Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003525
UI-2024-003594
UI-2024-003843
UI-2024-003844

First-tier Tribunal No: HU/52900/2023 LH/01965/2024
PA/01570/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 1 July 2025

Before

UPPER TRIBUNAL JUDGE RASTOGI

Between

RS
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms E. Rutherford, Counsel instructed by Law and Justice Solicitors
For the Respondent: Ms R. Arif, Senior Home Office Presenting Officer

Heard at Birmingham Civil Justice Centre on 27 May 2025

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. By way of a decision sealed on 18 December 2024 I found an error of law in the decision of the First-tier Tribunal as a result of which I set it aside with some preserved findings. I append that decision as Annex 1 below. The error was in relation to the First-tier’s handling of the appellant’s mental health, in particular his suicide risk, and the impact of that on his Article 3 and 8 claims. The unsuccessful protection appeal was not infected by legal error and the findings in relation to that are all preserved.
The Hearing and the Evidence
2. At the remaking hearing, the appellant attended but a decision was made not to call him to give evidence. Although the psychiatric report of Dr Kaur dated 13 May 2025 said he was fit to participate and give evidence with some adjustments, Ms Rutherford explained that as per the appellant’s updating witness statement, he does not feel able to give evidence. Mr Arif indicated she was not intending to ask the appellant questions in any event, the questions she had were for his wife.
3. Otherwise, I had the benefit of the 517 page hearing bundle which included the bundles which were before the First-tier Tribunal plus the evidence admitted by virtue of a Rule 15(2A) application. I also had a supplementary bundle dated 13 May 2025 which contained Dr Khan’s second psychiatric report and the updating witness statements. Ms Arif had not received that bundle so I permitted time at the beginning of the day for her to read it. The appellant also uploaded two additional documents shortly before the hearing. The respondent had not filed any updated evidence and I reminded the parties that at the adjourned hearing on 11 February 2025, Mr Diwnycz had confirmed the respondent was not intending to do so and would rely on the evidence already filed in order to discharge any burden there may be on the respondent in the Article 3 claim. Ms Arif confirmed that remained the respondent’s position.
4. At the hearing, I heard evidence from the appellant’s wife and I heard submissions in respect of both parties. At the end of the hearing I reserved my decision which I now give. I will only refer to the evidence and submissions to the extent required to explain my decision to the parties, but I have taken into account all the evidence before me.
The Position of the Parties
5. The appellant arrived in the UK on 14 July 2005, aged 18, as a visitor. It is not disputed that he has remained here as an overstayer since the expiry of his visa on 1 January 2006. His parents have both died and he only has one sister in India who has her own health problems and travels between India and Canada. He does not dispute that he was working unlawfully for periods of time but, at some stage, he was given permission to work and he has been working since. In 2018 he met his now wife, Ms Tarnjit Kaur Dhaunchic. They celebrated their religious marriage on 16 November 2019 and conducted a civil ceremony on 18 July 2020. They live together in the West Midlands. Ms Dhaunchic is British. She was born and brought up here and all her family are here. Her mother has struggled since her husband died; she lives with her son in Slough but sees Ms Dhaunchic and the appellant regularly (about 3-4 times a month) and has daily contact remotely. Ms Dhaunchic is a great support to her as she was for her elderly grandmother who passed away shortly before the hearing. After the appellant was encountered in 2019, he claimed asylum. He also made an application to regularise his stay, relying on his marriage, but that was refused and dismissed on appeal on 31 March 2022. He made the present application on 20 April 2022 which was refused on 14 February 2023. The respondent’s refusals of his applications instigated the appellant’s mental health problems. In October 2023, he attempted to take his own life following which he was diagnosed with severe depression and anxiety. He has been treated for that since although he has got progressively worse. His wife is his main source of support and she ensures he goes to work each day as that has a positive effect of distracting him from his negative thoughts. She also encourages him with aspects of his daily living. He relies heavily upon her. She would not be able to relocate with him to India as she could not leave her family and life here. Her family is a significant support to her, particularly in light of her own mental health problems.
6. In the refusal letter, the respondent accepted the appellant met the relationship, language and financial1 requirements of Appendix FM to the Rules. However, as the appellant had overstayed in the UK, he was unable to meet all the suitability requirements. Therefore the respondent decided whether the appellant was able to meet paragraph EX-1 of the Rules but decided he could not as there were not ‘insurmountable obstacles’ to family life continuing in India. Furthermore, the respondent decided the appellant could not show ‘very significant obstacles’ to his reintegration into India (paragraph 276ADE(1)(vi) of the Rules). In the alternative, whilst recognising that the appellant’s wife could not be required to relocate to India, the respondent decided it was open to her to return with him temporarily whilst he applied for entry clearance as her spouse. The respondent’s position is also set out in significant detail in the respondent’s review dated 18 December 2023. Therein, in addition to the factors raised in the refusal letter, the respondent had regard to the appellant’s mental health conditions but relied on the Country Policy and Information Note India: Medical and healthcare provisions, April 2023 (“the medical CPIN”) to demonstrate that the treatment the appellant requires is available in India and there is insufficient evidence that the high Article 3 threshold is met on medical grounds. The respondent noted that if the appellant availed himself of the Voluntary Returns Scheme, appropriate support could be provided. Overall, the respondent did not identify any basis to conclude that requiring the appellant to return to India would be unjustifiably harsh on him or anyone else and was justified by the public interest in effective immigration control.
The Issues
7. It follows that the I have to determine the following issues:
a) Whether returning the appellant to India will breach his rights under Article 3 of the ECHR;
b) If not whether the decision breaches the appellant’s Article 8 rights.
