State for the Home Department [2022] 1 WLR 3784 (“ HA (Iraq) ”), which referred to Sales LJ’s judgment in Rhuppiah v Secretary of State for the Home Department [2016] 1 WLR 4203 and to Unuane v United Kingdom (2020) 72 EHRR 24 (“ Unuane ”), and from Underhill LJ’s judgment in Yalcin v Secretary of State for the Home Department [2024] 1 WLR 1626 (“ Yalcin ”). The latter addressed the effect of the words “over and above” in s. 117 C(6) and, at [57] as quoted by the UT, Underhill LJ considered what this “higher threshold” meant, adopting expressions from Jackson LJ’s judgment in NA (Pakistan) v Secretary of State for the Home Department [2017] 1 WLR 207 . I deal with this further below.

30. In the section of the decision headed “Article 8”, the UT set out its analysis of the relevant factors. Some of the background details were repeated and the UT found that AB “has established a family life with his partner and daughter”. It was “uncontroversial that the decision to refuse [AB]’s human rights claim has consequences of such gravity as to engage the operation of Article 8”. The UT accepted that the interference was in accordance with the law and pursued a legitimate aim. The “central issue in this appeal is whether the decision to deport [AB] is proportionate to the legitimate aim”. The UT then set out again that “[a]pplying s. 117 C(6) of the 2002 Act , the public interest requires deportation unless there are very compelling circumstances over and above those described in Exceptions 1 and 2”. It was also noted that it was accepted on behalf of AB that he “has a high hurdle to cross”.

31. The decision separately considered Exception 1 ( s. 117 C(4)) and Exception 2 ( s. 117 C(5)).

32. It was recorded that AB had been living in England since he was 11 but that he had not been lawfully resident for “most of his life” ( s. 117 C(4)(a)).

33. The UT did not accept that “there would be very significant obstacles to [AB]’s integration into India” ( s. 117 C(4)(c)). It did not consider, as claimed by AB, that he “will face mistreatment because of his religion” if he returned to India. AB’s case was based on the accepted fact that he “has converted from following the Sikh faith to Islam”. The UT considered that there “is a sufficiency of protection available” in India and did “not accept that any extremist group in particular would have the motivation, interest, means or ability to locate” AB. In respect of integration, the UT decided that there “is no reason why [AB] cannot establish a life in India, even as a Muslim”. The UT concluded that, while AB “will naturally encounter some hardship in returning to India, we do not consider that hardship to approach the level of severity required by” s. 117 C(4)(c).

34. The UT then turned to Exception 2. AB was “in a genuine and subsisting relationship with a qualifying partner and … has a genuine and subsisting parental relationship with a qualifying child”. The UT judges were “particularly impressed with the evidence before us from [CD], who we found to be an honest and credible witness”. Both CD and EF “are British citizens who have no other connection to India”.

35. The UT then addressed CD’s position in respect of moving to India: “[32] … We accept the evidence of [CD] that she would be unable to join the appellant in India because she was born in the UK and has lived here all her life. We also accept her evidence that she has a maternal uncle who is a politician in Pakistan, and that he has connections to India. She believes that is likely to put her and her daughter at risk, and she fears she will be targeted in India. Although we accept, as Mr Bates [for the SSHD] submits, that that evidence came out for the first time during the course of [CD]’s oral evidence before us, it was entirely consistent with the evidence of [CD’s sister], when she too was asked entirely independently, whether their family have any political connections in Pakistan. Whether or not [CD]’s maternal uncle has any reach in India, it is clear that [CD] has a subjective fear that she and her daughter will be targeted in India. That is a risk she is not prepared to take.”

36. The UT next addressed: “whether the effect of the appellant’s deportation on his partner and child would be unduly harsh. The term ‘unduly harsh’ involves an appropriately elevated standard, and we must make an informed assessment of the effect of deportation on [CD] and [EF] and to make an evaluative judgment as to whether that elevated standard has been met on the facts and circumstances of this appeal”.

