Tentative Guidance from Court of Appeal as to meaning of “very significant obstacles to integration” in an inadequately prepared application

“ I wish to add that this Court sees too many cases in which applicants for leave or their advisers – particularly in cases depending on article 8 outside the Rules – devote their energies to setting out extracts from the case-law rather than to demonstrating a compelling case based on the details of the applicant’s particular circumstances. The latter exercise may require more work, but it is what the Secretary of State, and if necessary the Tribunal, will be more concerned with. Cases of this kind generally turn on their facts, and the applicable law does not require elaborate exposition”.   So said the Court of Appeal in Parveen v The Secretary of State for the Home Department [2018] EWCA Civ 932 (25 April 2018)

This is clear criticism by the Court regarding the practice of advancement of inadequately or  poorly prepared Article 8 applications.

Such applications  clearly need to be particularised as to  circumstances, buttressed   by relevant supportive evidence. Generic  and vague cover letters will not suffice more so where it is  subsequently sought to  mount future challenges in the higher courts.

Summary Background


The Appellant, a Pakistani national  entered the UK on 25 May 2000 on a spouse visa by virtue of her marriage to a British national.  Her leave expired on 25 May 2001 however she  failed to apply for leave to remain before that date. She eventually made such an application, on 11 November 2014. The application was refused on 27 January 2015. She applied for permission to apply for judicial review of that decision, but permission was refused on the papers  and at a hearing. The Appellant then appealed to  the Court of Appeal.


The relevant law:


Appendix FM– In order to qualify for leave under the “partner route” the Appellant had to satisfy paragraph EX.1, and specifically limb (b). This applies where:


“… the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK …, and there are insurmountable obstacles to family life with that partner continuing outside the UK”.

Paragraph 276ADE – The relevant provision of paragraph 276ADE is sub-paragraph (1) (vi) which applies where an applicant has lived continuously in the UK for less than 20 years and “there would be very significant obstacles to their integration in the country of return”.

Whether previous caselaw had  properly interpreted   the phrase , “very significant obstacles to integration


The Court of Appeal did not consider that there had a been a proper  judicial stab  as to the meaning and construction  of  this phrase in its proper context.


The Court in Parveen noted that the meaning of the phrase “very significant obstacles to integration”,  was considered  previously by  the Court of Appeal  not  in paragraph 276ADE (1) (vi) but as it appears in paragraph 399A of the Immigration Rules and in section 117C (4) of the Nationality Immigration and Asylum Act 2002, which relate to the deportation of foreign criminals. In Kamara v Secretary of State for the Home Department [2016] EWCA Civ 813, [2016] 4 WLR 152, Sales LJ said, at paragraph  14 of his judgment:


“In my view, the concept of a foreign criminal’s ‘integration’ into the country to which it is proposed that he be deported … is a broad one. It is not confined to the mere ability to find a job or to sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a court or tribunal simply to direct itself in the terms that Parliament has chosen to use. 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 Court in Parveen considered however that the passage focused more on the concept of integration than on what is meant by “very significant obstacles”.


Reference was  also made to  Treebhawon v Secretary of State for the Home Department [2017] UKUT 13 (IAC). At paragraph 37 of its judgment the Upper Tribunal  said:


“The other limb of the test, ‘very significant obstacles’, erects a self-evidently elevated threshold, such that mere hardship, mere difficulty, mere hurdles and mere upheaval or inconvenience, even where multiplied, will generally be insufficient in this context.”


The Court of Appeal  did not find that a very useful gloss on the words of the rule. The  words “very significant” connote an “elevated” threshold, and  the test will not be met by “mere inconvenience or upheaval”.  The Court  however  did not agree with saying that “mere” hardship or difficulty or hurdles, even if multiplied, will not “generally” suffice added  anything of substance.  It was considered that the task of the Secretary of State, or the Tribunal, in any given case is simply to assess the obstacles to integration relied on, whether characterised as hardship or difficulty or anything else, and to decide whether they regard them as “very significant”.


Why the Secretary of State  refused the application:


The material part of the Secretary of State’s decision letter stated as  follows:


  • It is not accepted that there would be very significant obstacles to your integration into Pakistan, if you were required to leave the UK. Whilst it is accepted that you may have some initial difficulty upon your return to Pakistan, it is noted that you are a healthy female aged 42 and whilst the material quality of your life in Pakistan may not be at the same level as it is in the United Kingdom, this does not give rise to any right to remain here. ……….Although you may experience a degree of temporary hardship, it is expected that these difficulties could be overcome, bearing in mind your common language and in particular, your familiarity with Pakistani customs and culture. Having spent 27 years in your home country and in the absence of any evidence to the contrary, it is not accepted that there are significant barriers preventing you from returning and integrating to your home country and therefore the Secretary of State is not satisfied that you can meet the requirements of Rule 276ADE(1)(vi).”


The problem with the original application  prepared on the  Appellant’s behalf:


The following criticism are evident from the Court of Appeal’s judgement:


  • The application form itself, was considered to contain nothing of substance.

  • The covering letter from  the solicitors did not in fact rely primarily on paragraph 276ADE, formulating the claim rather as being based on Appendix FM, alternatively on article 8 outside the Rules.

  • The covering letter summarised the Appellant’s immigration history and developed  at some length, with almost no particularity, on the degree of her integration into British society, the depth and extent of her friendships and social networks, and her law-abidingness and positive contributions to society; on the basis of all of which it was  said that her life would be turned upside down by having to return to Pakistan.