The Legal Framework
8. As far as the Article 3 claim is concerned, the question is whether the refusal breaches the appellant’s Article 3 ECHR right not to be “subjected to torture or to inhuman or degrading treatment or punishment”. The appellant must establish that they are a seriously ill person and adduce evidence capable of demonstrating that substantial grounds have been shown for believing that as a seriously ill person they would face a real risk, on account of the absence of appropriate treatment or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in their state of health resulting in intense suffering, or to a significant reduction in life expectancy (Paposhvili v Belgium [2016] ECHR 41738/10 and AM (Zimbabwe) v SSHD [2020] UKSC 17 apply). See also para. [15] of the error of law decision at Annex 1 below.
9. The above test also applies to cases involving mental health, including in suicide cases, in relation to which the guidance identified at [26] – [31] of J v Secretary of State for the Home Department [2005] EWCA Civ 629 (as reformulated in Y (Sri Lanka) v SSHD [2009] EWCA Civ 362) applies (see MY (Suicide risk after Paposhvili) [2021] UKUT 232 (IAC)).
10. As for the Article 8 claim, the question is whether the refusal breaches the appellant’s right to respect for private and family life under Article 8 ECHR. That right is qualified. The appellant must establish on the balance of probabilities the factual circumstances on which they rely and that Article 8 (1) is engaged. If it is, then I have to decide whether the interference with the appellant’s right is justified under Article 8 (2). If an appellant does not meet the Immigration Rules (“the Rules”), the public interest is normally in refusing leave to enter or remain.
11. The appellant claims an ability to meet paragraph EX-1 (b) of Appendix FM, the relevant part of which says:
“(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen ….. and there are insurmountable obstacles to family life with that partner continuing outside the UK.”
12. The test for insurmountable obstacles as set out at paragraph EX-2. of Appendix FM says:
“the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very significant hardship for the applicant or their partner”.
13. The appellant also relies on paragraph 276ADE(1)(vi) of the Rules which does not require his removal if there are ‘very significant obstacles’ to his reintegration into India.
14. In Kamara v Secretary of State for the Home Department [2016] EWCA Civ 813, Sales LJ said at [14]:
“In my view, the concept of a foreign criminal's “integration” into the country to which it is proposed that he be deported, as set out in section 117C(4)(c) and paragraph 399A, 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.”
15. That passage was approved by the Supreme Court in Sanambar v Secretary of State for the Home Department [2021] UKSC 30 and in NC v Secretary of State for the Home Department [2023] EWCA Civ 1379, the same wording was applied to a case decided pursuant to para. 276ADE(1)(vi) in which Whipple LJ summarised the relevant principles including that the test goes beyond the appellant’s own perception of the obstacles and extends to all aspects of the appellant’s likely situation on return and any step that could be taken to avoid or mitigate the obstacles..
16. If the appellant does not meet the requirements of the Rules, there is an exception to the general rule set out at [10] above where refusal results in unjustifiably harsh consequences for the appellant or a family member such that refusal is not proportionate. In that part of the analysis, the factors set out in s.117B Nationality Immigration and Asylum Act 2002 (“the 2002 Act”) are to be taken into account and the public interest considerations are to be balanced against the factors relied upon by the appellant.
The Medical Evidence
17. Dr Farooq Khan, a Consultant Psychiatrist, produced two reports on the appellant. The first is dated 6 February 2024 and was before the First-tier Tribunal (the 2024 report). The second is dated 13 May 2025 and was described as being a second report in order to update the tribunal (the 2025 report). Although Ms Rutherford invited me to treat this as an addendum report, that is not how Dr Khan classified it and neither did Dr Khan say it had to be read together with the 2024 report. The 2025 report was a full report in its own right and contained all the same assessments and examinations as was carried out in the 2024 report including a re-assessment of the appellant’s current diagnosis. Of course, I have read and considered both reports. To the extent that they differ, I place greater weight on the 2025 report as it is that which informs the assessment of the appellant’s psychiatric presentation at the relevant date, namely the date of the hearing.
18. There was no challenge to the reports or to Dr Khan’s expertise. Ms Arif did make submissions as to the conclusions Dr Khan reached, when taken at their highest, and I evaluate Dr Khan’s conclusions below. Ms Arif conceded that the appellant was “seriously ill” for the purposes of Article 3. Both reports were prepared following a video consultation with the appellant. Dr Khan took a full history and conducted a mental state examination on both occasions. It is clear from both reports that the appellant presented as both subjectively and objectively low in mood and that he referred on both occasions as having thoughts about ending his life but that his wife is a protective factor. On each occasion Dr Khan noted that the appellant was diagnosed by his GP on 7 November 2023 as having severe anxiety and depression and he has been treated with medication and more recently with talking therapy. In both reports, Dr Khan noted that mental health treatment, including psychological treatment is generally available in India, although more so in urban centres.
19. In the 2024 report Dr Khan noted the appellant was prescribed 15mg of mirtazapine for severe depression and 10mg propranolol for anxiety [HB401]. By the time of the 2025 report the mirtazapine had increased to 45mg [SB9/17]. Furthermore, the applicant had also been receiving weekly input from the Sandwell Healthy Minds and Sandwell Talking Therapies which he reportedly found helpful [SB14]. However, Dr Khan was of the view that he also required Cognitive Behavioural Therapy (CBT) [SB17].
