The Court of Appeal has emphasised that consideration of whether there are very significant obstacles to a person’s reintegration is a practical test which must take into account objective evidence. The case is NC v Secretary of State for the Home Department [2023] EWCA Civ 1379.

Background

The appellant is a national of St Kitts and Nevis who arrived in the UK in March 2016 aged 28. She claimed asylum in October 2016 and this was refused in July 2020. She appealed and the First-tier Tribunal dismissed the asylum claim but allowed the appeal on article 8 grounds, namely that there would be very significant obstacles to the appellant’s integration if returned. This was under paragraph 276ADE of the immigration rules, since replaced with Appendix Private Life.

The First-tier Tribunal judge held that although it was not reasonably likely that the appellant would face harm on return to St Kitts, the appellant “subjectively believes she is in danger” and that “subjectively she believes the authorities are not willing to protect her”. The judge concluded that on the balance of probabilities this would mean that the appellant would be unable to integrate back into life in St Kitts and the appeal was allowed.

The Home Secretary appealed and the Upper Tribunal concluded that the First-tier Tribunal had not applied the “very significant hurdles to integration” test properly and had failed to provide adequate reasons for her conclusion. The Upper Tribunal set aside the First-tier Tribunal’s decision and following a further hearing in August 2022 remade the decision itself, dismissing the appellant’s appeal.

The Court of Appeal

The appellant appealed to the Court of Appeal against both Upper Tribunal decisions, but permission to appeal was granted only in respect of the first, error of law decision. The appellant argued that the First-tier Tribunal had taken account of all the evidence before it, had carried out the required broad evaluative assessment and was entitled to reach the conclusion it did. It was submitted that the Upper Tribunal was not entitled to go behind the statement by the First-tier Tribunal that it had taken all the evidence into account.

The Home Secretary argued that the First-tier Tribunal had overlooked evidence on sufficiency of protection, family connections and local knowledge, all of which would have helped the appellant to re-integrate. The First-tier Tribunal had simply not performed its role and the assertion that it had considered all of the evidence was insufficient given it had self-evidently not done so in making the article 8 decision. The Home Secretary said that the Upper Tribunal had reached the correct decision.

The Court of Appeal set out the relevant authorities for consideration of very significant obstacles, starting with Kamara v Secretary of State for the Home Department [2016] EWCA Civ 813, which set out the need for a “broad evaluative judgment”. The court then referred to Parveen v Secretary of State for the Home Department [2018] EWCA Civ 932 which said that the obstacles to integration must be assessed and then a decision made on whether they are “very significant”, and Lal v Secretary of State for the Home Department [2019] EWCA Civ 1925 which held that reasonable steps that can be taken to avoid or mitigate the obstacles must be considered.

The Court of Appeal emphasised that the test is a practical one and said that it was not apparent that the First-tier Tribunal had considered anything apart from the appellant’s subjective fear. The two areas of objective evidence, sufficiency of state protection and the appellant’s connections to St Kitts, were important and should have been considered. On concluding that there were likely to be obstacles to the appellant’s reintegration, the Tribunal should have then considered whether there were steps that could be reasonably taken by the appellant to avoid or mitigate the problems, and this could have included seeking state protection or help from family.

For these reasons, the court proceeded to dismiss the appeal.

Conclusion

The appellant has two children who are here with her in the UK, the determination does not say when they arrived in the UK but they were here and aged 10 and 8 at the date of the First-tier Tribunal’s decision in April 2021. Given the Home Office’s poor record on removals, and depending on how long they have already been here, this may not be the end of the road for this family’s stay in the UK.