Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002511

First-tier Tribunal No: HU/00756/2022
LH/00756/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 12 March 2025

Before

UPPER TRIBUNAL JUDGE HANSON

Between

TAO
(ANONYMITY ORDER MADE)
Appellant
and

SECRETAY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In person.
For the Respondent: Ms Rushforth, a Senior Home Office Presenting Officer.

Heard at Cardiff Civil Justice Centre on 21 February 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, TAO 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. TAO seeks permission to appeal a decision of a judge of the First-tier Tribunal (‘the FTT Judge’) promulgated following a hearing at Columbus House, Newport, on 22 December 2023.
2. TAO is a citizen of Nigeria born on the 24 February 1986, whose appeal came before the FTT Judge following an earlier appeal which was allowed by a different First-tier Tribunal Judge having been successful appealed to the Upper Tribunal, resulting in the appeal being remitted de novo on 25 August 2023.
3. The FTT Judge noted the agreed issues requiring determination at [11] in the following terms:

11. The parties agreed that issues for me to decide are as follows:

(a) Will the appellant be subjected to torture or to inhuman or degrading treatment or punishment? [Article3] The questions I need to ask are:

(i) Is the appellant a seriously ill person?
(ii) If yes, is there treatment available in Nigeria?
(iii) If yes, is that treatment accessible?
(iv) If treatment is not available or accessible would there be a serious and irreversible decline in the appellant’s state of health resulting in intense suffering or significant reduction in life expectancy?
(v) If so, has the respondent dispelled any serious doubts raised?
(vi) if not, whether the respondent has obtained assurances from Egypt as to available and accessible treatment on return.

(b) Alternatively, are there very significant obstacles to the appellant reintegrating? [276ADE(1)(vi)] (c) Would there be unjustifiably harsh consequences for the appellant should he be removed to Nigeria? [Article 8].

4. The FTT Judge noted a previous decision in relation to TAO which was considered in line with the Devaseelan principle.
5. The Judge notes TAO’s evidence is that he is not currently seriously ill although he has a history of multiple drug-resistant TB, has Hepatitis B and severe hearing loss which is being monitored by his local hospital, but for which he is not receiving treatment. The Judge therefore answers the first of the questions set out above, “is the appellant a seriously ill person” by finding that the evidence did not show that he is currently is a seriously ill person [32].
6. In relation to TAO’s subjective fear that if returned to Nigeria he will contract TB and because of his history of multiple drug resistant TB has a 50% chance of dying, the Judge having considered the evidence found that if TAO were to return to Nigeria he would take some steps to minimise the risk of contracting TB although he would not be able to return to live with family whilst his brother has an ongoing infection, but with the knowledge of the infection rates and that treatment is available he would not, in reality, withdraw completely from society to avoid infection [39].
7. The Judge finds little evidence to show TAO would not be able to access employment on return [38].
8. The Judge did not find TAO’s hearing loss would result in difficulties in accessing places of employment or lead to discrimination in the workplace and society in general, when mitigated by the use of hearing aids [39].
9. It was found TAO, on the balance of probabilities, will be able to find employment in Nigeria and therefore suitable accommodation within a short period of being in Nigeria [40]. That TAO, on the balance of probabilities, will be able to access financial and other support from the voluntary return scheme which is a relevant factor, as he will be able to access support from the scheme to enable him to be accommodated and be supported whilst finding employment, and that if TAO were to return to Nigeria he would have the right to work, assistance from the voluntary return scheme, and that his church would be able and willing to provide additional support whilst he re-establishes himself within Nigeria [42].
10. The Judge finds there are no very significant obstacles to TAO’s integration in Nigeria [46].
11. In relation to Article 8 ECHR, having weighed up the competing interests, the Judge does not find that those relied upon by TAO outweighed the public interest in removal sufficient to lead to unjustifiably harsh consequences and did not breach Article 8 ECHR [54].
12. TAO sought permission to appeal which was granted by another Judge of the First-tier Tribunal on 21 March 2024, the operative part of the grant being in the following terms:

2. The grounds of appeal have been prepared by the unrepresented appellant. The grounds are lengthy but two central complaints emerge. First, it is said that the judge was wrong to dismiss his case on the very significant obstacles Article 8 ground of appeal because his fears of re-contracting multidrug-resistant tuberculosis was founded on subjective rather than objective fears. The judge plainly addressed his mind to the objective information, the risks of reinfection and the likely implications for the appellant on return in the findings of fact. The judge has not gone into the same level of detail as is found in the grounds but this does not mean that the judge failed to consider this evidence, only that it was not found that it reached the ‘very significant obstacles’ threshold.