37. The effect of the evidence from the Independent Social Worker was summarised, as follows: “The report speaks of the appellant’s relationship with [EF] and the particular family dynamics regarding the breakdown of the relationship between [CD] and her own family. We attach due weight to the opinions expressed by the ISW as to the best interests of [EF] in particular. It is said that the appellant has consistently maintained his relationship with [EF] and that the affection [EF] has for her father is reciprocated by him. It is said to be probable that [EF] will feel an acute sense of abandonment should her father's absence become long-term. The appellant is also said to present as a considerate partner to his wife who has significant and enduring mental health problems. Although the ISW does not wish to undermine [CD]’s parenting capacity, nor the love she has for [EF], it is said that should [CD]’s mental health deteriorate in the absence of the appellant, it is possible that [EF]’s needs will be at best, significantly compromised, or at worst, unmet. That may require protective action to safeguard [EF].”

38. After referring to the best interests of EF and to ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166 , the UT set out its conclusion in respect of Exception 2: “As we have said, we found the evidence of [CD] to be compelling, and we accept her evidence of the particular family dynamics, including the breakdown of [CD]’s relationship with her own family caused by her entirely understandable unwillingness to marry a relative as proposed by her parents, and instead to pursue and maintain a relationship with the appellant. We have taken into account the evidence before us regarding the health of [CD] and her subjective fear that she will be at risk in India, so that the family could not continue to live together in India. Looking at the evidence before us holistically and having considered all the evidence before us we find that in the particular circumstances that the appellant, [CD] and [EF] find themselves in, the particular family dynamics are such that the effect of the appellant’s deportation on his partner and child would be unduly harsh. We reach that decision having noted that 'unduly harsh' does not equate with uncomfortable, inconvenient, undesirable or merely difficult. 'Harsh' in this context, denotes something severe, or bleak.”

39. The UT, next, observed that this was “not enough” because of the additional requirements of s. 117 C(6). Its analysis was as follows: “[38] To that end, the appellant has on any view, had a difficult childhood following the death of his mother in 2004. His father was convicted of her murder, and the appellant arrived in the UK as a child himself. He has now lived in the UK for a period in excess of sixteen years. The appellant is a national of India, whereas [CD] and [EF] are British citizens who have no connection to India. There is an added dimension here concerning the appellant’s conversion from the Sikh faith to Islam and the impact that has upon the ability of the family to live together in India in light of the subjective fear held by [CD] as to the risk that she and [EF] would be exposed to. We are satisfied from the evidence that we have read that the appellant and [CD] have a close relationship. The evidence before us is that the appellant met [CD] in 2017 and their relationship developed. We accept the evidence of [CD] that she is from a strict conservative Muslim family and her family do not approve of her relationship with the appellant, not least because she was expected marry a family member who had been identified. [CD] has had to make her own sacrifices to pursue and maintain her relationship with the appellant. We accept [CD] fled her family home fearing she would be a victim of an ‘honour killing’. She has remained resolute in her commitment to her relationship with the appellant. We accept the evidence of [CD] that she will be unable to join the appellant in India. Therefore, if the appellant is deported, it is likely to lead to the breakup of the appellant’s relationship with [CD] and in consequence, the breakdown of the relationship between the appellant and [EF]. Both [CD] and [EF] have no connections to India, but the solidity of their social, and cultural ties lie in the United Kingdom. [39] In the end, standing back and looking at all the evidence before us holistically, we are satisfied that the particular family dynamics at play here, and the background, establishes a particularly strong Article 8 claim because of the combination of relevant factors that establish “something more” and that the high threshold required to outweigh the strong public interest in the deportation of the appellant is met. We find that in all the circumstances, the decision to deport the appellant is disproportionate and the [appeal] is allowed on Article 8 grounds.” Submissions

40. The main focus of the SSHD’s appeal was to challenge, under grounds 1 and 3, the UT’s conclusion that CD was “unable” to relocate to India and its reliance on her subjective fear which underpinned this conclusion. This, Mr Biggs submitted, undermined the UT’s whole analysis because the impact of AB’s deportation crucially depended on whether CD and EF could move to India as well. This required an objective assessment which, Mr Biggs submitted, the UT failed to undertake.

41. He submitted that, on the facts of the case, a finding that CD was unable to relocate was not open to the UT or was inadequately reasoned and that, in any event, the UT’s approach to this question was legally flawed. In simple terms, it wrongly treated the question as one which depended solely on CD’s “subjective fear” when it should have undertaken an objective evaluation. Mr Biggs submitted that the UT should have formed “its own view of the nature of the risk”.

