NC v Secretary of State for the Home Department

The assessment of whether a person would face very significant obstacles to integration requires a broad, practical evaluation of the person’s likely circumstances on return. The decision-maker must consider both subjective and objective factors, the practical effect of each identified obstacle and any reasonable means of avoiding or mitigating it.

A genuine but objectively unfounded fear may be relevant. It does not, without more, establish an inability to integrate. The decision-maker must assess how the fear would impede day-to-day life and weigh available state protection, family support and other integrative connections. A tribunal errs in law if it moves directly from identifying a subjective fear to finding the test satisfied without engaging with material evidence bearing on its practical significance.

The appellant, a national of St Kitts and Nevis, entered the United Kingdom with two of her children and claimed asylum. The Secretary of State rejected her protection and human rights claims. The First-tier Tribunal rejected the protection claim but allowed the appeal under Paragraph 276ADE(1)(vi) of the Immigration Rules, finding that her genuine fear of reprisals would significantly affect her ability to live normally and integrate on return.

The Upper Tribunal held that the First-tier Tribunal had not performed the required broad evaluative assessment. It had failed to consider the objective availability of state protection and the appellant’s family and social connections. The determination was set aside and, following a resumed hearing, the human rights appeal was dismissed.

The Court of Appeal considered whether the Upper Tribunal had been entitled to identify an error of law in the First-tier Tribunal’s assessment of whether there were very significant obstacles to integration.

1. Appeal dismissed. The Upper Tribunal had correctly held that the First-tier Tribunal erred in law when applying Paragraph 276ADE(1)(vi) of the Immigration Rules. The First-tier Tribunal’s determination of the human rights claim could not stand.

2. The statutory language required a broad evaluative judgment focused on the obstacles to integration and their significance for the individual. Integration was a broad concept involving the person’s ability to understand and participate in society, operate on a day-to-day basis and develop relationships. The test was practical and was not confined to the individual’s perception of the obstacles: Kamara [2016] EWCA Civ 813, Parveen [2018] EWCA Civ 932 and Lal [2019] EWCA Civ 1925 applied.

3. Subjective factors, including a genuine fear of harm, could be relevant. Where the fear was objectively unfounded and was the only identified obstacle, however, the tribunal had to assess carefully how and to what extent it would impede integration. It could not simply assume that the fear would do so. The tribunal had to examine the likely reality of life on return and weigh available support and any reasonable steps capable of avoiding or mitigating the difficulty.

4. The First-tier Tribunal considered only the appellant’s subjective fear. It did not engage with material evidence that state protection was available or that the appellant had lived in St Kitts and Nevis for 28 years and retained immediate and extended family there. Those matters bore directly on the practical significance of her fear and on the availability of mitigation. The tribunal moved directly from finding a subjective fear to concluding that integration would be impossible.

   That failure could be characterised as a failure to perform the required broad evaluation, to apply the objective approach, to consider relevant matters or to give adequate reasons. Although an appellate court should read a tribunal’s reasons fairly and should not examine them as if they were a statute, that restraint could not preserve a determination which failed to engage with material evidence. Snowden and Newey LJJ agreed with Whipple LJ.

1. Court of Appeal (Civil Division): The court dismissed the appeal in [2023] EWCA Civ 1379. It held that the Upper Tribunal had correctly identified an error of law in the First-tier Tribunal’s assessment under Paragraph 276ADE(1)(vi) of the Immigration Rules.

2. Upper Tribunal (Immigration and Asylum Chamber): By a determination dated 23 May 2022, the Upper Tribunal set aside the First-tier Tribunal’s determination on the human rights claim while preserving its protection findings. Following a resumed hearing, it dismissed the human rights appeal in a determination promulgated on 29 September 2022.

3. First-tier Tribunal (Immigration and Asylum Chamber): By a determination dated 21 April 2021, the tribunal rejected the protection claims but allowed the appeal under Paragraph 276ADE(1)(vi), based on the appellant’s genuine subjective fear and its perceived effect on integration.