20. As for the diagnosis, Dr Khan’s assessment changed from the 2024 report where he diagnosed the appellant with ‘severe depression with suicidal thoughts and without psychotic symptoms’ [HB407] to the 2025 report where the diagnosis was ‘recurrent depressive disorder current episode severe without psychotic symptoms’ [SB15]. He did so after a detailed history was taken in which the appellant described numerous symptoms including low mood; tearfulness; fatigue; low self-esteem and self-confidence; lack of pleasure and motivation; thoughts of worthlessness, helplessness and hopelessness; negative thoughts including constant suicidal thoughts although capable of distraction at work; feelings of guilt and blame; some brewing signs of self-neglect although generally such tasks are manageable with reminders from his wife; gaps in attention span [SB7-8]. Dr Khan carried out a mental state examination in which he noted no apparent anxiety but the appellant appeared tired; his eyes were closing and his demeanour low; there was a paucity of responses and was slow to answer questions; he appeared objectively depressed; there were no concerns regarding his cognition; his mood presents consistently as low and there are risks of his depression declining further [SB12-15]. As for the diagnosis, although there is no reference in the title of the most recent diagnosis to suicidal symptoms (compared with the 2024 diagnosis), the explanation of the diagnosis includes as one of the symptoms “recurrent thoughts of death or suicide” and for a severe episode the explanatory comments say “many or most symptoms of a depressive episode are present to a marked degree” [SB15].
21. In this context, I found it puzzling that in contrast to the 2024 report, Dr Khan did not evaluate the appellant’s suicide ideation or risk to any significant degree. In the 2024 report, Dr Khan opined on the appellant’s prognosis, including with reference to his suicidal presentation which he described then as “serious”. He contextualised this with reference to the appellant’s suicide attempt in October 2023 which (as he described at para. 4.2) took place upon receipt of the refusal of his asylum claim. He went on to say “this can happen and is a significant event and his mental state needs to be taken seriously at this point in time” [HB410]. Dr Khan then proceeded to evaluate the risk and ruled out the previous attempt as merely impulsive, saying instead “I am of the opinion that it might be more protracted that that and he is harbouring these ideas. On speaking to him today, he has these ideas but does have a glimmer of hope that things might change but if the refusal comes and he is on his own, these ideas may be put into action. So currently I would say he is going through suicidal thoughts” [HB410-411]. When talking about risk at the point of removal, Dr Khan said in the 2024 report “the refusals which come in for his stay in the UK are quite domineering and strong for him to make attempts to take his own life which he said he would regret but would not have any option” [HB412].
22. In the 2025 report, Dr Khan dealt with this issue quite differently. He noted that the appellant “does get suicidal ideas and thoughts” although noted his wife as a protective factor which is why he says his “suicidal ideations have not been forthcoming and he has not done anything to harm himself” although he “thinks about it on a regular basis” [SB18]. At [SB13] Dr Khan says “she is a huge support for him regarding his suicidal ideas”. When talking about the risk on removal he said “if Mr Singh is returned to India, he told me that he would be better off ending his life here rather than being deported. He also said that in the previous interview in February 2024” [SB19]. Dr Khan continued “there might be a risk of suicide if a decision is made to deport him to India as he now has a family in the UK who is supportive. His wife is his main protective factor and if the decision is made to deport him he does not have any structure in India and that may instigate thoughts of self-harm and suicide”. He also opined that there should not be a problem accessing treatment in India but, if there was, “this will have a negative impact on (A’s) mental health and he will deteriorate further” [SB18]. The treatment the appellant requires may take 1-2 years to take effect [SB17].
23. In contrast to the 2024 report, by the time of the 2025 report, Dr Khan found the appellant fit to attend court and give evidence with reasonable adjustments in place [SB19-20]. Dr Khan did not expressly address what had changed in this respect since the 2024 report, but he did give a detailed explanation of why he decided the appellant could give evidence with the assistance of the adjustments.
24. Having read and evaluated both reports, I am satisfied that, notwithstanding the fact the appellant was being pharmacologically treated for his mental health in 2024, his symptoms were not improving so his medication was increased and he was referred for talking therapy. At the time of the 2025 report, the symptoms were such that Dr Khan’s diagnosis for him had changed and at the date of the hearing before me, I am satisfied his diagnosis is as per the 2025 report (see [19] above). I am satisfied that such a diagnosis includes recurrent thoughts of suicide which is consistent with the subjective history the appellant gave. It is not in dispute that the appellant is currently someone who is “seriously ill”.
25. I find that one factor leading to the difference in Dr Khan’s treatment of the appellant’s suicide risk is the passage of time since the October 2023 suicide attempt without further incident. I derive the basis for this finding from para. 14.12 of the 2025 report when Dr Khan seeks to explain why there has been no further attempts (see [22] above).
26. Nevertheless, Dr Khan has fallen short of offering a definitive opinion on the likelihood of the appellant attempting suicide if faced with the prospect of removal over and above reference to the appellant’s subjective indication that this is what he would do. I also find his report, taken at its highest, to fall short of explaining in any detail the way in which the appellant’s mental health would deteriorate on return, particularly if he were unable to access the appropriate treatment. I note that Dr Khan has not set out in his report any basis of expertise as to the availability of mental health treatment in India so, to the extent he makes comment about that, I am not able to attach any weight to those comments.
27. What is clear however, is that the appellant’s wife is a significant protective factor. That much is clear throughout both reports and is informed by the appellant’s own admissions. I am satisfied (and it was not disputed) that this is the case.
The Country Evidence
28. The appellant relies on the report of Professor Aguilar dated 6 February 2024 in which Professor Aguilar considered the provision of mental health treatment in India. The respondent did not expressly challenge Professor Aguilar’s expertise or the content of his report.