42. The outer reach of Mr Biggs’ submissions on this issue was that the UT had determined that CD’s fears about returning to India were not objectively justified. When Yip LJ pointed out during the hearing that the UT’s reasoning (in particular, the penultimate sentence in paragraph 32 as quoted above) did not appear to support this, Mr Biggs submitted that this was an “implicit finding”. I say straight away that it is clear that the UT made no such determination either expressly or implicitly.

43. Before returning to Mr Biggs’ substantive submission, a theme of his submissions generally was that the tribunal was required to carry out a “normative assessment” or, as he put it in his Skeleton Argument, “a structured normative evaluation of the due level of harshness, and the overall proportionality, of AB’s deportation” (my emphasis). As explained below, I do not accept this submission in particular because I consider that it runs contrary to the rejection by the Supreme Court in HA (Iraq) of the proposed “notional comparator” test as advanced by the SSHD in that case.

44. As to his substantive case, namely that the UT should have, but did not, carry out an objective assessment of CD’s reasons for saying she would not relocate to India, Mr Biggs submitted that while, as set out in Lal , at [37], it was “relevant and necessary … to have regard to the particular characteristics and circumstances of the individual(s) concerned”, this did “not mean that a merely subjective fear of location should be given any or any substantial weight in the assessment of proportionality”. At its highest, he submitted that “a purely subjective fear of relocation is immaterial” to the “objective nature of” the assessment but that, alternatively, if it “could be a material factor … it should generally be given little weight”. Otherwise, this would “effectively collapse the objective assessment of proportionality into a subjective” one. In addition to Lal , he relied on NC v Secretary of State for the Home Department [2023] EWCA Civ 1379 (“ NC ”), both of which I deal with below.

45. In respect of grounds 2 and 4, Mr Biggs submitted that it was not properly open to the UT to conclude either that deportation would have an unduly harsh effect on CD and EF or that there were very compelling circumstances. The factors present in the case did not reach the “very elevated” threshold under s. 117 C(6).

46. At the outset of his Skeleton Argument, Mr Biggs submitted that, if the appeal was allowed, the matter should be remitted to the UT for a fresh hearing. During the course of the hearing before us, his “primary position” became that AB’s appeal from the SSHD’s decision should be dismissed (in particular if the appeal succeeded on grounds 2 and 4) but that, if we were in any doubt and, in particular, if further fact finding was required, we should remit the matter.

47. Mr Pipe submitted that the UT had made no error of law and reminded us of the approach which an appellate court should take when determining appeals from specialist fact finding tribunals. He pointed to what Lord Hamblen had said in HA (Iraq) , at [72], namely that: “It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal”.

48. He submitted that, as was accepted by Mr Biggs, the UT had carefully directed itself as to the legal framework including by reference to HA (Iraq) and Yalcin . The UT judges had been “particularly impressed with the evidence of” [CD] which they found “to be compelling”. They took into account a number of factors, including that CD and EF are British and have no connection to India; they accepted that CD had a subjective fear of being targeted in India and that that was a risk she was not prepared to take; they attached weight to the “opinions expressed by the ISW as to the best interests of [EF] in particular”; and they took into account “the evidence before us regarding the health of CD”, in particular her “significant and enduring mental health problems” which, if they deteriorated, could lead to EF’s needs being “at best, significantly compromised, or at worst, unmet”.

49. Mr Pipe submitted that the UT had been entitled to conclude that the effect of deportation on both CD and EF would be unduly harsh. The UT had further clearly understood that “something more” than this was required and correctly went on to undertake “a full proportionality assessment” when determining whether there were very compelling circumstances over and above the Exceptions. Mr Pipe submitted that the UT again considered “a constellation of factors”, carrying forward its findings in respect of Exception 2, which together supported its conclusion that there were very compelling circumstances in this case. He submitted that the UT’s decision must be viewed as a whole and relied on what Laing LJ had said in Akhtar v Secretary of State for the Home Department [2024] EWCA Civ 354 , at [73]: “I do not accept that the UT was required to list, when considering whether there were very compelling circumstances, all the factors it had taken into account when considering the Exceptions, still less that it was required to list only the factors which were potentially favourable to Mrs Akhtar. The UT had to make the decision about very compelling circumstances against the background of all of its findings about the Exceptions. I consider that it is clear from paragraph 92 of determination 3 that that is what the UT did. I also bear in mind that it is not for this court to make decision-making for the tribunals any more difficult or complicated than it already is, as Underhill LJ said in Yalcin .”

