The Court of Appeal's 6 March 2026 judgment concerns deportation of foreign criminals sentenced to at least four years and how a partner's fear of relocating to India is weighed under section 117C(6).
[2026] EWCA Civ 230, Secretary of State for the Home Department v AB, was handed down by the Court of Appeal (Civil Division) on 6 March 2026. The hearing took place on 21 January 2026. Lord Justice Moylan gave the judgment, sitting with Lord Justice Bean and Lady Justice Yip. The appeal was from the Upper Tribunal (Immigration and Asylum Chamber).
The appeal. The Secretary of State appealed against the part of the Upper Tribunal's decision of 25 July 2024 that allowed AB's appeal against refusal of his human rights claim. AB is an Indian national, born in 1995, who has lived in the UK since 2007. In January 2020 he was convicted of two counts of robbery and sentenced to 62 months' imprisonment. The Upper Tribunal treated section 117C(6) of the Nationality, Immigration and Asylum Act 2002 as applying. That provision requires deportation of a foreign criminal sentenced to at least four years unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
The Upper Tribunal's findings. The Upper Tribunal found that AB's partner, a British national, would be unable to join him in India. It accepted her evidence that she feared she and their daughter would be targeted there, and described this as a subjective fear. It found that the effect of deportation on his partner and child would be unduly harsh (Exception 2), and that the very compelling circumstances test was met.
The grounds. The Secretary of State advanced four grounds. Grounds 1 and 3 challenged the Upper Tribunal's reliance on the partner's subjective fear of relocating, and its finding that she was "unable" to relocate. Grounds 2 and 4 argued that the conclusions on very compelling circumstances and on unduly harsh effect were not open to it.
The Secretary of State relied on 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. The submission was that a purely subjective fear of relocation should carry little or no weight in the proportionality assessment, which must be objective. When granting permission to appeal, Laing LJ identified the correct approach to such a fear as an important issue, noting that Lal had not been drawn to the Upper Tribunal's attention.
Points recorded in the judgment. At paragraph 42 the Court states that the Upper Tribunal made no determination, express or implicit, that the partner's fears were not objectively justified. At paragraph 43 the Court says it does not accept the Secretary of State's submission that a "normative assessment" is required, because it considers that this runs contrary to the Supreme Court's rejection of a "notional comparator" test in HA (Iraq) v Secretary of State for the Home Department [2022] 1 WLR 3784. The Secretary of State asked that, if the appeal succeeded, the matter be remitted to the Upper Tribunal for a fresh hearing (paragraph 46).
This item reports the appeal, the grounds and the submissions. It does not report the Court's final decision on the grounds or its order.
Sources
- [Secretary of State for the Home Department v AB [2026] EWCA Civ 230](https://caselaw.nationalarchives.gov.uk/ewca/civ/2026/230), Court of Appeal (Civil Division), 6 March 2026
— Editor's note (not for publication): the source text supplied ends at paragraph 46, before the Court's reasoning and disposal. The holding cannot be checked against it, so the item says so. Please add the outcome from the full judgment before publishing.