Skip to main content

Court of Appeal: ‘Very significant obstacles to integration’ is an objective test

Written by
Asad Ali Khan
Date of Publication:

NC v Secretary of State for the Home Department [2023] EWCA Civ 1379 (22 November 2023)

The Court of Appeal has held that the First-tier Tribunal had erred in its application of the "very significant obstacles to integration" test set out in paragraph 276ADE(1)(vi) of the Immigration Rules, as then in force, by failing to turn its attention to any evidence beyond an individual's subjective fear of violence if they were returned to their home country. On proper analysis, the FTT should have focused on the reality of the individual's daily life if returned; specifically, what steps she could reasonable take to avoid or mitigate her fear, such as by seeking state protection or asking for help from relatives. The appellant, "NC", maintained that there was no error of law in the FTT's determination, that the Upper Tribunal was itself in error in concluding that there was and that the FTT's determination in her favour should stand. However, the SSHD maintained that the Upper Tribunal was correct to find that the FTT had made an error of law and to set aside the FTT's determination. The focus of the appeal was on the meaning of "very significant obstacles to … integration" as those words appeared in paragraph 276ADE(1)(vi) at the material time. The appellant "NC" appealed against the Upper Tribunal's determination that the FTT had made an error of law when it concluded that she should not be returned to St Kitts and Nevis. NC came to the UK in March 2016, aged 28. She claimed asylum in October 2016.

In July 2020, the SSHD refused her asylum claim and stated that she did not qualify for humanitarian or asylum protection, that removal would not breach article 8 of the ECHR and that she did not qualify for exceptional leave to remain outside the Immigration Rules and first of all the refusal observed that in the context of her asylum claim, there was effective protection provided by the authorities of St Kitts for their citizens, including an established police force from which NC could seek protection if required. Secondly, in the context of her human rights claim, NC would not face very significant obstacles to her integration into St Kitts as she would still retain knowledge of its customs and traditions and had immediate and extended family living there who could assist with integration. The FTT found that NC had a genuine fear that she would be at risk of violence from a former friend "CH", who was a drug dealer and who she asserted had a vendetta against her. That finding was based on NC having experienced four incidents of violence, namely three attempted shootings against her and her associates and the attempted abduction of her son. The judge concluded that it was not reasonably likely that NC would face a real risk of substantial harm from CH or her associates were she to return to St Kitts and, so, her asylum and humanitarian protection claims were rejected. But applying paragraph 276ADE(1)(vi), the FTT allowed NC's article 8 claim on the basis that there would be very significant obstacles to her reintegration if she returned to St Kitts, based on her subjective belief that she would be in danger and that the authorities would not be willing to protect her.

Setting aside that determination, the Upper Tribunal concluded that the FTT judge had not properly applied the "very significant obstacles to integration" test set out in paragraph 276ADE(1)(vi) by failing to ask herself the right question of whether, objectively, there were significant obstacles to reintegration.

The Court of Appeal

Newey, Snowden and Whipple LJJ unanimously dismissed the appeal. As to the correct legal approach to be taken, Whipple LJ applied Kamara v SSHD [2016] EWCA Civ 813, where the SSHD appealed unsuccessfully against a determination of the Upper Tribunal that Kamara could not be deported to Sierra Leone because to do so would be in breach of article 8 and held that a decision-maker (or an appellate tribunal) needed to reach a broad evaluative judgement on the paragraph 276ADE(1)(iv) question. That judgement had to focus on the obstacles to integration and their significance to the appellant, as observed in Parveen v SSHD [2018] EWCA Civ 932, a case on paragraph 276ADE(1)(vi) concerning a Pakistani national who had been in the UK for 18 years but asserted she would face very significant obstacles to reintegration in Pakistan. The Court of Appeal elected to dismiss her appeal, not being persuaded that she would face such obstacles.

The test was not subjective, in the sense of being limited to an appellant's own perception of obstacles to reintegration, but extended to all aspects of their likely situation on return, including objective evidence, and required consideration of any reasonable step that could be taken to avoid or mitigate the obstacles. This was the upshot of Cathrine Lal v SSHD [2019] EWCA Civ 1925 and threading the authorities together, Whipple LJ held:

25. It is not in doubt, based on these authorities, that (i) the decision-maker (or tribunal on appeal) must reach a broad evaluative judgment on the paragraph 276ADE(1)(vi) question (see Kamara at [14]), (ii) that judgment must focus on the obstacles to integration and their significance to the appellant (see Parveen at [9]) and (iii) 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, and requires consideration of any reasonable step that could be taken to avoid or mitigate the obstacles (see Lal at [36]-[37]).

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.

The Court of Appeal concluded that the FTT had not turned its attention to any evidence beyond NC's subjective fear. There was no reference within to either of the two types of evidence on which the SSHD relied to rebut NC's case based on her subjective fear. That objective evidence related, to the availability of police protection in the event that she or her children were threatened. In answer to this point, her counsel said that she would not be able or willing to seek help from the authorities given her fear of the police. But there was no finding to that effect, and the finding that she believes that the authorities are not willing to protect her did not go far enough. Accordingly, Whipple LJ held:

27. … It is clear that the Secretary of State relied on the availability of state protection to rebut the appellant's Article 8 claim, because the submission on the Secretary of State's behalf was that the paragraph 276ADE(1)(vi) claim "stands or falls with the protection claim", a direct reference to the evidence of the availability of state protection (noting that the First-tier Tribunal had accepted that evidence as a reason for rejecting the appellant's asylum and humanitarian protection claim). The second area of evidence related to the appellant's connections with St Kitts and Nevis where she had lived for 28 years before coming to the UK for the relatively short period of 4 years, and in which country she had immediate and extended family. These two areas of objective evidence were important; they went directly to the significance of the obstacle to integration the appellant had identified – namely her subjective fear of reprisals. This evidence was set out in the Secretary of State's decision letter and was before the First-tier Tribunal on appeal.

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.

The FTT's mistake was most clearly illustrated by its recognition of NC's subjective fear, followed by the statement that "therefore" she would be unable to integrate into life in St Kitts. Its approach identified an obstacle to integration (NC's subjective fear) and moved directly to its determination that the legal test was met, without considering the mitigating and other objective factors, without considering how that subjective fear would, in reality and taking account of all the evidence, be likely to impact on NC. Whipple LJ explained further:

31. That amounts to an error of law which can be characterised as a failure to carry out the required broad evaluative judgment (by not taking account of all the evidence), a failure to apply the required objective approach (by considering only the subjective evidence without regard to reasonable steps the appellant could be expected to take), a failure to take into account relevant considerations (by not considering the wider evidence going to state protection and family connections) or a failure to give reasons (because the reasoning offered does not indicate any consideration of these matters). The label does not much matter. The First-tier Tribunal's determination cannot stand.

In reaching this conclusion, she was conscious that she should not pick holes in the FTT's determination, or read it like a statute, or be overly prescriptive about the form it should take. The Upper Tribunal was right to set aside the FTT's determination of NC's article 8 claim.


The Court of Appeal emphasised that the condition in paragraph 276ADE(1)(vi)—"very significant obstacles to integration"—is an objective test and that as held in Parveen even 18 years in the UK does not necessarily present very significant obstacles to reintegration elsewhere. In The Rule of Law, Lord Bingham explains (page 76) that "the common law was not very sensitive to the claims of personal autonomy and, as the cases decided under the Convention demonstrate, this is a difficult area. While the core of the right to which Article 8 is directed is clear enough, the outer reaches of protection are more nebulous."