Court of Appeal new guidance on the “very significant obstacles to integration” test: NC v Secretary of State for the Home Department [2023] EWCA Civ 1379

The Court of Appeal has given guidance as to the proper approach to the “very significant obstacles to integration” test where a person has a genuine subjective fear of harm upon return but that fear is not objectively well-founded. Can such a person rely on their subjective fear to establish very significant obstacles to integration?

These claims are always factually sensitive and in order to better understand the Court of Appeal’s guidance, an understanding of the factual claim made by the Appellant is important.

Factual claim made by the appellant:

The Appellant arrived in the United Kingdom (‘the UK’) from St Kitts and Nevis on 27 March 2016 at the age of 28. She claimed asylum on 25 October 2016 on the basis that she feared she was at a risk of violence from her former friend who was a drug dealer. This friend suspected that the Appellant knew about a shooting and as a result had a vendetta against the Appellant.

There were four incidents which the Appellant relied upon as demonstrating that the risk to her from her former friend was real.

1. Men dressed as police shot at her home whilst she was outside with a friend and partner in 2015. The Appellant was not harmed however her partner was hospitalised for 3 months due to his injuries. The Appellant fled the home and moved in with her sister.
2. In December 2015 men in a van shot at the vehicle whilst she was driving with her sister.
3. In January 2016 a friend was shot and killed on his way to the Appellant’s sister’s house two blocks from her road.
4. In 2018 her son was approached by someone who tried to force him into a vehicle on his way from school. He was told that the Appellant, who was in the UK, had instructed them to collect him.

Home Office refusal decision:

The Home Office refused the asylum claim on the basis that there was effective protection provided by the authorities of St Kitts and Nevis for their citizens which included an established police force. The Appellant could seek protection from them.

The Home Office refused the Article 8 ECHR private life claim on the basis that the Appellant would have retained her knowledge of the customs and traditions and had immediate and extended family living there who could help with integration. Thus, the very significant obstacles to integration test was not met.

Procedural background:

The Appellant appealed to the First-tier Tribunal (Immigration and Asylum Chamber) (‘the FTT’).

The FTT dismissed the asylum claim on the basis that whilst the appellant had a genuine subjective fear of a risk of violence upon return, that was not a well-founded fear. The Tribunal found that it was not reasonably likely that her former friend or her associates were attempting to harm the appellant during any of the shooting incidents and the attempted abduction of the son was not due to their criminal associations.

The FTT went on to consider the Article 8 ECHR claim by reference to the “very significant obstacles test” and found that as the Appellant had a genuine subjective fear for herself and her children the appeal ought to be allowed. The FTT Judge reasoned that the fear of violence and her belief that the authorities would not afford her protection were obstacles which meant she would be unable to integrate. The appeal was allowed.

The Secretary of State was granted permission to appeal by the Upper Tribunal (‘the UT’). The UT concluded that the FTT had been fully aware of the legal test however had not properly applied that test. In doing so the UT accepted that a person’s “state of mind” might be relevant to an ability to integrate however, that is only but one factor and the judge should have also considered whether there was protection available from the authorities. The failure to consider the latter made it “difficult to see how the subjective fear could prevent reintegration” [11].

The UT set aside the FTT determination and preserved the finding in relation to the protection claim. The appeal was dismissed on human rights grounds. The Appellant appealed to the Court of Appeal on the basis that the UT had fallen into legal error in finding that there was an error of law in the FTT determination. The FTT was entitled to reach the conclusion that it did. The UT focussed too heavily on the lack of objectivity in the FTT’s analysis.

Court of Appeal decision:

Before the Court of Appeal, the Secretary of State agreed that subjective factors such as a person’s own perception of risk and fear of harm could form part of the broad evaluative assessment which this test requires [16].

However, the Secretary of State submitted that it was incumbent upon the FTTJ to also consider the objective evidence such as whether there was sufficiency of protection by the authorities [18].

The Court was referred to three previous judgments from the Court of Appeal that addressed the very significant obstacles test:

• Kamara v Secretary of State of the Home Department [2016] EWCA Civ 813
• Parveen v Secretary of State for the Home department [2018] EWCA Civ 932
• Lal v Secretary of State for the Home Department [2019] EWCA Civ 1925.

The Court of Appeal helpfully summarised these authorities and condensed them into three principles:

1. The decision maker or FTT must conduct a broad evaluative judgement (see Kamara at §14);
2. The decision/judgement must focus on the obstacles to integration and their significance to the appellant (see Parveen at §9);
3. The test is not subjective in the sense of being limited to the appellant’s own perception of the obstacles to reintegration but extends to all aspects of the appellant’s likely situation on return including objective evidence. This requires consideration of any reasonable step that could be taken to avoid or mitigate the obstacles (see Lal at §§36 – 37).