3. The second complaint has much greater force. At paragraphs 31-32, the judge found that appellant was not a seriously ill person because he was not receiving active treatment for his various conditions and was merely being monitored to guard against relapse. I consider it to be arguable that this was an overly narrow interpretation of “seriously ill” and did not take adequate account of the appellant’s evidence about his extreme vulnerability to reinfection – because of his existing conditions - on return to a country with a relatively high incidence of an airborne and highly infectious disease which he has already contracted twice before. It is to be noted that the appellant’s evidence was not meaningfully questioned in relation to his physical conditions and medical history. If I had considered the first ground in isolation, I would not be minded to grant permission, but the issues of an Article 3 breach of human rights on health grounds and the argued existence of very significant obstacles are so inextricably linked in this matter that I am minded to grant permission for both grounds to be argued.

4. I grant permission for both grounds to be argued.

Discussion and analysis

13. In the refusal letter dated 31 October 2019 the decision maker refers to TAO’s claim to have been diagnosed with Hepatitis B and to have requested evidence from his consultant which had not been received. There was not therefore before the decision-maker the extent of the evidence that is now available.
14. There is within the evidence a “to whom it may concern” letter which date cannot be identified although it is described as being page 2 of 2, which clearly relates to TAO as his name and residential address are provided. The relevant part of that document is as follows:

Diagnosis: multidrug-resistant tuberculosis - completed treatment March 2015
Hepatitis B positive - under surveillance for hepatocellular carcinoma
treatment for standard TB in Nigeria 2009 (nine months)
hearing impaired secondary to Amikacin
HIV-negative in 2011 and 2013
Malaria
Keloid scarring from Hickman line

No known drug allergies

No regular medication

This letter is following your request for an update regarding this patient’s clinical condition and risk were he to return to Nigeria.

TAO was treated in the UK for multidrug resistant tuberculosis. During treatment the antibiotics used damaged his hearing and he now has to use bilateral hearing aids. He completed his treatment in March 2015. He remains under follow-up in the Clinic to ensure he does not have a re-occurrence.

He also remains under the follow-up of my colleague, Dr Ch’ng for his chronic Hepatitis B infection and surveillance due to his risk of developing hepatocellular carcinoma.

Despite these health problems, TAO is working and contributing to the UK economy. I note the result of the Judgement on 7 January 2020 and that is appeal to remain within the UK has been declined. However, I also note on returning to Nigeria you will be expected to live with his brother who has multidrug resistant tuberculosis. I have medical documentation stating to the fact that TAO’s brother is not responding well to treatment. TAO would be at high risk of contracting multidrug resistant tuberculosis again should he share a home with his brother. Given that he has already been treated twice for tuberculosis in the past, including multidrug resistant tuberculosis, the risk of death from contracting this a third time would be at least 50%.

I would, therefore, support TAO’s application to stay within the UK, as sending him back to live with his brother in Nigeria could lead to a high risk of contracting multiple drug resistant tuberculosis and thus his death.

Yours sincerely

Dr Rhian Finn
Consultant Respiratory Physician

15. Following the hearing before me at Cardiff CJC TAO filed uninvited further submissions which amount to post hearing evidence. In the interests of fairness, a copy of that document was sent to Ms Rushford with a request her to confirm whether she had any objection to the evidence being admitted and, if she had no objection, whether she wished to make any response to the same.
16. In that document TAO sets out his further submissions in relation to the question of what makes a person a “seriously ill” person? The drug? Mobility? Type of sickness?
17. He writes:

Does having chronic HBV not make that person a seriously ill person. Whilst not having treatment now, I am being monitored closely by experts at the NHS, if this is not done the case of a serious illness, why would I have to be monitored to know when it’s best to start a treatment as the symptoms vary a lot. I believe the Home Office has limited the whole issue to just MDR-TB, but neglected and active serious illness which I have severe symptoms daily in Chronic BHV, which is a very significant factor for the doctors to decide I must not contact MDR-TB again, as it will now be very difficult to treat and yield not positive outcome.

