Long residency and the “integration test”

human-rights

 

Practitioners commonly rely on the “integration test” in the Immigration Rules to resist an individual’s removal on human rights grounds. The current laws and rules can in some situations require that a consideration of whether there would be very significant obstacles to an individual’s re-integration in that country were to be removes or deported.

But what characteristics or circumstances can be considered when evaluating these obstacles? The Court of appeal in AS v SSHD [2017] EWCA 1284 has provided some useful guidance.

The case was somewhat complicated by a change to the Immigration Rules made in 2014.

Prior to 28th July 2014, the Rules provided that an applicant seeking to resist removal on human rights grounds succeeded if they had:

“lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but [had] no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK”

This threshold, almost impossibly high as it is, was considered in Ogundimu Nigeria [2013] UKUT 60 (IAC). The Upper Tribunal explained:

“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.”

This needs a:

“rounded assessment of all the relevant circumstances and is not to be limited to ‘social, cultural, and family’ circumstances.”

A non-exhaustive list of examples has been provided, including the time spent in the proposed country of removal; the age at which a person left that country; and the extend of family and friends that a person has in the country.

From 28 July 2014, paragraph 276 ADE (1)(v) of the Immigration Rules requires that an applicant seeking leave to remain on ground of private life who is:

“aged 18 years or above and under 25 years, who has spent at least half of his life living continuously in the UK (aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment);”

May succeed where, according to paragraph 399A of the Rules:

“(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported.”

These provisions were considered by the Court of Appeal in SSHD v Kamara [2016] EWCA Civ 813:

”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.”

Of course, in high difficulty circumstances practitioners successfully will rely on non-refoulment and article 3 ECHR to resist removal or deportation to unsafe countries. But many cases will fall short of the high threshold required by those protections. There is a risk that some of those cases will have been decided on the flawed assumption that a “generic factor” will make someone more, not less, safe.

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Tags: Immigration

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