Lady Justice Whipple added:

26. I would add this. The test posed by paragraph 276ADE(1)(vi) is a practical one. Regard must be had to the likely consequences of the obstacles to reintegration which are identified. In a case like this, where the only obstacle identified is the appellant’s genuine but unfounded fear, particular care must be taken to assess the ways in which and the extent to which that subjective fear will or might impede re-integration. It cannot simply be assumed that it will. The likely reality for the appellant on resuming her life in her home country must be considered, given her subjective fear, and the availability of support and any other mitigation must be weighed. It is against that background that the judgment on whether the obstacles to reintegration will be very significant must be reached.

This was the fatal flaw in the approach taken by the FTT which did not turn its mind to any evidence beyond the appellant’s subjective evidence of fear. The FTT Judge had not considered the Secretary of State’s objective evidence regarding availability of police protection in the event that the appellant or her children were threatened [27]. A further factor which should have been balanced against the subjective fear was that the Appellant had lived in the country for 28 years before coming to the UK and she had immediate and extended family there. It does not appear that the appellant relied on any evidence to counter this point which was raised in the refusal.

The Court set out the approach which the FTT Judge should have taken which was to focus on the likely reality of the appellant’s day to day life if returned and whether there were steps which the appellant could reasonably take to avoid or mitigate such problems i.e. seeking protection from the State [28]:

28. The First-tier Tribunal should have considered all of this evidence as part of its evaluation of the appellant’s case. Its focus should have been on the likely reality of the appellant’s day to day life if returned. Specifically, if it thought that there were likely to be obstacles to the appellant’s reintegration, of whatever sort and whatever genesis, it should have considered whether there were steps which the appellant could reasonably take to avoid or mitigate such problems, for example, by seeking state protection or asking for help from family members.

In this case, the court found that the First-tier Tribunal failed to consider crucial evidence beyond the appellant’s subjective fear. The tribunal overlooked objective evidence regarding the availability of state protection and the appellant’s connections in her home country. This led to an incomplete evaluation of whether the appellant could reasonably overcome obstacles to integration. Consequently, the court determined that the First-tier Tribunal’s decision was flawed due to its failure to consider all relevant evidence, leading to the Upper Tribunal rightfully setting it aside.

Disposal:

The appeal was dismissed unanimously. The Court was not critical of the finding made by the FTT Judge that the appellant did have a genuine subjective fear of harm upon return. Instead, the Court found that the error occurred because the FTT failed to consider the practical reality for the appellant upon return. There was no consideration of the objective evidence relied upon by the Secretary of State nor any consideration of any mitigating factors [30]. The broad evaluative exercise was simply not carried out [31].

Comment:

This authority by no means reinvents the wheel and indeed many practitioners reading this judgement will already be well versed with this test. However, it is worth noting when preparing claims or appeals that:

1. Where a claim relates to a person’s fear of harm upon return which would also impact their capacity/ability to reintegrate upon return it is important to establish the reasons subjectively and objectively if possible.
2. Thereafter, the Appellant must address possible mitigating factors in their country of origin. Usually, the Secretary of State will set out these factors in the reasons for refusal letter such as family ties in the country of origin and support from the country of origin such as police enforcement or healthcare services.
3. It is important to address how the subjective fear would in practice be likely to impact the applicant/appellant and their ability to reintegrate in the country of origin.

Mental health problems are often cited in these types of claims, and this might have a material bearing on a person’s ability or capacity to mitigate their circumstances. This can be particularly compelling in circumstances where the Secretary of State’s own country information cites poor healthcare in the country of origin and/or negative societal attitudes/stigma towards mental health issues. In SC (Jamaica) v Secretary of State for the Home Department [2022] UKSC 15 a case which involved deportation and cites Kamara, the Supreme Court endorsed the judgement of the FTT Judge who found the VSO test was met based on the serious long-term mental health issues of the Appellant:

“107. In relation to the issue as to whether “there would be very significant obstacles to [SC’s] integration” into Jamaica, Mr Malik on behalf of the SSHD submitted that the F-tT judge had failed to pay adequate regard to SC’s criminality as potentially showing a certain robustness of character. I reject this submission. The F-tT judge considered in meticulous detail all the evidence as to SC’s character concluding that SC had a highly complex form of PTSD, had a long history of depression, was deeply traumatised, could be described as institutionalised and needed long-term psychological treatment. Based on those findings alone it was open to the F-tT judge to determine that there would be “very significant obstacles to [SC’s] integration” into Jamaica.”

It would be wise to ensure that the appellant has provided a detailed witness statement which sets out their subjective concerns for returning to their country of origin. The Appellant should address the Secretary of State’s reasons for refusal and in particular any mitigating circumstances she has relied upon. Where possible the claim should be supported by objective evidence.

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