Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: JR-2024-LON-002983

21 April 2026

Before

UPPER TRIBUNAL JUDGE NEVILLE

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Between

THE KING
on the application of
DONA KRISHNA MONIQUE THILAKARATNE INDRAJITH
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Mr S Ahmed, counsel
(instructed by No 12 Chambers), for the applicant

Mr M Biggs, counsel
(instructed by the Government Legal Department) for the respondent

Hearing date: 22 January 2026

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J U D G M E N T

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What this decision is about
1. The applicant is from Sri Lanka and suffers from myeloma, a rare type of blood cancer. She was granted three periods of leave in the United Kingdom as a ‘visitor seeking private medical treatment’, during which time she has lived with her brother and his husband, who are both British citizens. On 22 March 2024 she made an application for a further period of leave, giving details of the stem cell and chemotherapy treatment that would shortly commence, as well as the support she would need from her brother during that time.
2. The respondent refused the application on 30 July 2024. As the application was also a claim that removal would breach the applicant’s human rights, the applicant would ordinarily have a right of appeal to the First-tier Tribunal (“FtT”) against its refusal. However, the respondent also decided that such an appeal would be bound to fail, so certified her claim as ‘clearly unfounded’. That certification means that the applicant has no right of appeal and the decision to refuse her claim is final.
3. I have decided that, when deciding to certify the claim, the respondent did not take into account material medical evidence and, even if she had not, that it was irrational to conclude that an appeal was bound to fail. The certification decision must be quashed and the respondent must look at the case again. The reasons for my decision are as follows.
Certification – principles
4. Pursuant to section 94 of the Nationality, Immigration and Asylum Act 2002, the respondent may certify a human rights claim as ‘clearly unfounded’. That requires that an appeal to a properly-directed FtT would be bound to fail or, in other words, cannot on any legitimate view succeed: ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6; R (FR (Albania)) v Secretary of State for the Home Department [2016] EWCA Civ 605.
5. On judicial review of a certification decision, the Tribunal’s role is still to consider the decision on conventional public law grounds, and it does so on the material that was (or should have been) considered by the respondent. Nonetheless, as held in ZL (Kosovo) v Secretary of State for the Home Department [2003] EWCA Civ 25 at [56], the test of being clearly unfounded:
“…is an objective one: it depends not on the Home Secretary's view but upon a criterion which a court can readily re-apply once it has the materials which the Home Secretary had. A claim is either clearly unfounded or it is not.
6. Certification requires that the claim be taken at its highest. This does not require the respondent or the Tribunal to accept every argument or asserted fact put forward by a claimant. Instead, the correct approach is to consider whether the material put forward is capable of being objectively well founded and sufficient to establish a claim: SP (Albania) v Secretary of State for the Home Department [2019] EWCA Civ 951.
Facts placed before the respondent
7. For the purposes of certification, the credibility and reliability of the applicant’s evidence is not in doubt. Taken at its highest, it can be summarised as follows.
The applicant’s cancer
8. In November 2021, the applicant was diagnosed with multiple myeloma for which she was treated in Sri Lanka with four cycles of chemotherapy; these finished in February 2022 and achieved remission. Monitoring and treatment continued once she was in the UK, for which the applicant paid privately.
9. The applicant applied on 12 September 2022 for leave to remain as a visitor seeking private medical treatment; leave was granted to expire on 28 February 2023. This was extended following further applications made on the same basis, the final grant of leave expiring on 25 March 2024. The latest application was made on 22 March 2024 and was later supplemented with further evidence prior to being considered.
10. Two UK-based consultant haematologists wrote letters that were provided in support of the application. A letter dated 26 April 2024 from Professor John Gribben includes the following:
She presented again in January 2023 when she fainted. It was then suggested that she had relapsed disease. She was found to have a translocation 414, which is associated with a poor outcome in multiple myeloma. Investigations performed at The Churchill Hospital in Oxford, confirmed that her myeloma had indeed relapsed and she started therapy with DVTD chemotherapy. She has now completed this treatment and done well.
