Secretary of State for the Home Department v AB: subjective fear and the limits of deportation appeals

The Court of Appeal has allowed, in part, the Secretary of State's appeal in SSHD v AB [2026] EWCA Civ 230, remitting the matter to a fresh constitution of the Upper Tribunal. The case turns on a significant point of principle: where a foreign criminal's partner claims she cannot relocate to the country of proposed deportation, the tribunal must undertake an objective assessment of that claim — not simply accept a subjective account of fear.

AB, an Indian national resident in the UK since the age of 11, was sentenced to 62 months' imprisonment following conviction for two counts of robbery. His partner CD, a British national of Pakistani heritage, gave evidence that she would be unable to relocate to India, citing her lifelong residence in the UK and a fear — arising from a maternal uncle's political connections in Pakistan — that she and their daughter EF would be targeted there.

The Upper Tribunal found those circumstances sufficient to establish "very compelling circumstances" under s.117C(6) of the Nationality, Immigration and Asylum Act 2002, allowing AB's Article 8 appeal. The Secretary of State challenged that conclusion on four grounds.

The objective/subjective distinction

The Court of Appeal, in a judgement delivered by Moylan LJ (Bean LJ and Yip LJ agreeing), identified the central legal error: the Upper Tribunal had accepted CD's subjective fear as sufficient basis for concluding she was unable to relocate, without conducting any broader objective analysis. Applying 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, Moylan LJ held that this approach materially diluted the stringency of the statutory tests.

Lal, though decided in the context of the "insurmountable obstacles" test under Appendix FM, established the principle that an obstacle is not shown to be insurmountable merely because an individual perceives it as such and would in fact be deterred from relocating. NC confirmed, in the context of the "very significant obstacles" test under paragraph 276ADE(1)(vi), that subjective factors form part — but only part — of the required broad evaluative judgement. The tribunal must consider objective circumstances and weigh all relevant factors cumulatively.

Moylan LJ held that those principles apply with equal force to the "unduly harsh" and "very compelling circumstances" tests under s.117C(5) and (6). The tribunal is required to form its own view of the nature and extent of the risk, rather than simply adopting the claimant's own perception.

Subjective fear remains relevant

The judgement does not render subjective fear irrelevant. Moylan LJ expressly rejected the Secretary of State's submission that a purely subjective fear is immaterial or deserves little weight as a matter of principle. Whipple LJ's analysis in NC — that where a genuine but unfounded fear is the only obstacle, careful attention must be paid to the ways in which and extent to which it will impede reintegration — was endorsed. The point is that subjective perception cannot be the end of the analysis; it must feed into a broader, objective evaluative exercise.

The rejection of a normative comparator

The Court also declined to accept the Secretary of State's submission that the tribunal was required to conduct a "normative assessment" by reference to some standard or comparator. Following the Supreme Court's rejection of the "notional comparator" test in HA (Iraq) v Secretary of State for the Home Department [2022] 1 WLR 3784, Moylan LJ held that the statutory exercise is an evaluation of the particular circumstances of the individual case — not a comparative exercise measured against any external benchmark.

Disposal

Given the absence of most of the underlying documentary evidence, the lack of any transcript of oral evidence, and the Upper Tribunal's particular findings as to CD's credibility, the Court declined to remake the decision itself. A rehearing before a fresh constitution of the Upper Tribunal was directed, at which a full proportionality assessment — taking into account CD's mental health, her particular characteristics and circumstances, and all relevant objective factors — can properly be undertaken.

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