  • Despite one passing reference to paragraph 276ADE, there was no explicit attempt to address the requirements of sub-paragraph (1) (vi)

  • The legal representatives sent a short pre-action protocol letter, the gist of which was that “exceptional and compelling circumstances have been set out in [the original application]” and that they should have led to a grant of leave. Nothing was said about paragraph 276ADE (1) (vi) and no new factual material was submitted.

  • In reference  to how the inadequately prepared application affected Counsel’s submissions, the Court of Appeal noted that   “ there was almost no straw in the original application with which he could make the necessary bricks”.



What needed to be shown for the application to have some chance of success under the Rules:


The Court stated as  follows:


  • The starting-point must be to identify the evidence put forward by the Appellant in her initial application to the Secretary of State which might potentially show the existence of very significant obstacles to her reintegration in Pakistan.

  • It was observed that the argument on the Appellant’s  behalf was that the  covering letter satisfied the requirement under paragraph 276ADE (1) (vi) to show very significant obstacles to the Appellant’s reintegration in Pakistan, or in any event that it required a more elaborate assessment than was given in the passage from the decision letter.  The Court of Appeal  however could  not accept that submission. It was considered that the bare assertion that the Appellant had “lost all connections” with Pakistan and had no-one there who  could support her was  plainly insufficient,

  • If that was indeed the case, the Secretary of State was entitled to expect some particularised explanation of how it had come about, and why, in consequence, she would face such problems on return. The Court of Appeal stated the following considerations would apply:

  • It would be important to know about the Appellant’s  life in Pakistan before she came to this country, where she lived, what family and friends she had, whether she worked and what her educational or other qualifications were.

  • It would also be important to know what had become of her family and friends and how, despite what the Secretary of State tends to call “modern methods of communication”, she had lost touch with them.

  • The Court observed that nothing of this kind was provided in the original application, nor was it  provided at any stage in the course of the litigation. Without it, the Secretary of State was justified in finding that the Appellant had not demonstrated the existence of very significant obstacles to (re-)integration in Pakistan.


What needed to be shown for the application to have some chance of success outside  the Rules:


The Court of Appeal considered as follows:


The  Secretary of State must in principle consider whether, even if an applicant cannot satisfy the provisions of paragraph 276ADE or Appendix FM, he or she may nevertheless have a claim under article 8 “outside the Rules”.


The  real question in the case was whether the Upper Tribunal  was right to find that there was no arguable case that the Secretary of State had erred in rejecting the claim under article 8 outside the Rules.


Neither the Secretary of State nor the Upper Tribunal had been given sufficient evidence to make a properly informed decision.


The Court made it clear that in an  application of this kind  it would be  expected that  the Secretary of State would want to consider at least the following points:


(a) whether the Appellant would, if she had made an application before the expiry of her leave to enter in May 2001, have been entitled to leave to remain and, in due course, indefinite leave to remain;

(b) whether there was a good, or at least venial, reason for her failure to make such an application;

(c) whether she continued to satisfy the substantive requirements for leave to remain as a spouse; and

(d) whether it would cause real disruption for her to have to leave the country to make now from abroad the application that she should have made before 25 May 2001 and which would (if point (c) is correct) be certain to succeed.


The  Court stated that elements (a)-(c) were  simply not covered in the application or the subsequent evidence.


The Court did  not know why the Appellant did not apply for leave to remain before 25 May 2001.


It would still be material to know what the delays would be in making an application through the Entry Clearance Officer in Islamabad and what problems it might cause the Appellant (and her husband) for her (and perhaps him) to have to be away for that time.  The Court stated that it was simply not good enough to leave the Secretary of State, or  the Upper  Tribunal, in the dark on these questions.


The Court made it clear that it was not saying  that the Appellant would have to tick all of boxes (a)-(d) in order for it to be right for her to be granted leave to remain outside the Rules. However, if she could  do so  she would have a very strong case. It was  hard to see how it could be right to insist on the empty but disruptive formality of leaving the country in order to correct a venial administrative error made thirteen years previously.


The Court considered that the Appellant might  well have a good case for leave to remain outside the Rules, but she did not in her application give the Secretary of State the material with which to make an informed judgment. It was stated that if she applied  again, dealing fully with the circumstances of her case, the Secretary of State would no doubt give the application careful consideration.




When preparing  supportive representations  in an Article 8  claim, it is worthwhile  doing so seeking to ensure to a very  good degree that they will, where relevant,  withstand scrutiny in the higher  Courts.


Supplementing  upon  the evidence and the applicant’s circumstances  right until a decision is made by the Home Office, will assist in ensuring  a review intended to plug any deficiencies  related to  the application.


It is  regrettable that  just when it was thought the phrase “very significant obstacles to integration”, would elicit clear and firm guidance  from the Court  of Appeal, a not so strong case was chosen as the vehicle  through the Court  sought to put forward some seeming  half- finished guidance apparently  driven by the particular  circumstances of this case.


It  has been nearly 5years since the 2012 Rules  became effective.  The Court of Appeal’s guidance on the relevant  phrase does not appear  to be  too relevant as of wider applicability. Perhaps the  Upper Tribunal, in focusing upon an appropriate  future case  will  shortly delve further into the issues and provide more helpful  guidance.

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