50. In addressing the issue of CD’s “subjective fear”, Mr Pipe relied on what had been said in MAB (USA) v Secretary of State for the Home Department [2015] UKUT 435 (IAC) , at [72], as quoted by Lord Carnwath in KO (Nigeria) v Secretary of State for the Home Department (Equality and Human Rights Commission intervening) [2018] 1 WLR 5273 (“ KO (Nigeria) ”), at [29], namely that “the focus is on the impact upon the individual child (or partner)”. He submitted that the UT had been required to consider “all of [CD]’s characteristics” which can include a subjective fear or a person’s “own perception”. It was, therefore, a material consideration that CD, who the UT found was a compelling witness, “had a subjective fear of going to India and would not take that risk”. This was a “real world” assessment as referred to by UT Judge Mandalia when refusing permission to appeal and was a material consideration in the proportionality assessment under s. 117 C(6).

51. Although it was a material consideration, Mr Pipe made clear that he was not submitting that the test is, therefore, a subjective one. It was, rather, that subjective factors were not excluded but were included within the broad evaluative exercise which extends to all aspects of the likely situation. He referred to what Lord Hamblen had said in HA (Iraq) , at [44], namely that “it is for the tribunal to make an informed assessment of the effect of the deportation on the qualifying child or partner” and also to what was said in Lal , at [37], and NC , at [25].

52. In respect of grounds 1 and 3, Mr Pipe submitted that the UT did not err in principle in taking CD’s subjective fear into account because, as referred to above, it was a material factor nor did it give it unreasonable weight, matters of weight in any event being for the fact finding tribunal. It was also not a perverse finding because the UT had been entitled to find that CD was unable, in the sense of “unwilling” (“a risk she is not prepared to take”), to relocate to India. Further, this factor was not treated as determinative but was considered “alongside a constellation of other factors”. The UT properly directed itself, conducted a careful fact-sensitive analysis and reached a decision which was sufficiently reasoned and was open to it.

53. As for grounds 2 and 4, Mr Pipe submitted that the UT “provided sustainable rational reasons for finding that Exception 2 was made out and then found that there were additional reasons over and above which meant that section 117 C(6) was satisfied”. Its decision in respect of both had to be read together and its conclusions were not perverse.

54. Finally, Mr Pipe submitted that, if the appeal was allowed, the matter should be remitted for rehearing. Legal Framework

55. I have set out above the relevant provisions of s. 117 of the 2002 Act .

56. It is not necessary to deal at any length with the general approach to the application of the “unduly harsh” test in s. 117 C(5) or of the “very compelling circumstances” test in s. 117 C(6). As referred to by the UT, these have been addressed in HA (Iraq) and Yalcin .

57. As to the former, in HA (Iraq) Lord Hamblen endorsed, at [41], what had been said in MK v Secretary of State for the Home Department [2015] INLR 563, at [46], which had been approved as authoritative guidance in KO (Nigeria) , at [27], namely: “… ‘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.” He then added, at [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”; and, at [58] “Given that the weight to be given to any relevant factor in the proportionality assessment will be a matter for the fact finding tribunal, no definitive statement can be made as to what amount of weight should or should not be given to any particular factor. It will necessarily depend on the facts and circumstances of the case.”

58. In respect of the latter ( s.117 C(6)), the “very compelling circumstances” test “requires a full proportionality assessment”: HA (Iraq) , at [5]. It is a high threshold such that, as it was described in Hesham Ali v Secretary of State for the Home Department [2016] 1 WLR 4799 , at [38], the “countervailing considerations must be very compelling in order to outweigh the general public interest in the deportation of” foreign criminals to whom this provision applies. This was also addressed in HA (Iraq) in which it was said, at [51], that “all the relevant circumstances will be considered and weighed against the very strong public interest in deportation”, the relevant factors including those referred to in Unuane . These included, as acknowledged by Mr Biggs: “the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled;” and “the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled.”

