AS v Secretary of State for the Home Department

The statutory and Rules-based test of whether there would be very significant obstacles to a foreign criminal’s integration abroad must be applied in its own terms. It is not satisfied by an assessment confined to the person’s ties with that country.

Integration requires a broad evaluative judgment. All relevant matters may be considered, including language, health, capacity for work, personal abilities, adaptability and practical support available through family connections. The Strasbourg reference to very serious reasons for expulsion does not create a separate, invariable hurdle. Proportionality remains a conventional balance between the public interest and private and family life.

AS, an Iranian national who arrived in the United Kingdom aged nine, appealed against a deportation decision made after his convictions for robbery and related offences committed as a youth.

The First-tier Tribunal allowed his appeal. It referred to the pre-28 July 2014 version of the Immigration Rules and found that he would face very significant obstacles to integration in Iran. The Upper Tribunal set that decision aside for material error of law, re-made the decision under the amended Rules and sections 117A-D of the Nationality, Immigration and Asylum Act 2002, and dismissed the appeal.

The central issues were whether the First-tier Tribunal’s error was material and whether the Upper Tribunal had lawfully found that AS would not face very significant obstacles to integration in Iran.

1. Appeal dismissed. The Upper Tribunal was entitled to conclude that the First-tier Tribunal had made a material error of law. The First-tier Tribunal neither referred to sections 117A-D of the Nationality, Immigration and Asylum Act 2002 nor applied the version of paragraph 399A of the Immigration Rules then in force.

2. The former inquiry into whether a person had no ties with the destination country was not the same as the amended inquiry into very significant obstacles to integration. Although the First-tier Tribunal briefly used the new language, its reasoning was directed to ties and contained no reasoned assessment of the statutory issue. The error was therefore one of substance as well as form. The conditions for immateriality stated in [2014] EWCA Civ 1636 were not met.

3. The Court applied the broad evaluative approach to integration explained in [2016] EWCA Civ 813. Integration is not confined to employment or mere survival, but neither is it determined only by ties with the destination country. The assessment may include adaptability, language, intelligence, health, academic and work-related abilities, character, and assistance which a parent’s continuing connections may provide.

4. The Upper Tribunal had not substituted adaptation for integration. Its reference to AS’s ability to adapt was one relevant part of its wider assessment. It had considered both the obstacles arising from his long absence, limited literacy in Farsi and lack of known relatives, and the factors assisting integration. Its conclusion that the obstacles were not very significant was open to it.

5. The Strasbourg phrase that very serious reasons are required in certain expulsion cases does not establish a separate, objective and invariable threshold. Following [2015] 1 WLR 466, proportionality remained a conventional balancing exercise. The public interest in deportation was not outweighed on the facts.

• Court of Appeal (Civil Division): AS’s appeal was dismissed: [2017] EWCA Civ 1284.

• Upper Tribunal: allowed the Secretary of State’s appeal, set aside the First-tier Tribunal decision for material error of law, and re-made the decision by dismissing AS’s deportation appeal on 10 December 2015.

• First-tier Tribunal: allowed AS’s appeal against the deportation decision on 7 October 2014.