I believe as part of the immigration criteria, a person will be considered seriously ill if returning them back to their country will cause a decline in their state of health or have significant risk in decline in health.

My return to Nigeria will put me at greater risk of contracting tuberculous is which will make treatment efforts futile due to my present condition of having Chronic Hepatitis B which is a serious illness. So I stand on my assessment of being a seriously ill person.

My case isn’t about the available treatment now, so we consider that the treatment in the UK is miles better and accessibility is poor in Nigeria.

But the point is, what is the essence of the treatment if the patient would not respond to it and eventually lead to death. That’s what the medical professionals and scientists have researched and come to the conclusion of the poor outcomes of taking another MDR-TB after relapse or re-contracting the disease. And even worse is the outcome for those who have comorbidity like me.

As such, I believe being seriously ill isn’t a case of taking drugs presently, but if they have life-threatening sicknesses which may even be at an early stage.

In terms of recontacting the disease, this is proven already with the position of Nigeria as a high burden TB nation, with very poor reporting and outcomes.. As such recontacting the disease is strongly correlated regardless of where I live in Nigeria.

So putting this together:

Contracting the disease in Nigeria will mean very slim chance of survival through any treatment available. And a high chance of – or very imminent.

I believe this is a significant obstacle and reaches the threshold.

I also reckon that the Honourable Judge will look at the peculiarities of this case outside that of established cases, as these cases have different sicknesses, and the modes of transmission, the high burden in the receiving country of venous significant mansions and factors here to consider….

As such I believe that having Chronic hepatitis B can be considered a seriously ill regardless of whether yakking treatment at the moment or not. As the doctors are still monitoring to determine when best to start to treatment and what type. Though this is not the major sickness in consideration (MDR-TB). It is a clearly established fact that I would re-contact MDR-TB if I returned to Nigeria due to the high burden which is also believed to be low reporting and actual is significantly higher than the current figures.

If I return, and contact TB again, treatments will be useless as medical and scientific evidence before the court clearly shows and Confirms poor outcomes for comorbidity, recontacting and relapse cases.

This means the Home Office would have to send me back to Nigeria knowing fully well I have recintact this disease, treatment will be ineffective, subjecting me a decline in deaths.

This is because though the poor medical conditions exist in Nigeria, they’ll be useless as the outcome for my kind of case, comorbidity and recontacting MDR-TB) are very poor with very little chance of surviving, which means

I would have been exposed to a serious, rapid and irreversible decline in my state of health resulting in intense suffering and to a significant reduction in life expectancy. This is to consider that I am only 38 I’m going to be 39 in three days time.

I believe substantial grounds have been shown for believing that I will be at imminent risk of dying, and would face a real risk if I returned to Nigeria.

So I’ll plead with the Honourable Judge to uphold my appeal. As I do not want to die.

18. Ms Rushford agreed to the statement being admitted on the basis TAO was unrepresented at the hearing, was lightly to have been stressed, as a result of which hr forgot to make the points he makes in the document.
19. I set out below Ms Rushforth’s reply below so TAO is aware of the comments that she has made in response to his late evidence:

In reply I would maintain the submission that the finding the FTJ made that the Appellant was not a “seriously ill person” was open to him on the evidence before him. The appellant accepts in this document that he is not having treatment now but being monitored, essentially as I argued at the hearing- he is not seriously ill but vulnerable to a disease. I would submit that in these circumstances the judge was entitled and correct to find he does not engage the test at the date of hearing. The test is merely is he a seriously ill person, not will he become one in future. As I submitted Article 3 is designed to be a stringent test and a high threshold, to open it up to those at risk of being a seriously ill person at an unidentified time in the future would be to make the test much broader than intended and to require Judges to engage in speculation, whilst the Appellant will be at an increased risk of contracting TB in Nigeria it is not certain that he will.