59. In Yalcin , Underhill LJ further considered the interplay between the Exceptions 1 and 2 and the requirement under s. 117 C(6) for the circumstances to be “over and above” those Exceptions. He quoted from Jackson LJ’s judgment in NA (Pakistan) v Secretary of State for the Home Department [2017] 1 WLR 207 first, from [29], (emphasis in original): “a foreign criminal is entitled to rely upon such matters, but he would need to be able to point to features of his case of a kind mentioned in Exceptions 1 and 2 . . . or features falling outside the circumstances described in those Exceptions [my italics] . . . which made his claim based on article 8 especially strong”; and then, from [30]: “In the case of a serious offender who could point to circumstances in his own case which could be said to correspond to the circumstances described in Exceptions 1 and 2, but where he could only just succeed in such an argument, it would not be possible to describe his situation as involving very compelling circumstances, over and above those described in Exceptions 1and 2. One might describe that as a bare case of the kind described in Exceptions 1 or 2. On the other hand, if he could point to factors identified in the descriptions of Exceptions 1and 2 of an especially compelling kind in support of an article 8 claim, going well beyond what would be necessary to make out a bare case of the kind described in Exceptions 1 and 2, they could in principle constitute ‘very compelling circumstances, over and above those described in Exceptions 1 and 2’, whether taken by themselves or in conjunction with other factors relevant to application of article 8 [my italics].”

60. He then summarised the position, at [57], as follows: “That higher threshold may be reached either because the circumstance in question is present to a degree which is “well beyond” what would be sufficient to establish a “bare case”, or - as shown by the phrases which I have italicised in paras 29 and 30 - because it is complemented by other relevant circumstances, or because of a combination of both. I will refer to those considerations, of whichever kind, as “something more”. To take a concrete example, if the Exception-related circumstance is the impact of the claimant’s deportation on a child (Exception 2) the something more will have to be either that the undue harshness would be of an elevated degree (“unduly unduly harsh”?) or that it was complemented by another factor or factors - perhaps very long residence in this country (even if Exception 1 is not satisfied) - to a sufficient extent to meet the higher threshold; or, as I have said, a combination of the two.”

61. In Lal , the court was considering whether there were “insurmountable obstacles to family life with [the applicant’s] partner continuing outside the UK” as provided by paragraph EX.1(b) of Appendix FM to the Immigration Rules. Paragraph EX.2 provided that: “For the purposes of paragraph EX.1.(b) “insurmountable obstacles” means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.”

62. The issue in that case, which is relevant to the present appeal, was whether the applicant’s husband was or was not able to relocate with the applicant to India because he had a particular sensitivity to heat. The decision of the FtT had been set aside by the Upper Tribunal on the basis that the FtT had been wrong simply to accept the applicant’s husband’s “subjective evidence” on this issue and should have undertaken an objective assessment. The Upper Tribunal determined that there were no insurmountable obstacles. There was then an appeal to the Court of Appeal, which allowed the applicant’s appeal.

63. The judgment of the court (Sir Terence Etherton MR, Asplin and Leggatt LJJ) addressed the subjective/objective issue, at [37]: “To apply the test in what Lord Reed JSC in the Agyarko case [2017] 1WLR 823, para 43 called “a practical and realistic sense”, it is relevant and necessary in addressing these questions to have regard to the particular characteristics and circumstances of the individual(s) concerned. Thus, in the present case where it was established by evidence to the satisfaction of the tribunal that the claimant’s partner is particularly sensitive to heat, it was relevant for the tribunal to take this fact into account in assessing the level of difficulty which Mr Wilmshurst would face and the degree of hardship that would be entailed if he were required to move to India to continue his relationship. We do not accept, however, that an obstacle to the claimant’s partner moving to India is shown to be insurmountable - in either of the ways contemplated by paragraph EX.2. - just by establishing that the individual concerned would perceive the difficulty as insurmountable and would in fact be deterred by it from relocating to India. The test cannot, in our view, reasonably be understood as subjective in that sense. To treat it as such would substantially dilute the intended stringency of the test and give an unfair and perverse advantage to a claimant whose partner is less resolute or committed to their relationship over one whose partner is ready to endure greater hardship to enable them to stay together.” Accordingly, as determined by the UT, the FtT should have undertaken a more detailed inquiry and an objective assessment for the purposes of determining whether EX.1(b) was established rather than simply relying on the applicant’s husband’s perception of the difficulty.

