Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-000400

First-tier Tribunal No: PA/50575/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 13th of March 2025

Before

UPPER TRIBUNAL JUDGE RINTOUL
UPPER TRIBUNAL JUDGE MANDALIA

Between

A K
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr T Jebb, instructed by JMS Solicitors
For the Respondent: Ms R Arif, Senior Home Office Presenting Officer

Heard at Royal Courts of Justice (Belfast) on 19 November 2024

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The appellant appeals with permission against a decision of the First-tier Tribunal (“FtT”) promulgated on 6 December 2023, dismissing her appeal against the decision by the Secretary of State to refuse her application for asylum and her human rights claim.
2. The appellant is a citizen of Zimbabwe born in 1966. Her case as put before the FtT is that she is at risk on return to Zimbabwe on the basis of her political activities. It is also her case that she is seriously ill and that to return her to Zimbabwe would be a breach of her Article 3 rights given that she would not be able to access the appropriate treatment with the result that she would be exposed to a serious, rapid and irreversible decline in her health resulting either in intense suffering or a significant reduction in her life expectancy.
3. The Secretary of State, relying in part on a previous decision by the FtT (“the first decision”), concluded that the appellant would not be at risk on return to Zimbabwe and does not qualify for refugee status. The Secretary of State considered the Article 3 claim made by the appellant and concluded, having had the regard to the expert report from Dr Hazel Cameron, and the test set out in AM (Zimbabwe) v SSHD [2020] UKSC 17, that the appellant’s removal to Zimbabwe would be in breach of Article 3.
4. That test, as summarised in AM (Art 3; health cases) Zimbabwe [2022] UKUT 131 is:

(1) Has the person (P) discharged the burden of establishing that he or she is “a seriously ill person”?

(2) Has P 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
[a] to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering, or
[b] to a significant reduction in life expectancy”?