29. Professor Aguilar concluded that:
a) Given the need to have medical insurance in India and as the appellant is unemployed and has no family support, he may have no mental health care on return [HB421];
b) India has not developed a state service for mental health problems and an educational awareness of mental health problems and insufficient state funding for those without private means/medical insurance [HB422];
c) There is stigma/taboo attached to mental health in India so the extended family is relied on and, absent that, the appellant is likely to face social isolation and rejection [HB423].
30. Insofar as weight is concerned, I note Professor Aguilar’s report was not challenged. Nevertheless, taken at its highest, it makes certain assumptions such as the appellant not having support on return and being unemployed. Those are issues for me to determine on the evidence and to which I turn below. Furthermore, I find that at times Professor Aguilar strayed outside his expertise, such as at [33] when he opined that the appellant’s anxiety would be exacerbated upon return to India [HB423]. For that reason, I do not attach weight to those parts of the report where assumptions are made or where Professor Aguilar has strayed beyond his expertise.
31. The respondent relied on the content of the medical CPIN to demonstrate that there was appropriate treatment for the appellant’s mental health condition in India (even if not quite as good as here). The appellant also relied on parts of it to show that the provision of mental health treatment was patchy and at times inadequate, albeit as Ms Rutherford confirmed, it is not the appellant’s case that treatment is unavailable throughout India.
32. Notwithstanding the legal framework for the provision of mental health treatment [5.2], section [5.1] of the medical CPIN shows that mental health provision throughout India is limited in terms of healthcare professionals; institutions and beds although it is greater in urban centres than rural areas albeit most of the provision is concentrated within the private sector. There is a public hospital in New Delhi and some provision within government hospitals [15.2.4]. The stigmatisation of mental health is significant [5.4]. Some mental health helplines exist, some of which is free and some available for a fee and that includes for those feeling suicidal [15.5] and there are also community mental health services in 123 districts [15.2.4]. The CPIN recorded that they were unable to establish the availability of medication for mental health conditions [5.3].
33. The totality of the evidence reveals the shortcomings in the provisions. Most of the evidence deals with hospital provision. The only reference to provision in the community is at [15.2.4] which relies on a report from the World Health Organisation entitled ‘Indian Health Systems Review”. There is little detail about what is in fact provided save that there is a community provision in 123 districts through a “District Mental Health Programme, which integrates primary-level mental health care with support from local health teams”. It continues that “in other districts, mental health services are delivered by psychiatrists based at tertiary-level facilities”. Professor Aguilar says nothing specific about community provision and Dr Khan has not demonstrated expertise on the situation in India. None of the sources refer specifically to CBT which Dr Khan confirmed as the appellant’s next step in terms of recommended treatment [SB17].
34. I am satisfied that the country evidence in the medical CPIN is relatively concordant with that of Professor Aguilar. The medical CPIN is the more detailed document with reference to greater source material. In the event there is any divergence, I prefer the evidence in the medical CPIN.
35. Overall, I am satisfied that some state provision is available but it is mainly funded privately or through health insurance. Such provision includes in-patient and community care. There is better provision in urban areas, particularly New Delhi. None of the country or medical evidence to which I have been referred states expressly that the treatment the appellant requires on return is not available in India but the sources are silent on the availability of CBT. Both of the sources of country evidence however, note there may be problems accessing such treatment because of the stigma attached to mental health in India.
Discussion and Findings of Fact
36. There is very little in factual dispute in this appeal. It is rather the application of the facts to the applicable legal tests.
37. I note that when the First-tier Tribunal dismissed the appellant’s human rights claim in 2022, the judge did not find there to be any such obstacles capable of meeting the test in paragraphs EX-1/EX-2 [40] including a finding that the appellant’s health issues were alone capable of reaching the threshold of insurmountable obstacles (as the appellant then accepted) [35]. Neither did the judge find there to be very significant obstacles pursuant to paragraph 276ADE(1) of the Rules [45] or that the respondent’s decision to lead to unjustifiably harsh consequences in order to meet paragraph GEN 3.2 [41]. The judge found that it was open the appellant’s wife to accompany him to India or he could return alone until such time as he could apply for entry clearance to join her in the UK [44]. The judge found the respondent’s decision proportionate [46]. Applying the usual principles set out in Devaseelan (Second Appeals, ECHR, Extra-Territorial Effect) [2002] UKIAT 702, these findings represent my starting point.
38. Of course, I can always have regard to events which have occurred since the date of the previous decision. Since that date, the appellant and his wife’s family life has accrued another three years longevity as has his private life in the UK. Although there was medical evidence before the judge in 2022 as to the applicant having depression and anxiety from 2021, it is abundantly clear from the medical evidence before me that the applicant’s mental health has deteriorated since then.
39. I note that in advancing his case, the appellant has not expressly stated that he and his wife would be unable to afford to live and sustain themselves in India, including paying for medical treatment privately or for medical insurance.
The position of Ms Dhaunchic in the UK
40. In terms of her own mental health, Ms Dhaunchic accepted she has not returned to the GP since 2023 as she has prioritised the appellant’s recovery over her own, but she confirmed that she continues to take anti-depressants for her own mental health. A medical letter and an extract from her medical notes corroborate her diagnosis [HB500/503].