64. In addition, however, the UT judge had fallen into error because he had not undertaken an analysis of the cumulative impact of the relevant matters: “[45] It seems to us that, at this stage of his analysis, the Upper Tribunal judge went wrong in his approach by considering the matters relied on separately from each other without also assessing their cumulative impact. What the judge ought to have done was to identify all the significant difficulties which Mr Wilmshurst would face if required to move to India and to ask whether, taken together, they would entail very serious hardship for him. [46] Had the judge approached the issue in that way and considered in combination Mr Wilmshurst’s age, his proven sensitivity to heat, the fact that he has lived all his life in the UK, and his ties to friends and family including his four children and six grandchildren in the UK, we do not think that the answer to the question whether moving to India would entail very serious hardship for him is a foregone conclusion. [47] For this reason we have concluded that, in remaking the decision on the issue of insurmountable obstacles, the Upper Tribunal made an error of law in his assessment which we cannot say was immaterial.”

65. In NC , the court was considering the “very significant obstacles” test as then provided in paragraph 276ADE(1)(vi) of the Immigration Rules. The FtT had allowed the applicant’s appeal under Article 8 because she had a “genuine subjective fear” both that she would be in danger and that the authorities would not be willing to protect her if she returned to St Kitts such that “this would have a significant impact on [her] ability to conduct a normal life”. The Upper Tribunal had allowed the SSHD’s appeal, in part, because the FtT judge had failed “to ask herself the right question whether, objectively , there are very significant obstacles to reintegration” (my emphasis). The applicant appealed.

66. In her judgment (with which Snowden and Newey LJJ agreed), Whipple LJ referred to areas of “common ground”: “[16] On issues of law, there was much common ground between the parties. Both parties accepted that paragraph 276ADE(1)(vi) required the court or tribunal to reach a broad evaluative assessment of whether the appellant, if returned, would face very significant obstacles to integration. Both parties accepted that subjective factors – to do with the appellant’s own perception of risk and fear of harm – could form at least part of that assessment and that the appellant’s genuine fear of reprisal (as found at [42] of the First-tier Tribunal’s judgment) was relevant. Both parties accepted that objective evidence, by which they meant evidence of factors which were not subjective, such as evidence relating to the availability of state protection and the social and family connections of the appellant, were also relevant.”

67. After referring to a number of authorities including Lal , she summarised their effect: “[25] It is not in doubt, based on these authorities, that (i) the decision-maker (or tribunal on appeal) must reach a broad evaluative judgment on the paragraph 276ADE(1)(vi) question (see Kamara at [14]) [ Kamara v SSHD [2016] 4 WLR 152 ], (ii) that judgment must focus on the obstacles to integration and their significance to the appellant (see Parveen at [9]) [ Parveen v SSHD [2018] EWCA civ 932 ] and (iii) the test is not subjective, in the sense of being limited to the appellant’s own perception of the obstacles to reintegration, but extends to all aspects of the appellant’s likely situation on return including objective evidence, and requires consideration of any reasonable step that could be taken to avoid or mitigate the obstacles (see Lal at [36]-[37]).” I would just note, in passing, that the reference in Lal , at [36], to the need to consider whether there were “any steps which could reasonably be taken to avoid or mitigate the difficulty”, was derived from the wording of paragraph EX.2. However, it is clearly of broader application because a broader analysis would be relevant in any event, for example, to the issue of “unduly harsh”.

68. Whipple LJ’s summary makes clear that the person’s “own perception” is relevant although the ultimate test is an objective one in the sense that it is for the tribunal to “reach a broad evaluative judgment”. The relevance of the former is further emphasised in the next paragraph in the judgment: “[26] I would add this. The test posed by paragraph 276ADE(1)(vi) is a practical one. Regard must be had to the likely consequences of the obstacles to reintegration which are identified. In a case like this, where the only obstacle identified is the appellant’s genuine but unfounded fear, particular care must be taken to assess the ways in which and the extent to which that subjective fear will or might impede re-integration. It cannot simply be assumed that it will. The likely reality for the appellant on resuming her life in her home country must be considered, given her subjective fear, and the availability of support and any other mitigation must be weighed. It is against that background that the judgment on whether the obstacles to reintegration will be very significant must be reached.” Determination

69. I start with a theme of Mr Biggs’ submissions as referred to above, namely that the court has to undertake a “normative assessment”. I did not find this a particularly helpful suggestion and, indeed, on reflection think it might tend to mislead if, by it, Mr Biggs was submitting that the court’s assessment is a comparative exercise by reference to a “norm”.

