The Court of Appeal has dismissed a challenge to the Upper Tribunal's application of the 'integration test' in the case of AS v Secretary of State for the Home Department [2017] EWCA Civ 1284.
Background
Judges use the integration test to decide whether a person who is to be removed (or in criminal cases, deported) would face 'very significant obstacles' to re-integration in their country of origin. [1]
It frequently arises where a person has lived most of their life in the UK (or outside their country of origin), does not speak the predominant language back 'home' and is effectively alienated from the culture and society from which they emigrated.
It can also arise in claims for international protection, such as where a person claims that they will be treated as a second-class citizen due to their ethnicity / nationality / statelessness and/or face severely impoverished conditions upon return.
So when Judges tinker with the test it can affect a wide variety of human rights claims in the Immigration Tribunal.
Related: Private life vs. public interest: when does integration defeat deportation from the UK
I've written before about the Court of Appeal (reluctantly) giving guidance on the test in the case of Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813 here, which builds on the more detailed discussion in the earlier authority of Ogundimu (discussed below).
In AS, it appears neither party had included Kamara, the most recent authority, in their arguments, so the Court requested further written representations after the hearing. Had the Court been less alert, we might have inconsistent guidance at the Court of Appeal level on an immigration issue of some importance (and not for the first time).
The old integration test: Ogundimu
This is not an easy, low-threshold test but a narrow and stringent one that is very hard to meet.
The Upper Tribunal case of Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 60 (IAC) (18 February 2013) dealt with the old version of the integration test which required a person to show they had 'no ties' with their country of origin. The UT wrote:
123. The natural and ordinary meaning of the word 'ties' imports, we think, a concept involving something more than merely remote and abstract links to the country of proposed deportation or removal. It involves there being a continued connection to life in that country; something that ties a claimant to his or her country of origin. If this were not the case then it would appear that a person's nationality of the country of proposed deportation could of itself lead to a failure to meet the requirements of the rule. This would render the application of the rule, given the context within which it operates, entirely meaningless.
124. We recognise that the text under the rules is an exacting one. Consideration of whether a person has 'no ties' to such country must involve a rounded assessment of all the relevant circumstances and is not to be limited to 'social, cultural and family' circumstances…
125. Whilst each case turns on its own facts, circumstances relevant to the assessment of whether a person has ties to the country to which they would have to go if they were required to leave the United Kingdom must include, but are not limited to: the length of time a person has spent in the country to which he would have to go if he were required to leave the United Kingdom, the age that the person left that country, the exposure that person has had to the cultural norms of that country, whether that person speaks the language of the country, the extent of the family and friends that person has in the country to which he is being deported or removed and the quality of the relationships that person has with those friends and family members.
The new integration test: Kamara
The government scrapped the 'no ties' version of the test on 28 July 2014 and replaced it with a new and differently worded test. Now, a person must show (among other things) that there are 'very significant obstacles to integration' in their country of origin.
Looking at this test, in Kamara, Lord Justice Sales wrote at § 14:
The idea of "integration" calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual's private or family life.
The further guidance in AS
Now we have AS which adds some further considerations to the mix:
• The old and the new tests are not the same in form and substance (§ 55);
• A Tribunal will go wrong in law if it only considers whether a person has lost ties to their country of origin. That does not comply with the broad assessment that the new test envisages;
• The integration test requires consideration of "all relevant factors some of which might be described as generic" such as a person's ability to adapt to the culture, their health, employability and level of education (§§ 58 and 59);
• A person's parent's ties (such as friends or distant relatives) might be able to assist the person with integration (§ 60). In other words, the 'ties' do not have to be direct.
• It seems that Ogundimu, while decided under the old test, is still alive and kicking. In my experience, it never really left the scene despite a change in the wording of the law. For now Ogundimu may be making a comeback with a renewed sense of purpose.
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[1] See paragraph 276ADE(1)(vi) and 399A of the Immigration Rules, plus section 117C(4) of the Nationality, Immigration and Asylum Act 2002.