41. Ms Dhaunchic confirmed she and her husband both work full-time. She drops him at work and collects him. She cannot leave him at home alone. He continues to present as very unwell at home, barely speaking now. She derives significant support from her family to help her cope with this. Whilst it was pointed out that she does not live with any of her family members and, in fact, much of her contact takes place remotely, she said that it is the face to face contact which she really needs. She explained that when she breaks down it is her family who hold her. Her uncle only lives a 20 minute drive away (until recently he was much closer) and she sees her mother regularly and it is their support which enables her to support the appellant. She could not do the latter without the former. She was adamant that remote video contact would not be sufficient and she could not offer the appellant the same level of support without the back up and support of her family. They are the main reason she cannot relocate to India with the appellant albeit in her written witness statements she also referred to a lack of familiarity with India (and it being so different to where she has grown up and the fact that she has a condition which is intolerant to heat) [HB59].
42. I accept there is a fundamental difference between, on the one hand, contact almost always being remote and, on the other, regular albeit not constant contact in person supplemented by remote contact. I also note the family context Ms Dhaunchic faces, namely the passing firstly of her father, the impact of that on her mother and then the passing of her grandmother in circumstances where she cared for her grandmother (a factor not challenged). This paints the picture of a family with interconnected ties notwithstanding distance between some of them and the fact they are all adults. The respondent noted in her review that Ms Dhaunchic’s mother lives with one of her sons and she can rely on his support. That may be so. Ms Dhaunchic does not purport to be the sole source of support available to her mother and support itself comes in different forms. Her evidence was that she and her mother provide each other with emotional support for which regular face to face contact is required. I note that at the hearing in 2022, Ms Dhaunchic said that although her mother lived with her brother they do not have the same connection as she does with her mother [18].
43. It was during the appellant’s unlawful residence that he met and married Ms Dhaunchic. It is undoubtedly a risk to marry someone without status in the UK as there can be no real expectation of being able to continue the relationship here. Nevertheless, it has been a feature of Ms Dhaunchic’s witness statements that she does not understand why the respondent seems so intent on requiring the appellant to leave the UK when she cannot do so due to her family ties and life here. She finds this particularly egregious given the respondent permitted them to marry in the UK [HB61]. Whilst one may understand that sentiment, I find it to display a level of naivety about the importance which must attach to requiring people to abide by the Immigration Rules and the absence of a right to choose where to live as a married couple.
44. Nevertheless, overall I found Ms Dhaunchic a credible witness. I accept that her relationship with her own family is as she claims it to be. I find that, although they may not all live together, the extended family is one which assumes great importance to them all. I accept that they support each other in the way Ms Dhaunchic claims and that she particularly derives significant support from her family which, in turn, assists her to support the appellant. I am satisfied her need for support is heightened because of her own mental health problems and it is that which enables her to function at a level which affords her the resilience to deal with the appellant whilst also holding down a full-time job. I am further satisfied that it is as a result of her support that the appellant is able to maintain full-time employment.
The appellant’s private life
45. The appellant does not dispute his immigration history. He has lived here unlawfully for 19 years and 10 months at the date of the hearing and did nothing to try to regulate his status until after he was encountered in 2019. As at the date of the hearing, his life appears to centre around his wife and his job. A letter from the appellant’s employer confirms his employment started on 18 October 2021 [HB111] and a further letter confirmed that the company had loaned the appellant £2,000 to fund his application to the Home Office and the Finance Director added “it is important for us that we help support Ranjodh’s application in any way possible” [HB112]. They also added a very positive reference about the work he does and his character. This evidence was not challenged. Based on that evidence I am satisfied the appellant is valued at work. I am further satisfied the appellant’s employment is a significant stabilising factor as it provides him with structure and a distraction from his worries. Dr Khan was aware the appellant worked full-time but that factor did not cause him any express concern. In other words, he did not identify this as a factor which undermined the severity of the appellant’s mental health condition. In fact, Dr Khan noted the positive benefit going to work had for the appellant in that some of his work colleagues are amongst a very limited number of people the appellant enjoys seeing [SB12]. Otherwise, there is little if any evidence as to other elements of the appellant’s private life. Of course, the entirety of the appellant’s life here has developed when his stay has been precarious and, for the most part, unlawful.
The position of Ms Dhaunchic in India
46. The interplay between whether or not Ms Dhaunchic can relocate with the appellant and his Article 3 claim is an important one in this appeal. Ms Arif accepted the appellant is serious ill but the thrust of her submissions were that Ms Dhaunchic can accompany him so he can continue to live there as he is here with her. In other words, she can support him so that he can maintain some mental stability and obtain employment. The medical and oral evidence about the importance of the appellant’s wife in his life was strong. In my judgement, it is vital. It is clear from the medical evidence that it is the appellant’s wife who affords him not only protection from suicide (as and when such thoughts risk overwhelming him), but also supports his day to day living to give it a semblance of normality notwithstanding his severe mental illness. Furthermore, it is she rather than the appellant who advocates for him in order to access the mental health support he requires. I detail a recent example of this at [38] above.
47. Ms Dhaunchic has explained the toll this takes on her, at times overwhelming her. She cannot access support from the appellant for this particular stress so has to look elsewhere for it and it is her family to whom she turns. It is to be remembered that she is dealing with this against the backdrop of her own mental health challenges. Whilst it is not argued that the medication she requires is not available in India, that misses the point. She is medicated here, yet her evidence is that she still requires the support of her family to enable her to cope.
48. I have considered the impact on Ms Dhaunchic if she relocated to India with the appellant. Firstly she would be moving to a country in which she has never lived and of which she is not a citizen. It is right that she has visited it. In oral evidence she could not remember the last time she visited. I note that in 2022 she told the First-tier Tribunal she had only been to India 3 times, the last time being in 2017 with her father [17]. There was no challenge to her evidence that she has no family there and the only family otherwise is the appellant’s sister. In the event, she would also be relocating with the appellant who, at that point, it is reasonable to conclude based on the medical evidence, would be undergoing a form of mental health crisis in that he would be facing the very event which precipitated his mental health condition in the first place. She would need to deal with this in addition to managing her own reservations about relocating and facing life in a new country with this pressure and without her support system being on hand as they are for her here. It is reasonable to conclude that this is more than likely to have a detrimental impact on her own mental health.