20. The fact the Appellant has an existing condition does not mean he is entitled to succeed that reason alone. As noted at [1] A.m. open Zimbabwe: “For the appellant is HIV positive. He is a citizen of Zimbabwe and his contention, which for reasons which I will explain has not yet been fully developed still less tested, is that, if deported to Zimbabwe, he would be unable to access the medication which, here in the UK, prevents his relapse into full-blown AIDS. So considerations of public policy on the one hand and of what is said to be private existential need on the other clash like warriors; and upon the courts lies a heavy burden in determining which should, under the law, prevail.”
21. It is also settled law, as noted in Ms Rushforth’s reply, that it is not enough for an appellant just to prove that they are ill, as the threshold requires a person seeking leave on the basis of an Article 3 medical claim to adduce evidence capable of demonstrating that there are substantial grounds for believing that Article 3 ECHR will be violated by reference to all elements of the required test.
22. TAO refers to both his hepatitis B, which is being monitored in the UK, and risk of contracting TB if he is returned to Nigeria.
23. If a person has a “serious illness” they must be a person who is suffering from a disease or health problem which either negatively impacts a person’s daily functional quality-of-life or can place significant strains on those looking after them. TAO does not currently suffer from any symptoms of TB but refers to the evidence setting out the rate of infection in Nigeria, available treatment, and the fact that it has been stated that if he contracted drug resistant TB in Nigeria he would face a 50-50 chance of death.
24. The standard of proof is on the balance of probabilities, i.e. it is more likely than not to occur, which would indicate a higher probability of it being something that would occur greater than 50%. It is also the case that it is not guaranteed, or has been shown to be reasonably forgeable, that if TAO is returned to Nigeria, he will contact TB. There are a number of factors increasing the risk of TB including poverty, malnutrition, overcrowded living conditions and those with immunocompromised states such as HIV/AIDS sufferers.
25. TB is an airborne condition which spreads once TB bacteria are released into the air when someone with infectious TB coughs or sneezes. The Judge did not materially err in law when identifying a number of options available to TAO to minimise the risk of him catching TB which can also include:

i) Good ventilation: as TB can remain suspended in the air for several hours with no ventilation

ii) Natural light: UV light kills off TB bacteria

iii) Good hygiene: covering the mouth and nose when coughing or sneezing reduces the spread of TB bacteria.

26. TAO also refers to his hepatitis B. It is not disputed that he has been diagnosed with the same.
27. It is accepted chronic hepatitis B can cause serious health problems, including liver damage, cirrhosis, liver cancer or in extreme cases death, and that there is currently no cure for hepatitis B, although there are medications that can make the virus inactive to ensure it does not spread.
28. TAO asserts the Judge failed to deal with his hepatitis B, but it is referred to in the evidence the Judge considered and the overall finding of the Judge is that TAO had not established that there will be a breach of Article 3 ECHR on the basis of any of his medical conditions.
29. I note a letter before the Judge from GIG Cymru (NHS Wales) dated 16 October 2019 addressed to “To whom it may concern” in the following terms:

This letter is following your request for an update on this patient’s clinical appointments. I have now had the opportunity to speak to Dr Chin Lye Ch’ng, consultant gastroenterologist/herpetologist regarding TIO’s care for his hepatitis. He feels that it is important that he be under frequent surveillance, which requires regular ultrasound as with his hepatitis status is at risk of developing hepatocellular carcinoma.

Therefore, in light of his ongoing health problems, I feel that it is important that we continue to monitor him regularly and see him in both the respiratory and hepatology clinics to ensure his continued well-being.

30. The evidence does not show that at the date of hearing before the Judge, or currently, TAO is seriously ill to the extent that he has a condition which satisfies the definition of the same, although it is accepted that he does have the conditions referred to in the evidence.
31. In any event, the Judge was right to set out and follow the required structure set out in AM (Zimbabwe).
32. Two questions emerge from AM (Zimbabwe) and Savan (app.no.57467/15)

i) Has the person discharge the burden of established that he or she is “a seriously ill person”?
ii) Has that person 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 intense suffering, or
[b] to a significant reduction in life expectancy”?