70. This suggested approach would reflect a similar line of argument which was developed following an observation made by Lord Carnwath in KO (Nigeria) . Indeed, in support of this submission in respect of the word “unduly” in s. 117 C(5), Mr Biggs relied on what Lord Carnwath had said in KO (Nigeria) , at [21]-[23]. Of particular relevance is what Lord Carnwath said, at [23]: “On the other hand the expression “unduly harsh” seems clearly intended to introduce a higher hurdle than that of “reasonableness” under section 117 B(6), taking account of the public interest in the deportation of foreign criminals. Further the word “unduly” implies an element of comparison. It assumes that there is a “due” level of “harshness”, that is a level which may be acceptable or justifiable in the relevant context. “Unduly” implies something going beyond that level. The relevant context is that set by section 117 C(1), that is the public interest in the deportation of foreign criminals. One is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent .” (emphasis added) I have emphasised the last sentence because this was relied on in HA (Iraq) in support of a submission on behalf of the SSHD, at [23], “that Lord Carnwath was there stating that the unduly harsh test requires a comparison to be made with “the degree of harshness which would necessarily be involved for any child faced with the deportation of a parent” and that undue harshness means a degree of harshness which goes beyond that. It is this “notional comparator” which provides the baseline against which undue harshness is to be evaluated ” (my emphasis). The submission was supported by reference to a number of subsequent decisions, including in the Court of Appeal, which had adopted this line of reasoning.

71. The idea of a “notional comparator” was, however, rejected by the Supreme Court in HA (Iraq) . Lord Hamblen set out a number of reasons for doing so which included, at [31], that “far too much emphasis has been placed on a single sentence in Lord Carnwath’s judgment and that if his judgment is considered as a whole it is apparent that he was not intending to lay down a test involving the suggested notional comparator”; that, at [34], “a test based on what would necessarily be involved for “any child” cannot be read literally” because of the potential range of circumstances including one in which there would be “be little or no harshness involved” which would establish too low a baseline; that, at [36], “there is no satisfactory way to define what the relevant characteristics of a notional comparator child are to be or to make any such comparison workable”; and that, at [37], “a test involving a notional comparator child is potentially inconsistent with the duty to have regard to the “best interests” of the child in question as a primary consideration in accordance with section 55 of the Borders, Citizenship and Immigration Act 2009 ”.

72. In my view, the same points largely apply to the suggestion that there should be a normative assessment in the sense described above. The exercise in which the tribunal is engaged is not a comparative exercise but an evaluation of the circumstances of the particular case to determine whether the relevant issue – such as “unduly harsh” or “very compelling circumstances” – is established.

73. Turning then to the challenges to the UT’s decision as advanced in grounds 1 and 3. I can express my reasons for my decision in respect of these and the other grounds shortly.

74. It is clear, as Bean LJ observed during the hearing, that when the UT determined that CD was “unable” to relocate to India it did not mean that she was unable physically or legally to do so but was unwilling to do so; that she would not go. This was a finding which was clearly open to the UT.

75. However, the substantive challenge, as advanced by Mr Biggs, as again observed by Bean LJ, was that this was not sufficient. Mr Biggs submitted that it was not sufficient simply to rely on CD’s subjective perception when determining what the effect of AB’s deportation would be both for the purposes of s. 117 C(5) and s. 117 C(6). In my view, this was a well-made submission.

76. I consider that what was said in Lal , at [37], and in NC , at [25], apply equally to the approach to be taken when a tribunal or a court are undertaking the evaluation required under the above provisions. The test is not a subjective one and the court’s assessment of whether CD is able to relocate to India and the potential impact on her if she were to relocate cannot be based simply on her perception of these issues. As was said in Lal , to treat it this way “would substantially dilute the intended stringency of the test”. Or, to adapt what was said in NC , the court’s assessment is not limited to CD’s “own perception” of whether she can relocate to India but must consider other, objective, matters. As Mr Biggs submitted, the tribunal had to form its own view.