49. Set against the background of the patchy availability of mental health treatment in India, Ms Dhaunchic will need to navigate this system in order to ensure not only that the appellant is able to secure the pharmacological treatment he requires, but also the therapeutic treatment. Even if they are able to live with the appellant’s sister and access funds from her or Ms Dhaunchic’s family back home, the system itself will still need to be navigated and the correct treatment secured. The finding of the previous judge in 2022 was that Ms Dhaunchic does speak some Punjabi [38]. In the event that the couple are unable to live with the appellant’s sister, they will also have to source for themselves some accommodation and, in any event, some employment. It may be the case that some of Ms Dhaunchic’s family members can accompany them temporarily to assist the transition. But, even if that were possible, at some point they will leave.
50. No doubt it is for these reasons Ms Dhaunchic has said she will not relocate with the appellant on a permanent basis. I do not doubt that she is serious about that. I am satisfied she would not. I am further satisfied that the obstacles she is likely to face in having to deal with the appellant in India without her support network are such that they are likely to prove overwhelming for her. I also have regard to [14.12] of Dr Khan’s 2025 report as to the appellant not wanting to do anything to upset his wife. I find that to place Ms Dhaunchic under such pressure also risks adversely impacting the appellant’s mental health.
Alternative support for the appellant in India
51. The respondent’s position is that the appellant’s sister would be able to provide such support either temporarily or permanently. The evidence about her inability to do so is lacking. Whilst the appellant has submitted some of her medical records, there is no statement from his sister about her situation in India. Furthermore, when asked about her in oral evidence, Ms Dhaunchic said that they last spoke to her a few days ago as she (the sister) had found out about the grandmother’s passing and rang to offer her condolences. This does not suggest a family member who is either remote or absent from the appellant’s life. She is sufficiently close to have found out about her sister-in-law’s grandmother’s death and sufficiently concerned to have made contact to offer her sympathies.
52. The medical notes reveal that in March 2025 the appellant’s sister underwent a cardiac procedure to insert some stents. The discharge summary notes that the procedure was successful and she was discharged in a stable condition and with dietary advice and exercise noted to be advisable. The hospital in question was situated in Jalandhar, Punjab. This evidence is not sufficient to satisfy me that the appellant’s sister is medically unfit to support the appellant and given what I set out above, I am also not satisfied the appellant’s sister lacks motivation to support the appellant. However, context is important. As it is not in dispute that as the appellant left India in 2005, it is at least 19 years since the siblings lived in the same country. Furthermore, the appellant’s evidence that his sister (when well) split her time between India and Canada was not challenged.
The appellant’s mental health
53. I have already dealt with the medical evidence about the appellant’s mental health. In Ms Dhaunchic’s oral evidence, she explained that since her grandmother’s recent passing, the appellant has deteriorated. Accordingly she contacted the mental health team again and managed to persuade them to depart from their own policy of not offering further counselling within 3 months of the last course ending. When she explained the severity of the appellant’s deterioration, they agreed to add the appellant to the waiting list once again for a further course of counselling. I find this unchallenged evidence to corroborate the appellant’s position that he is currently seriously mentally unwell as confirmed by Dr Khan’s 2025 diagnosis and as accepted by the respondent.
54. It is therefore in this context that the appellant would have to return to India. In the event he has to do so without his wife, his primary protective factor is absent. The appellant would be in a country he has barely lived in as an adult and which he has not visited for (now) 19 years. He does that against the backdrop of his mental health problems and he has to then navigate, alone, the obstacles outlined above [49]. I am satisfied he is mentally ill-equipped to do so. I am reinforced in this view by the fact that he is unable to advocate reliably for himself here and relies on his wife to do so for him. Equally, there are aspects of his daily living which present as a struggle for him and which his wife supports him with. It is possible that other arrangements could be made such as the appellant being supported by his sister and which may be available to him. However, I am satisfied that such an arrangement does not replicate the support the appellant’s wife provides to him and it would be a fragmented and more unstable level of support for him which is likely to negatively impact his mental health.
55. Against this backdrop, in light of the totality of the evidence, including both of Dr Khan’s reports, I am satisfied that if the appellant had to return to or remain in India without his wife (even if he were able to live at his sister’s), his mental health would deteriorate. It is the extent of that deterioration to which I turn next.
56. I have regard to the fact that there is a documented history of one suicide attempt which was the instigator for the enhanced mental health intervention the appellant has received here. That was triggered by a negative immigration decision and fear of returning. The appellant’s medical history is unchallenged. He has repeated his fear of returning in his most recent witness statement, prepared for the hearing before me, albeit he did not articulate the cause of that fear.
57. I am satisfied that the primary driver for any risk the appellant may face of suicide is his poor mental health against the backdrop of his subjective fear of return. In light of the preserved findings in the unsuccessful protection claim, I do not find I can attribute his fear to a well-founded basis, but his history supports the link between his fear and the deterioration in his mental health. It may also be the case, although I accept this was not ventilated at the hearing, that the appellant’s fear of returning to India includes, fear of leaving his life in the UK.
