The Court of Appeal (CoA) has reaffirmed a high threshold for "very significant obstacles to integration," noting that life in Germany is not significantly different from life in the UK in the context of deportation appeals.
Background:
Mr. Ackom is a German national of Ghanaian heritage who has lived in the UK since age 7 (he is now 27) with his father and has no ties to Germany. Despite living in the UK for over 10 years, he did not apply for permanent residence prior to the UK's exit from the European Union (EU), and he made no application for leave under the EU Settlement Scheme (EUSS).
He appears to have led an entirely blameless life until the age of 23, and was working. In May 2021, he received a 12-month community order for possession of cannabis and dangerous driving. He completed the unpaid work requirements and attendance centre requirements of the community order. In September 2021, he was apprehended by the police in a car with some 40 wraps of cocaine and in April 2022 received a 49-month prison sentence for two counts of possession of cocaine with intent to supply, plus a consecutive 4-month sentence for possessing a bladed article.
On 6 August 2022, while he was serving the custodial term of the sentence, the Secretary of State served notice on the respondent of a decision to make a deportation order against him. His subsequent human rights claim was refused by the Secretary of State on 15 November 2022, and he appealed.
The First-tier Tribunal (FTT) allowed his appeal, finding he met the criteria of Exception 1 under Section 117C(4) of the Nationality, Immigration and Asylum Act (NIAA) 2002, specifically that there would be very significant obstacles to his re-integration into Germany. The Secretary of State argues the FTT Judge erred in finding "very significant obstacles.” The Upper Tribunal (UT), however, found no error of law in the FTT's decision, but the Secretary of State appealed to the CoA.
Decision:
The CoA, however, allowed the appeal on the basis that the Judge erred in law in not properly applying the Kamara test to the facts as found, or that if she did, she gave insufficient reasons for concluding that the test was satisfied in the circumstances.
Section 32 of the UK Borders Act 2007 ("the 2007 Act") concerns the automatic deportation of certain "foreign criminals". Section 117C(4) of the NIAA 2002 contains an exception to deportation when there is a sentence of less than four years and the person has been resident in the UK for a significant period of time. As Mr. Ackom was accepted to have been lawfully resident in the UK for most of his life, the issue turned on the question of whether he would face ‘very significant obstacles to integration’ upon removal to Germany. The leading case is Kamara v SSHD [2016], which lays down criteria for becoming ‘enough of an insider’. While the FTT listed some factors, the CoA noted that in AS (Iran) it was held that “it is possible for migrants with no ties to the country of destination, and no contacts there, and who cannot speak the language on arrival, to integrate and develop a private life there within a reasonable time; much will depend on the country and the nature and character of the individual concerned.” While those factors might suffice, they were not determinative, especially “given that the proposed country of return is Germany, and life in Germany is not significantly different from life in the UK.”
Implications:
This case provides crucial guidance on how the ‘very significant obstacle’ test should be applied in this new legal landscape, now that EU free movement rights no longer apply. The threshold of the test is very high, and hardship or inconvenience is unlikely to suffice. This will especially be true if the proposed country of deportation is a state with the same type of living situation. Courts are likely to consider factors like shared cultural norms, the prevalence of the English language, and the availability of welfare support as potentially mitigating these obstacles. Simply lacking ties or not speaking the language may not automatically meet the "very significant" threshold in an EU context.
Any person finding themselves in a similar situation will need to present a compelling and well-evidenced case that goes beyond simply stating the challenges of relocation. They will need to demonstrate, with specific reasons and evidence, why the obstacles they face in integrating into the proposed country of deportation are truly "very significant" and insurmountable, especially when the destination is within the EU.