Her disease will inevitably relapse and the treatment course would be for her to undergo an autologous stem cell transplant. This disease is life threatening if left untreated. The proposed treatment is to consolidate her treatment with collection of peripheral blood stem cells, high-dose Melphalan and autologous stem cell transplant. I confirm that we are able to offer the procedure here and they have sufficient funds for this to be undertaken. Thereafter, we would plan to consolidate that treatment with two further cycles of DVTD chemotherapy offered at 2 and 3 months following the process.
She requires approximately 6-8 weeks after completing the chemotherapy for her stem cells to be able to recover from the chemotherapy before we are able to collect healthy stem cells. I therefore anticipate that we would be looking to collect the stem cells in early July. We enclose the cost of the procedure and the family have been able to provide evidence that they are able to do this.
Dona will be severely immunocompromised by her treatment. She will require an approximate 3-4 week inpatient admission to the stem cell transplant unit at The London Clinic, to support her during the neutropenic phase. Thereafter, she will be very vulnerable to infectious complications and will require post-monitoring. At that point, she will be unable to travel. The short-term prognosis, as long as she is able to undergo this procedure, would be very good. We would require seeing her frequently, daily as an inpatient and then regularly thereafter, and weekly for her to receive the cycles of consolidation therapy at 2 and 3 months post-transplant. I anticipate, therefore, that she will be continuing treatment to complete, if everything goes smoothly, in December of this year. She will require help for everyday functions and it would not be safe for her to be living unsupported when she is in such an immunocompromised state.
11. While Professor Gribben describes this as the proposed treatment, a letter dated 21 March 2024 from Dr Jaimal Kothari, at Churchill Hospital, makes clear that this is the plan that will be begun from the date of that letter.
12. An undated letter from Churchill Hospital later notifies the applicant that her treatment will take place on specified dates in June and July 2024.
13. As to the treatment options in Sri Lanka, letters were provided from Dr Thanuja Dissanayake, a consultant haematologist based near Colombo, and the applicant’s General Practitioner, Dr Gunawardane. Both speak to problems with the availability of the constituent drugs used in DVDT chemotherapy, particularly daratumumab, and the availability of stem cell treatment. Reports of counterfeit medicine scandals in Sri Lanka were also provided.
Support in the UK
14. A supporting letter was provided from the applicant’s brother, with whom the applicant was living. He described the applicant as already having difficulty with day-to-day tasks, and that he and his husband had arranged their working hours so that one of them is usually at home to assist her. They had also moved house from London to Oxford so that they would be able to provide care and transport for her treatment. Details were given as to how they could meet the private costs involved from their earnings and savings. He states that the only family in Sri Lanka is his 79-year-old father and his sister; he did not consider either of them able to provide the applicant with the support she would need. He describes how his emotional support as her brother has also been vital for the applicant’s wellbeing.
The refusal and certification decisions
15. In assessing the applicant’s circumstances against the requirements of Appendix Private Life to the Immigration Rules, the respondent first concluded that she had not lived in the UK long enough to meet any of its temporal requirements. It was next decided that she had not established that there would be very significant obstacles to integration into Sri Lanka, no evidence being provided in support of her father’s ill-health or a lack of available support from other family members.
16. There were, the respondent decided, no circumstances that would render refusal of leave to remain a disproportionate breach of the applicant’s right to respect for her family and private life afforded by Article 8 ECHR. For reasons given later, removal would not breach Article 3 on medical grounds and therefore could not, without more, breach Article 8. The applicant had not demonstrated that her relationship with her brother went beyond that which ordinarily exists between adult siblings, so Article 8 was not engaged. The support he provided in this country could be provided in Sri Lanka, either directly or funded by the same means that meant he was able to afford private medical treatment. None of the evidence the applicant had provided indicated that she was currently incapable of looking after herself or that she depended on anyone else to look after her “day-to-day needs at this stage”.
17. The certification decision sets out that a human rights claim would be bound to fail. It is agreed that it should be taken as incorporating the preceding analysis of Article 8, despite making no reference to it. Addressing Article 3 on medical grounds, the diagnosis of myeloma was accepted. Nonetheless, reference to the respondent’s Country Policy & Information Note: Sri Lanka: medical treatments and healthcare – July 2020 (“CPIN”) showed that citizens of Sri Lanka receive free healthcare, including for cancer. The evidence did not support supply of counterfeit medication being widespread or systemic. The CPIN, and indeed some material submitted by the applicant, referred to a hospital that could provide treatment for cancer.