77. As referred to above, Mr Pipe accepted that the test was not a subjective one and submitted that the UT’s assessment had not been limited in the way suggested but had involved a broad, or holistic, assessment which was based on a constellation of factors. It is clear that the UT did, indeed, have regard to a range of factors. However, in my view, a key part of its assessment was, as referred to above, to accept that CD would not return to India because of her subjective fear. The UT did refer to other factors, such as that she had lived all her life in the UK and to the evidence “regarding [her] health”. However, even if there were other factors relevant to the issue, the decision, even read as a whole, does not support the conclusion that the UT carried out a sufficiently objective analysis of this issue. In my view, the UT did simply accept CD’s “subjective fear” or perception when concluding that she would be unable to relocate to India. It did not itself undertake any broader analysis of the circumstances and make an objective assessment of her ability to relocate to India. I recognise the force of Mr Pipe’s submissions but, adopting the way it was put in Lal , at [47], the UT made an error of law in an important aspect of its assessment which, in my view, cannot be said to be immaterial.

78. I do not, however, accept Mr Biggs’ submission that CD’s subjective fear would, in any event, be immaterial. That this is not so is clear from both Lal and NC . In NC , at [16], Whipple LJ clearly accepted the agreed “common ground”, namely that “subjective factors – to do with the appellant’s own perception of risk and fear of harm - could form at least part of [the] assessment”. This is confirmed by Whipple LJ’s comments, at [25], that the test is not “ limited to the appellant’s own perception” (my emphasis) and, at [26], that, “where the only obstacle identified is the appellant's genuine but unfounded fear, particular care must be taken to assess the ways in which and the extent to which that subjective fear will or might impede re-integration. It cannot simply be assumed that it will”. Other factors needed to be weighed for the purposes of determining whether the relevant threshold had been crossed but subjective factors are also relevant.

79. Accordingly, for the reasons summarised above, I consider that the UT’s decision was materially flawed and must be set aside.

80. In addition, however, I need to address grounds 2 and 4 for the purposes of deciding the outcome of this appeal. I can do so briefly.

81. As referred to above, the UT did not undertake the required evaluation in respect of CD’s ability to relocate to India. The UT judges did not form their own view on this issue but merely accepted the effect of CD’s subjective fear. This was a critical part of the analysis which has not yet occurred and this court is not in a position fairly and properly to undertake that analysis or, indeed, to undertake the overall analysis as required under s. 117 C(5) and s. 117 C(6).

82. This is significantly because we do not have most of the documents which were before the UT and because we are not in a position to assess the oral evidence which the UT heard. As to the former, just to give an example, we are not in a position to understand the nature and extent of CD’s “significant and enduring mental health problems”. Indeed, during the course of his oral submissions, Mr Biggs referred to the fact that there was “no clear exposition of what they are”. Clearly there will be further evidence about them in the documents which we do not have and possibly also from the oral evidence.

83. As to the latter, as noted by Mr Pipe, the UT judges were “particularly impressed by the evidence of” CD which they found “compelling”. We are, obviously, not in a position to hear oral evidence but we do not even have a transcript of the oral evidence below which would give us an understanding of its potential significance. As the issue on which the SSHD has succeeded on this appeal relates directly to CD’s position, I consider it would be wrong for AB’s appeal to be determined without the fact-finding tribunal hearing evidence from CD. This would, putting it bluntly, be unfair and contrary to the proper determination of that appeal.

84. I am not, therefore, persuaded by Mr Biggs’ submissions that we are in a position to determine that the UT’s conclusions in respect of s. 117 C(5) and s.117 C(6) are perverse in the sense that they would not be reasonably open to a tribunal on a rehearing. There needs to be a rehearing before a fresh constitution of the UT including to enable further fact finding and to enable, as set out in HA (Iraq ) at [5], the required “full proportionality assessment” to be undertaken which will include, as set out in Lal at [37], taking into account “the particular characteristics and circumstances of the individual(s) concerned”. Lady Justice Yip:

85. I agree. Lord Justice Bean (Vice-President, Court of Appeal, Civil Division):

86. I also agree.