2. The first question is relatively straightforward issue and will generally require clear and cogent medical evidence from treating physicians in the UK
5. In this appeal, the FtT heard evidence from the appellant. Having directed himself as to the law at [12] and noting the finding in the first decision that the appellant’s claims were inconsistent, implausible and fabricated [17], the FtT found that the appellant had not engaged in any political activity either in the United Kingdom or in Zimbabwe [25], and that she would have no fear of coming to the adverse attention of the government on return.
6. In assessing whether the appellant was a seriously ill person, the FtT set out her medical conditions [26], noted that she was in receipt of medication [27], and concluded that her condition was well-controlled, treatment for her condition being available in Zimbabwe.
7. Having considered the medical evidence in some detail [29] to [33], the FtT observed that no clinician had expressed the view that the appellant is seriously ill [33], or that she would not have access to the appropriate treatment.
8. The FtT addressed the expert report of Dr Hazel Cameron. The FtT did not accept that Dr Cameron’s report was of assistance, noting it dealt only with high-end cutting-edge treatment and investigation [37] and [39], concluding that full weight should not be attached to the report [39].
9. The FtT also concluded [41] that even if it were wrong, the appellant’s condition is not that of a seriously ill person and there was no medical evidence to suggest that she would become seriously ill. Any comment by the appellant to that effect is simply speculation by the appellant.
10. The FtT then went on to dismiss the appeal on all grounds.
11. The appellant sought permission to appeal on the grounds that the FtT had erred:-
(i) by referring to irrelevant decisions which were mischaracterised when making a direction as to the law at [12];
(ii) in failing to consider medical evidence, which was different from that before the first FtT at the time of the first decision;
(iii) asserting wrongly that the availability of medication and treatment for the appellant’s thyroid issues being available was not disputed by the expert report and in stating that the clinicians had not expressed likelihood that the appellant’s condition would develop into something more serious or life-limiting; and incorrectly stating that treatment for COPD is available in Zimbabwe as the evidence was that appropriate medical treatment and healthcare is more or less inaccessible to all but the elite in Zimbabwe who can afford private healthcare
(iv) in wrongly stating the clinicians have not expressed a fear that the appellant’s medical condition will deteriorate in the immediate or near future.
(v) criticising the expert report for concluding that the appellant would be exposed to a serious, rapid and irreversible decline in her health, which is not a conclusion she had reached and in criticising her for not interviewing the appellant when this was unnecessary;
(vi) in mischaracterising Dr Cameron’s report as dealing only with cutting edge treatment which was an interpolation on the part of the FtT, not something stated by the doctor;
(vii) taking watches and wrongly stating that she had not been to Zimbabwe; in concluding that there was no medical evidence to suggest the appellant would become seriously ill contrary to the evidence.
12. On 6 March 2024 Upper Tribunal Judge Blundell granted permission stating :
… Reading the decision as a whole, however, it is not arguable that the errors in that self-direction, such as it was, had any bearing on the dismissal of the appellant’s asylum claim.
I grant permission because it is arguable that the judge overlooked material evidence in considering the Article 3 ECHR claim on medical grounds. It is arguable, in particular, that the judge’s statement at [27], about treatment for thyroid issue, was at odds with what was said in the expert evidence. Whilst I doubt that there is a viable Article 3 ECHR medical claim disclosed on the evidence, the appellant was entitled to proper judicial scrutiny of the evidence and it is arguable that she did not receive it.
The Hearing
13. We heard submissions from both representatives. Focusing upon the appellant’s Article 3 claim and the test set out in AM (Art 3; health cases) Zimbabwe, we asked Mr Jebb to take us to the evidence indicating that a failure to treat the appellant’s conditions would lead to a serious, rapid and irreversible decline in her health. We also asked him to take us to the evidence as to the treatment that she receives, and which would not be available to her in Zimbabwe. Mr Jebb referred to two letters from doctors at the North Parade Medical Centre dated 18 February 2022 and 9 September 2020 (pages 175 and 176 of the consolidated bundle). The letter dated 9 September 2020 refers to the appellant being prescribed sertraline daily to treat her anxiety and depression which has “been exacerbated in recent months due to the uncertainty regarding her immigration status”. The letter also make reference to the appellant being prone to ‘serious chest infections’ and at risk of requiring hospitalisation should she develop the Covid-19 infection. The letter confirms the appellant remains under investigation for the possibility of ‘chronic mastoid infection’ and is debilitated by tinnitus. The letter dated 18 February 2022 refers to lung fibrosis arising from a previous TB infection, which “puts [the appellant] at increased risk of morbidity and mortality if she were to get a chest infection.
14. Mr Jebb submitted the FtT has simply not engaged with the medical report and this needs to be considered accordingly. He submitted further that the FtT simply did not engage with the evidence. When pressed, however, he was unable to take us to medical evidence expressing clearly a view that the appellant is seriously ill or any evidence capable of establishing the high threshold for an Article 3 claim is met.
15. Ms Arif submitted that the FtT’s findings regarding the expert report were open to him and were sufficient. In any event, any error is immaterial because there was simply no evidence to suggest that the appellant is seriously ill or that she would suffer a serious, rapid and irreversible decline in her health on return to Zimbabwe.
16. We reserved our decision.
The Law
17. In approaching the decision of the First-tier Tribunal, we bear in mind the principles set out in Ullah v SSHD [2024] EWCA Civ 201 at [26]. We also bear in mind Volpi v Volpi [2022] EWCA Civ 464 at [2] and HA (Iraq) [2022] UKSC 22 at [72]. The impugned decision must be read sensibly and holistically. When reading the decision, we are entitled to assume that the reader is familiar with the issues involved and arguments advanced. Reasons for the judgment will always be capable of having been better expressed and an appeal court should not subject a judgment to a narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract. 
18. We remind ourselves that the core issue in this case is whether the appellant meets the test set out in AM (Zimbabwe) as set out at paragraph [4] above. That is a high threshold, and we bear in mind that the first step is assessing whether an appellant is seriously ill.
19. We address first the initial ground noted by Judge Blundell.