58. On the totality of the evidence available to me, in light of the appellant’s mental health diagnosis which includes ‘recurrent thoughts of death or suicide’ and in the context of the thought of returning to India and being removed from his life here, I am satisfied that on return to India there is a real risk that the appellant’s thoughts of suicide would increase. The protective factors which exist here and which Dr Khan recognised as protective, namely his wife and his employment, would not be present. In the context of the stigma which attaches to mental health in India and in light of the evidence of his symptoms which include lack of motivation and social withdrawal, and as it is his wife who advocates for him here, I am also satisfied that the appellant would struggle to access the treatment he requires.
59. Whether or not this deterioration will result in a completed act of suicide (or even an attempt) is problematic on the evidence available to me (see [26] above). Dr Khan does not address it in those terms. At its highest, he says it might instigate thoughts of suicide and he refers to the appellant’s self-reporting that he would do so but Dr Khan does not address this further. Neither does Dr Khan address the extent of deterioration of the appellant’s mental health, other than to express his generic opinion about deterioration and as to the risk of suicidal thoughts increasing.
Conclusions
Conclusions on the protection claim
60. Carrying forward the preserved findings from the decision of the First-tier Tribunal, the appellant is not a refugee and for the same reasons, neither does he qualify for humanitarian protection.
Conclusions on Article 3
61. Drawing this part of my analysis together, I am satisfied there are substantial grounds for believing that the appellant’s mental health would be adversely affected by him having to return alone to India and that includes an increase in his suicidal thoughts. But the evidence, particularly the medical evidence, has failed to set out what the consequences of that will or might be for the appellant. I find it is too much of a leap, absent expert medical opinion on the issue, for me to conclude that a general deterioration and an increase in suicidal thought gives rise to a real risk of suicide on return. Had the 2025 report been phrased in the terms of the 2024 report, that might have been different (see [21] above). It was no doubt open to Dr Khan to express the risk of suicide in that way had he felt it appropriate. But he did not do so.
62. For that reason, and bearing in mind the high threshold to be reached in Article 3 cases, I do not find that threshold to be met. I do not find the appellant has met the evidential burden upon him to show a prima facie breach of Article 3 on medical grounds including suicide. The appellant has fallen short of satisfying me that there is a real risk of suicide or of a serious, rapid and irreversible decline in his state of health resulting in intense suffering or to a significant reduction in life expectancy.
63. That does not mean to say that the appellant’s mental ill-health is not serious. It is accepted to be so presently and I find it will get worse if the appellant had to return to India, particularly if he had to do so alone. I will return to this in my discussion on Article 8 below.
Conclusions on Insurmountable Obstacles
64. As to whether or not Ms Dhaunchic could be expected to travel with the appellant, I return to my findings at [48]-[50] above and consider them within the context of the legal test contained within paragraphs EX-1 and EX-2 of Appendix FM.
65. Applying those findings, I have found that the very significant difficulties Ms Dhaunchic would experience in trying to manage the appellant’s mental health and her own, without the direct support of her family would be so overwhelming for her that she would not go. Her decision not to do so is not, alone, to be equated with there being insurmountable obstacles to family life continuing abroad. However, in this appeal, I am satisfied that the obstacles Ms Dhaunchic will face are sufficient, taken together, to enable the appellant to meet the high test envisaged in EX-2 and, therefore, paragraph EX-1 (b). There was no dispute as to the other requirements of Appendix FM so it follows that the appellant able to meet the requirements for leave to remain in the partner route of the Rules.
Temporary return to apply for entry clearance
66. The respondent accepted in the refusal letter that the appellant met the financial requirements then in force [HB447]. It is important to remember that this arose in the context of the MIR then in force. There is no updating evidence about Ms Dhaunchic’s earnings but in oral evidence she confirmed she still works full-time for the Department of Work and Pensions. On the evidence which was before the First-tier Tribunal, in 2023 her gross annual salary there was £28,117 (£883 short of the current minimum income threshold of £29,000 – Para. E-ECP.3.1). On the face of it, therefore, the appellant’s removal from the United Kingdom would not be temporary as the appellant would be unable to meet the requirements for entry clearance to be granted. Whilst taken somewhat out of turn, this deals with the second question to be asked in a case of temporary interference in Younas (section 117B(6)(b); Chikwamba; Zambrano) [2020] UKUT 00129 (IAC) and, applying the guidance contained at [94] therein, the Chikwamba principle is not relevant. In the alternative, if the appellant is now able to meet the MIR, then whether or not temporary separation represents a breach of the appellant’s Article 8 rights depends on both the engagement of Article 8, the strength of public interest in the appellant’s removal and the impact of temporary separation upon him and his wife (Younas [92]-[97]).
67. In her written evidence, Ms Dhaunchic said that temporary separation may be protracted (on the basis that there was no guarantee his application would be approved from the outset) and therefore both their mental health would be impacted [HB60]. There was no evidence before me as to the time an application for entry clearance is likely to take.
Conclusions on paragraph 276ADE(1)(vi)
68. The appellant has never lived in India as an adult and he has not returned there for over 19 years. That means that he does not have a familiarity with independent living there. Ordinarily, given the cultural and linguistic ties, that may not matter. Plenty of people relocate to foreign cultures without such ties and still manage to integrate. Indeed, the appellant did when he first arrived here. But the situation now is different. Without repeating what I have already said, I carry forward my findings as to the extent of support the appellant receives from his wife, his subjective fears, his mental health, the risk I have found to exist of deterioration in his mental health, and the country evidence as to the stigma which attaches to mental health in India. Taking all those factors into consideration, I find the appellant, now, is in a different position. Even in the United Kingdom, the medical evidence shows the appellant has withdrawn from most activities save work and that there is now only a limited number of people he enjoys seeing. I do not find it realistic that in his situation he is likely to be able to secure and retain work so as to use that as a way of integrating. I highlight my finding that if the applicant returned alone, he is not well-equipped to navigate the provision of treatment in India. In any event, the medical evidence shows that treatment may take 1-2 years to be effective.
