The Court of Appeal (CoA) examined the “very compelling circumstances” test under Section 117C(6) of the Nationality, Immigration and Asylum Act (NIAA) 2002 regarding the deportation of a foreign criminal.
Background:
AB is an Indian national who has lived in the UK since 2007, having arrived aged 11. AB’s father is currently imprisoned in India for the murder of AB’s mother and other close relatives.
In the UK, AB established a family life with a British citizen, CD, and they have a young daughter, EF, with another child expected at the time of the hearing. CD, who is of Pakistani heritage, is estranged from her own family due to threats of an “honour killing” after she refused an arranged marriage to pursue her relationship with AB.
Although various leave-to-remain (LTR) applications were rejected, in December 2016, he was granted a limited LTR based on his family and private life until June 2019. However, before his application was determined, AB was convicted of offences that led to legal conflict. While he had a prior suspended sentence for assault, the critical turning point was his conviction in January 2020 for two counts of robbery. He was sentenced to more than five years for “snatching” gold necklaces from vulnerable women in broad daylight. Because his sentence exceeded the four-year threshold, he was classified as a “serious foreign criminal” under Section 117C of the NIAA 2002. This status triggered a statutory presumption that his deportation is in the public interest unless he can demonstrate “very compelling circumstances” that outweigh the high public interest in his removal.
In November 2020, the Secretary of State for the Home Department (SSHD) issued a deportation order following AB’s robbery conviction. AB challenged this with a human rights and asylum claim. The FTT initially allowed AB’s appeal, although the SSHD successfully appealed this decision to the Upper Tribunal (UT). The case returned to the UT to decide whether AB was a “danger to the community” and also to assess the strength of his Article 8 (Family Life) claim. The SSHD brought the case to the CoA, arguing that the UT’s decision on family life was legally flawed.
Decision:
The CoA eventually determined that the UT had made a legal error by simply accepting the wife’s subjective fear without performing its own objective evaluation of the relocation risks. While the Court acknowledged that a person’s genuine fear is a “real-world” factor that can affect their mental health and ability to integrate, it ruled that the legal test for relocation must be grounded in an objective analysis of the likely reality. Because the Court did not have all the necessary medical records or transcripts of the oral evidence to make its own factual determination, it set aside the previous ruling and ordered a fresh rehearing to properly balance the family’s rights against the public interest.
Implications:
This case clarifies that, while the law is very strict for those jailed for four years or more, the “real-world” impact on a partner’s mental health and a child’s well-being can still halt a deportation, provided that the evidence is handled correctly.
A major implication of this case is that a family member cannot simply stop a deportation by claiming that they are too afraid to move abroad. The Court ruled that judges must look at the objective reality. Even if a partner is genuinely terrified of returning to another country, the Court will investigate whether relocation to that country actually poses a genuine risk to their well-being. If you are claiming that it is impossible to relocate, you must provide more than just personal testimony – you need objective evidence, such as country reports, police records, or expert testimony, to prove that your fears are well-founded.