Consideration
The material before the respondent
18. In the conclusion to the certification decision, the respondent said:
Within Professor Gribben’s letter from 26 April 2024, it is stated that you completed your treatment and had done well. It was then stated that your diseases would inevitably relapse, and you would require stem cell treatment. However, you have not provided any new medical evidence since the date of this letter to suggest your disease has relapsed. Additionally, as demonstrated above, you would be able to continue treatment for your condition in Sri Lanka.
19. I agree with Mr Ahmed that (through the prism consideration of certification requires) this misunderstands Professor Gribben’s letter, which makes clear that stem cell treatment was urgently indicated now, rather than being something that would only be required following a future relapse. His reference to a completed treatment was to a previous round of chemotherapy. This is further made clear from Dr Kothari’s letter of 21 March 2024, which set out that the applicant’s cancer was “controllable with a complex programme of treatment which has been initiated about a month ago” and that the “Treatment Plan from 20 March 2024” was:
1. 12 further weeks of chemotherapy
2. Stem cell mobilisation
3. Autologous Stem Cell Transplant
4. Consolidation Chemotherapy
5. Maintenance Chemotherapy
20. This is consistent with Dr Gribben’s reference to waiting 6-8 weeks following chemotherapy before stem cell harvesting, and the subsequent appointment letter confirming that cell mobilisation would begin on 25 June 2024 and cell harvesting on 3 July 2024. The medical evidence before the respondent was capable of establishing that the treatment plan set out by Dr Kothari was already underway at the time the application was made, and that by the time the decision was made the stem cells had been harvested around three weeks previously. It can be seen from the evidence as a whole that transplant must follow soon afterwards and be followed up with more chemotherapy.
21. The misunderstanding that the proposed treatment would be in response to a future relapse likely explains the curious statement in the refusal decision that “the evidence you have provided does not indicate that you are currently incapable of looking after yourself or that you depend on anybody else to look after your day-to-day needs at this stage.” The letter from the applicant’s brother instead stated the applicant’s treatment had already required support with day-to-day tasks and for he and his husband to arrange their hours so that one of them was usually at home. While the most intense dependency would occur following transplant, the evidence was capable of persuading the FtT that it existed already – indeed, that would likely be a possibility in relation to anyone undergoing chemotherapy.
Article 3
22. The FtT would have to answer two questions in order to decide whether the applicant’s return would breach Article 3 on medical grounds:
a. Has the applicant discharged the burden of establishing that she is “a seriously ill person”? If so,
b. Has she adduced evidence capable of demonstrating that substantial grounds have been shown for believing that as a seriously ill person he or she would face a real risk:
i. on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment,
ii. of being exposed
1. to a serious rapid and irreversible decline in her state of health resulting in intense suffering, or
2. to a significant reduction in life expectancy.
23. Plainly the nature of the applicant’s cancer is that she might succeed in showing that she is a seriously ill person. While Mr Biggs is right that nowhere is it spelled out exactly what will happen to her if her treatment suddenly ceases, and clearer medical evidence would benefit the presentation of her claim overall, Professor Gribben does describe myeloma as “life threatening if left untreated”. The FtT would be entitled to draw on its own common sense understanding of conditions such this to decide by reference to all the evidence whether the applicant had discharged her burden of proof on the first question.
24. In relation to the absence of appropriate treatment in Sri Lanka, Mr Biggs took me on a detailed tour of the medical evidence in an attempt to show that nowhere had the applicant evidenced that she would not be able to access daratumumab – this was put forward as being unavailable in government hospitals, but the applicant is a private payer. I consider the evidence in the CPIN and in the letters from the Sri Lankan medical professionals to be in conflict. The former states that cancer treatment is available and that the Apeksha hospital is a centre of excellence that can provide appropriate treatment. Dr Gribben’s understanding from an (undisclosed) letter he had received from the applicant’s current hospital was that it was unable to provide the treatment she needs, and Dr Dissanayake wrote that autologous stem cell transplantation is only available in the Apeksha hospital after a long waiting list. There is also evidence that other DVDT constituent drugs can face supply problems. This is a conflict that should be resolved by the FtT. While the applicant is, on the current medical evidence, unlikely to be successful in establishing a lack of appropriate treatment, I apply this Tribunal’s specialist expertise and experience to conclude that she is not bound to fail. I would reach the same conclusion were it not for the respondent’s misunderstanding of the medical position.
