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Human rights, long residence and the integration test in the Court of Appeal


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Practitioners commonly rely on the “integration test” in the Immigration Rules to resist an individual’s removal on human rights grounds. The current rules can in some circumstances require a consideration of whether there would be “very significant obstacles” to an individual’s re-integration in that country if they were to be removed or deported.

But what characteristics or circumstances can be considered when assessing these obstacles? The Court of Appeal in AS v Secretary of State for the Home Department [2017] EWCA Civ 1284 has provided some useful guidance.

For a full exploration of the long residence rules and the 10 and 20 year rules in particular see our dedicated post on the subject.


AS was born in Iran in 1995. He came to the UK in 2005 with his mother. They were given indefinite leave to remain in the UK under the family reunion policy, because his father had been granted indefinite leave to remain as a refugee in 2004.

Following a number of lesser convictions, in 2013 AS was convicted of six counts of robbery, three counts of attempted robbery, and one count of handling stolen property. He was sentenced to three years in a Young Offender Institution.

In 2013, the Secretary of State wrote to AS seeking reasons why he should not be deported due to the length of his conviction. After receiving a number of representations, the Secretary of State decided that AS should be deported.

The old rules

This case was somewhat complicated by a change to the Immigration Rules made in 2014.

Prior to 28th July 2014, the Rules provided that an applicant seeking to resist removal on human rights grounds succeeded if they had:

“lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but [had] no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK” (emphasis added).

This threshold, almost impossibly high on the face of it, was considered in Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 60 (IAC).  The Upper Tribunal explained:

“The natural and ordinary meaning of the word ‘ties’ imports, we think, a concept involving something more than merely remote and abstract links to the country of proposed deportation or removal. It involves there being a continued connection to life in that country; something that ties a claimant to his or her country of origin.”

This required a:

“rounded assessment of all the relevant circumstances and is not to be limited to ‘social, cultural, and family’ circumstances.”

A non-exhaustive list of examples were given, including the time spent in the proposed country of removal; the age at which a person left that country; and the extent of family and friends that a person has in the country.

The current rules

From 28th July 2014, paragraph 276ADE(1)(v) of the Rules requires that an applicant seeking leaving to remain on the grounds of their private life who is:

“aged 18 years or above and under 25 years, who has spent at least half of his life living continuously in the UK (aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment);”

may succeed where, according to paragraph 399A of the Rules:

“(a) …

(b) …

(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported.”

These provisions were considered by the Court of Appeal in SSHD v Kamara [2016] EWCA Civ 813:

“”integration” calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual’s private or family life.”

The clear shift is from a consideration of an applicant’s ties with a specific country, to a test which allows contemplation of characteristics as they relate to the applicant only.

AS in the lower courts

But how different are the two approaches outlined above?

AS appealed the Secretary of State’s decision to the First-Tier Tribunal and his appeal was refused. The FTT judge quoted from Ogundimu, which applied of course to the old Rules and required a determination on the question of an applicant’s lack of “ties” to a country of origin.

AS in the UT

The Secretary of State appealed to the UT and the appeal was allowed. The tribunal found that the judge below had in substance assessed the question of whether AS had “no ties” to Iran. In the UT’s view, the error of law was not immaterial. This finding was unchanged by the fact that there was in the penultimate paragraph a single reference made to “very significant” obstacles.

The UT went on to re-make the decision.

The UT’s finding went against AS. The UT was not satisfied that there were very significant obstacles to AS’s integration in Iran. Crucially, the UT referred to ‘generic’ matters. For example, AS was intelligent and academically capable; he was interested in becoming a mechanic; the symptoms of trauma he had displayed after experiencing domestic abuse as a child had reduced.

Guidelines from AS

It is now clear from AS at paragraph 58 that:

“Consideration of the issue of obstacles to integration requires consideration of all relevant factors some of which might be described as generic.”

Importantly, “all relevant factors” will include but must not be limited to the question of “ties” to a particular country. The “broad evaluative judgment” described in Kamara is one which may include the kind of considerations contemplated under the old Ogundimu test.

This change is significant. It is apparent from AS itself that the inclusion of generic factors has the capacity to sway cases in favour of removal or deportation, even where the application to resist removal would have succeeded under the old test.

Right test, wrong direction?

It is clear that integration test as it stands requires judges to consider ‘generic attributes.’ These are those which relate not to the relationship between an individual and a country, but only to the individual themselves.

This represents a significant shift. This also poses a significant risk that certain generic characteristics will be taken as reliable indicators of a capacity to ‘reintegrate’ when in fact they are not. There may even be no such thing as a ‘generic’ indicator. The countries to which people are deported may vary too much.

Take, for example, an apparently uncontroversial generic indicator: intelligence. It seems trite to say that an intelligent person, perhaps evidenced by qualifications (as in AS), will find it easier to find employment, and thereby reintegrate, once returned. But is this true of a deportee who is returning to a country in which certain types of education are seen preclude, not encourage, reintegration?

Of course, advocates for proposed deportees will seek to highlight the fact that in this or that scenario, the ‘generic’ indicator is not a reliable one. But it is concerning that the re-made Upper Tribunal decision contains no reference to what role AS’s “intelligence” would play in Iran. The decision explains that evidence, including an enrolment in a BTEC qualification in Business Studies and the fact of his being “academically capable”:

“supports the proposition that the appellant would be able to adapt to life in Iran because of his intelligence and his ability to speak the language.”

Such a finding requires an assumption that an ability to “adapt” in Iran (which, of course, is not the wording of the Rules) can be surmised from attributes whose role or associations in the target country of removal is not discussed by the Tribunal. This is worrying, because such assumptions will not always be correct. Transplanting characteristics taken in the UK to be factors tending to reintegration onto other areas of the world can be dangerous.

It is perhaps also a worry that the “very significant obstacles to reintegration” test assumes “reintegration” as an unqualified positive process. At first glance, this assumption appears to be a truism: integration is a good thing. But this may not always be the case. If we consider Luke de Noronha’s description of the functioning of crime in Jamaica from his excellent study of deportees’ experiences in Jamaica:

“crime is intensely social… That is, people who control resources, neighbourhoods, garrison communities – often referred to as ‘Dons’ – do so as community leaders. They know who people are, their stories, needs, resources and vulnerabilities.”

In this example, an ability to “reintegrate” may leave an individual more, not less, able to exercise their rights under article 8 as a result of the increased risk of exploitation in the community.

Of course, in extreme circumstances practitioners successfully will rely on non-refoulement and article 3 ECHR to resist removal or deportation to unsafe countries. But many cases will fall short of the high threshold required by those protections. There is a risk that some of those cases will have been decided on the flawed assumption that a “generic factor” will make someone more, not less, safe.

Fundamentally, the more one considers generic attributes without testing such assumptions, the more the courts are at risk of moving away from a consideration of that individual’s article 8 rights. This cannot be a welcome development.

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Thomas Beamont

Parliamentary staffer looking forward to starting pupillage in September 2018. Formerly worked in homelessness. BPTC and GDL from City University. Previously studied History and French at Pembroke College, Oxford.