20. We accept that at [12] the FtT did direct itself towards the decision in Karanakaran which was not relevant. Similarly, he refers to the decisions of Tribunals which were decisions of the Higher Courts and to an extent, with regard in particular to Karanakaran, these were not relevant. That said, in this case, the decision in Devaseelan was relevant given the earlier decision of Judge Grimes.
21. Whilst the FtT should not have made such errors, we are not satisfied that they had any material effect on the appeal. There is no specific challenge to its finding that, following the findings as to the appellant’s lack of credibility reached in the FtT’s first decision and the other evidence, or that the FtT erred in concluding that the appellant would not be at risk of persecution on return to Zimbabwe on account of her political beliefs.
22. We now turn to the FtT’s assessment of the medical evidence. While it would have been better to set out the relevant test (see [4] above), and dealt with points 1 and 2 in order, it is evident from the decision that the FtT had the test in mind given the references to serious illness and to the assessment of the evidence of what treatment is currently received and the availability of that treatment in Zimbabwe. It is equally clear that the FtT rejected the submission that that the appellant was seriously ill. Establishing that was a necessary first step in meeting the test but the grounds focus primarily on the second step.
23. We remind ourselves that it was for the appellant to demonstrate that she is seriously ill, and that this would usually require clear and cogent medical evidence from treating physicians in the UK.
24. We therefore turn to the medical evidence put before the First-tier Tribunal as set out in the appellant’s bundle and which was before Dr Hazel Cameron when she wrote her report.
25. With respect to lung problems there is a letter following a chest x-ray on 1 April 2019 indicating problems consistent with tuberculosis in the past. A further letter from a consultant at Belfast City Hospital of June 2019 confirms that the appellant had previously been treated for tuberculosis which records that she had stopped taking sertraline, being prescribed for depression, and that the x-ray showed fibrotic change consistent with the previous TB, an area of scarring which will never resolve but that “there is currently no evidence of any progression of symptomatic features of recurrent infection but she should monitor for sputum production, unexplained weight loss or change in cough, in which case she would require re-evaluation at a chest clinic.”
26. It appears also from a letter dated 21 February 2022 that the appellant has bilateral moderate sensory neural hearing loss, for which he has been fitted with a hearing aid. This is said to require regular assessment to monitor any change.
27. As Mr Jebb referred to, there is a further letter from the appellant’s GP of 18 February 2022 which records that:
“[The appellant] has lung fibrosis from previous TB infection. This puts her at increased risk of morbidity and mortality if she were to get a chest infection. She is at increased risk of hospitalisation particularly during the current covid-19 pandemic.
She also suffers from anxiety and depression which was made worse due to the ongoing fear of not being successful in her claim for asylum.”
28. A letter from 9 September 2020 says also that she is on sertraline to treat anxiety and depression and that she remains on thyroxin to treat an underactive thyroid. Much of the remaining medical evidence relates not to the appellant but to her mother and appears in the supplementary bundle.
29. It is apparent from this that the appellant receives sertraline for her depression, Thyroxine for an underactive thyroid and is simply monitored in respect of her lung fibrosis.
30. We conclude that, given the limited nature of the medical evidence, the FtT was manifestly entitled to conclude that the appellant is not seriously ill. Further, there is insufficient medical evidence relating to what would happen if she ceased to take thyroxin, nor that she requires any specific medical testing on a regular basis or what the consequences would be if this did not continue. Taken at its highest, the evidence relating to the lung fibrosis indicates that she may have problems in the future and that she needs to monitor her condition and seek a revaluation if, for example, she has a cough. Whilst it can reasonably be inferred that she is more vulnerable to lung infection as a result of the fibrosis and previous tuberculosis, there is insufficient evidence to show that she is receiving any treatment for this.
31. Much of Dr Cameron’s report refers to a lack of available treatment in Zimbabwe and high risk of infection and disease. She is not, however, a medical doctor and does not address the question of whether the appellant is seriously ill.
32. There is no reason to doubt Dr Cameron’s ability to report on the current situation in Zimbabwe and to record accurately what health treatment is available, including that the healthcare system has effectively collapsed. It is, however, difficult to attach any weight to Dr Cameron’s analysis of the appellant’s “thyroid disease”. The entire section on this issue from paragraphs 45 to 52, is predicated on the assumption that Parirenyatwa Hospital in Harare having no functioning nuclear medicine department is relevant to the appellant’s thyroid disease. It cannot be discerned that Dr Cameron spoke with anyone and explained that what is in issue here was an underactive thyroid, for which thyroxin is prescribed nor the basis on which [51] levels of TSH, T3 and T4 are required, and we note that a thyroid function test would cost between US$16 to US$35.
33. Similarly, it is difficult to see on what basis Dr Cameron was able to make an informed enquiry as to the availability of treatment and care for those diagnosed with lung disease given that in this case there is no indication that the appellant has a current condition requiring treatment.
34. Further, whilst we have no reason to doubt that there is a lack of mental healthcare support, it is difficult to see what the appellant requires given that she has at times given up taking sertraline of her own free will without this having serious consequences.
35. To conclude, although it would have been better for the FtT to set out the relevant test, and to address first whether the appellant is seriously ill, it is sufficiently clear from the findings at [29] that the FtT was aware that it was necessary to identify that the appellant was seriously ill. It was open to the FtT to note [33] that no clinician has expressed the view that the appellant is a seriously ill person, a finding consistent with the lack of medical evidence to that effect. That is a necessary first step in the test and the FtT gave adequate and sustainable reasons for finding that she is not; the appellant’s case simply falls at this first hurdle. The challenges to the assessment of the situation in Zimbabwe which relate to the further steps in the relevant test are therefore immaterial.
36. Accordingly, although the decision could have been better written and more focused, the challenges to the approach to the evidence are simply not founded and are irrelevant or immaterial.
Notice of Decision
1. Accordingly, for these reasons the decision of the First-tier Tribunal did not involve the making of an error of law and we uphold it.
Signed Date: 4 March 2025
Jeremy K H Rintoul
Judge of the Upper Tribunal