33. On the evidence before the Judge it cannot be said that the conclusion TAO failed in relation to the first question is a finding outside the range of those reasonably open to the Judge on the evidence. Whatever TAO fears about the future should he be returned to Nigeria; at the date of the earlier hearing he could not establish he is a seriously ill person.
34. That is a fundamental question because the other matters raised by TAO, that if he is returned to Nigeria the prevalence of TB rates of infection will be problematic for him, is only relevant if he is a seriously ill person and that as a result of being a seriously ill person he would face a real risk to the required standard as per AM (Zimbabwe).
35. The Judge’s finding, that although there may be risk it can be ameliorated by taking appropriate action, is a finding within the range of those reasonably open to the Judge on the evidence.
36. It is also important to remember the purpose of Article 3 of the ECHR which states “no one shall be subject to torture or to inhumane or degrading treatment or punishment”. The facts of Paposhvili v Georgia are noted in the judgement of the Supreme Court in AM (Zimbabwe) as being:

21. The principal feature of the applicant’s ill-health in the Paposhvili case was chronic lymphocytic leukaemia, from which he had suffered for ten years. He had undergone extensive courses of chemotherapy but after five years his level of leukaemia had risen from Binet stage B to Binet stage C and in 2014 a different course of treatment had been considered necessary. Short-term treatment with the medication Ibrutinib was prescribed for the applicant, in a dose costing about €6,000 per month; and the plan, in the event never implemented, was that the medication might swiftly improve his condition to the point where he could receive a donor blood stem cell transplant, at a cost of about €150,000. Shortly before the hearing in the Grand Chamber the applicant filed an up-to-date report by his haematology specialist. He explained that the Ibrutinib had stabilised the applicant’s condition; that, were it discontinued, he would be likely to die within six months; that the proposed donor transplant, albeit risky, offered the only prospect of a cure; and that neither Ibrutinib nor a transplant would be available to him in Georgia. The specialist also referred to a variety of collateral conditions from which the applicant suffered and which rendered treatment for his leukaemia even more difficult, including pulmonary tuberculosis, hepatitis C and a recent stroke which had permanently paralysed his left arm.

37. He was therefore suffering from serious ill-health, receiving ongoing treatment in the Member State, the withdrawal of which if he was deported would result in his death within six months with only one realistic prospect of effective care by way of a donor transplant. It was also recorded that neither the ongoing medication nor donor transplant will be available to him in Georgia. Those facts are materially different from those of TAO.
38. I therefore find TAO has not established legal error material to the decision of the Judge to dismiss the appeal pursuant to Article 3 ECHR.
39. In relation to paragraph 276 ADE (1)(vi) of the Immigration Rules, this was clearly considered by the Judge who finds that even weighing the points in TAO’s favour and the difficulties he will face in returning to Nigeria, they did not amount to very significant obstacles. That finding is tied in with the determination of the evidence made available to the Judge in relation to the medical issues and has not been shown to be a finding outside the range of those reasonably available. The Judge analysed the question of whether TAO had become so estranged from Nigeria that he would no longer be able to establish a meaningful life there but found that he would not.
40. The Judge also considered Article 8 ECHR finding that on balance the Secretary of State had establish the decision was proportion. That, again, is a finding within the range of those reasonably open to the Judge on the evidence.
41. TAO’s subjective fears about return in light of his health issues are understandable. He has been in the UK for a considerable time now but has no right to remain nor any right to access NHS treatment which will have come at considerable cost to an already stretched NHS.
42. TOA’s case cannot be that he satisfies the AM Zimbabwe Article 3 ECHR test as he clearly does not. It is that if he is returned to Nigeria and becomes infected by TB, in light of his history, it will result in his death. The evidence does not establish that he is likely to come into contact with the infected within the immediate future or that any infection would be more than likely to occur. If it did treatment is available in Nigeria and the 50-50 assessment of the possible consequences is, as noted above, not sufficient to discharge the burden of proof.
43. Similarly in relation to hepatitis B for which no treatment is available in the UK or Nigeria, the point is that TAO has a diagnosis that he can take with him which should enable him to register for such services that are available, including screening, in Nigeria. A lot of the work in the UK has been to monitor his position rather than treating the existing condition, in case a treatable illness develops threatening his overall health. It has not been made out the necessary screening or procedures would not be available in Nigeria if he suffered liver problems as a result of his hepatitis B or, in any event, that they are likely to occur in the foreseeable future as there is nothing from the medical team in the UK to provide any timescale.
44. In conclusion, whilst one understands TAO’s subjective fear and desires, he has failed to establish the decision of the First-tier Tribunal is outside the range of those reasonably available to the judge on the evidence. On that basis the appeal must be dismissed.

Notice of Decision

45. Appeal dismissed.

C J Hanson

Judge of the Upper Tribunal
Immigration and Asylum Chamber

4 March 2025