Article 8
25. While strictly unnecessary given my conclusion on Article 3, I next turn to whether the applicant might succeed before a properly directed FtT in showing that Article 8 is engaged by the relationship with her brother and that removal would be disproportionate.
26. The correct test to apply to determine if there is family life between adult siblings under Article 8 was recently addressed by the Court of Appeal in R (IA) v Secretary of State for the Home Department [2025] EWCA Civ 1516. At [10], the Court endorsed the requirement for “additional elements of dependence, involving more than the normal emotional ties” set out in the Strasbourg case of Kumari v. The Netherlands 44051/20.
27. Mr Biggs referred to the examples of relationships given in Kumari as apt to engage Article 8(1), such as at [38]:
38. In cases where adults had a physical or mental disability or illness of sufficient seriousness and were in need of constant care and support from other family members, the Court has accepted such dependency (see, for instance, [Emonet v. Switzerland 39051/03, 13 December 2017 at [37]], in which an adult child became paraplegic after a serious illness; [Bierski at [47]], in which an adult child suffered from Down syndrome and was fully incapacitated …].
28. He emphasised the word constant in that extract to argue that the relationship here fell short of what was required; the dependence claimed was episodic and, at the time of decision, contingent upon the start of the proposed treatment.
29. The contingent nature of the treatment falls away because the evidence was capable of showing that treatment was underway. Furthermore, as held in IA:
125. In our judgment, it is undesirable to lay down hard and fast rules as to how the additional elements of dependency test should be applied. It obviously requires some dependence, and dependence is more than the existence of support, even if that support is qualified by the adjectives real, committed or effective. Kumari makes clear that it is harder for adults to demonstrate the necessary dependency because family life is normally limited to the core cohabiting family. The examples in Kumari at [38]-[39] (see [50] above) make clear the kinds of physical or mental dependency that might qualify. They are not exhaustive, and dependency may take many forms, as Kumari at [37] and [41]-[43] also reminds us. So far as exclusive dependency is concerned, on the particular facts of that case, Alvarado made clear that it was not always required to establish family life. Moreover, whilst one person being completely dependent on another might normally satisfy the additional elements of dependency test, it is not the only way that the test can be satisfied as the cases we have cited demonstrate.
30. There is no bright line requirement for constant care, the Court of Appeal taking several opportunities to emphasise that the test is fact-sensitive and the examples in Kumari illustrative rather than conclusive. The applicant was living with her brother and his husband and being cared for by them, they had arranged their work to be at home for her and had moved house from London to Oxford to facilitate her treatment. The evidence submitted with the application showed that funding her private healthcare came at significant financial cost. These are circumstances recognised in IA as having potential relevance to whether there is family life, for example at [132]. It simply cannot be said that the relationship claimed by the applicant was, on any legitimate view, incapable of amounting to family life.
31. On proportionality, I was likewise referred to factors that the FtT would be bound to consider: any family life has been formed (or at least substantially developed) while the applicant's status is precarious; she does not meet the rules; she entered the UK for a temporary purpose. Again applying this Tribunal’s expertise and experience, these are insufficient to establish that her claim is bound to fail.
Conclusion
32. Notwithstanding the considerable shortcomings in the applicant’s evidence in support of Articles 3 and 8, her claim is not so clearly unfounded as to rationally permit certification under section 94. The decision to that effect must be accordingly quashed.
Postscript
33. A draft of this judgment was circulated in the ordinary way with a request that the parties agree any necessary amendments and a draft order. Unusually, nothing has been received on behalf of the respondent and nor was she represented at the hearing when judgment was handed down. Mr Ahmed, who did attend, told me that he had made appropriate efforts but there had been no reply. I did not consider it appropriate to postpone the handing down of judgment and made such order as I considered fit. Nonetheless, if something went awry such that the respondent has suffered injustice then a suitable application can be made for the Tribunal’s decision to be aside pursuant to rule 43.
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