69. Accordingly, I am satisfied the appellant would face ‘very significant obstacles’ to his reintegration in India if he were to return to India alone applying the guidance set out in Kamara and the other authorities to which I have referred above. Accordingly, he is able to meet the requirements contained within paragraph 276ADE(1)(vi) of the Rules.
Conclusions on Article 8
70. As the appeal can only be brought on human rights grounds, I return to the framework set out at [10] and [16] above. There is no dispute that the appellant has a family life in the UK with Ms Dhaunchic and a private life here of 19 years and 10 months duration (at the date of hearing). If he were removed from those lives then I am satisfied that would be an interference of such gravity that Article 8 is potentially engaged. The decision is otherwise lawful and it is was taken to pursue the legitimate aim of the economic interests of the country through effective immigration control.
71. On the basis the appellant is able to meet the requirements of paragraph EX-1 of Appendix FM and paragraph 27ADE(1)(vi) of the Rules, the public interest does not require his removal from the UK (TZ (Pakistan) and PG India [2018] EWCA Civ 1109).
72. In case I am wrong about paragraph EX-1/very significant obstacles, I consider the appeal in the alternative, having regard to those factors set out in section 117B of the 2002 Act. I do not discuss the individual factors in any great detail, as they have all featured elsewhere in this decision but I set them out conveniently using the balance sheet approach together with an indication of the weight which attaches to each.
73. In so doing, I remind myself that a claim on medical grounds which falls short of succeeding under Article 3 is unlikely to succeed under Article 8 unless it comes within the Article 8 paradigm and there are other factors which, taken together with the medical grounds, may give rise to an Article 8 breach (AA (Morocco v Secretary of State for the Home Department [2025] EWCA Civ 144 and GS (India) v Secretary of State for the Home Department [2015] EWCA Civ 40 apply).
74. On the respondent’s side of the balance sheet I place the following factors:
a) Effective immigration control is in the public interest. Therefore, the fact the appellant is unable to meet the requirements of the Rules (in this alternative scenario) and his very poor immigration history, characterised by him overstaying since September 2005, are matters of very significant weight;

b) The appellant has adduced evidence of his ability to speak English [HB159] and in the refusal letter the respondent accepted he met the English language requirements of the Rules [HB447]. This is a neutral factor;

c) The appellant appears to be financially self-sufficient through a combination of his and his wife’s income. In the refusal letter the respondent accepted he met the financial requirements of the Rules [HB447]. Even on the basis of the new MIR, the appellant remains self-sufficient. This is a neutral factor.
75. On the appellant’s side of the scales I place the following factors:
a) The interference with the family life enjoyed by the appellant and his partner. This is a factor to which only little weight can attach applying section 117B(iv) of the 2002 Act given that the relationship was formed when the appellant was here unlawfully. Nevertheless, it has now been subsisting for a period of 8 years and I find some weight must attach even though that is limited to little weight. Ms Dhaunchic is in the unenviable position of having to choose between her life in the UK with the support and protection that affords her and relocating with her husband;

b) The impact upon Ms Dhaunchic in the event they both return to India. I rely and adopt the findings I make [48]-[50] above in relation to Ms Dhaunchic. Even if the obstacles are not capable of amounting to insurmountable obstacles, the impact upon her of leaving her family and her life in the UK, relocating to India with the appellant and having to manage there with all that entails, in the context of her own mental health conditions without her support network, I find to be a factor to which some weight should attach (although I limit it as the situation arose from the relationship starting when the appellant was here unlawfully);

c) The interference with the appellant’s private life of 19 years and 10 months which has, at all times, been precarious. Again only little weight attaches (section 117B(v) of the 2002 Act applies). However, the weight I attach is to the very upper limit of that little weight spectrum2 given the very long period of residence in the UK, the fact the appellant has lived all his adult life in the UK and the evidence about the stabilising influence his (lawful) employment affords him in the UK;

d) The impact upon the appellant’s mental health of returning to India (even temporarily). I bring forward my findings under , in particular at [53]-[58], to this part of my decision. The impact on his mental health is likely to be significant as the medical and other evidence reveals that it will deteriorate even though it falls short of meeting the high Article 3 threshold. For completeness, I find that to be much the same if the appellant returns with his wife given the pressure on him of knowing the impact upon her or leaving her family and life in the UK which, based on the medical evidence risks negatively impacting his mental health. I find this a factor attracting significant weight;

e) The situation the appellant will face on return to India (even temporarily) even if falling short of ‘very significant obstacles’ (in this alternative scenario) and I bring forward my findings about that. There is the risk of double counting as there is an overlap with the appellant’s mental health. Accordingly, I place some weight on it but not as much as I would absent the risk of double-counting.
76. Whilst recognising the importance of the maintenance of effective immigration control and the egregious breach of it in this appeal, I am tasked with assessing whether a fair balance is struck and whether the respondent’s decision results in unjustifiably harsh consequences. Even in the alternative scenario of the appellant not meeting the requirements of the Rules, I am satisfied that the impact of the respondent’s decision on the appellant and Ms Dhaunchic is unjustifiably harsh when all the factors on the appellant’s side of the balance sheet are considered cumulatively and weighed against those on the respondent’s side. For completeness, even if this is a Chikwambe type situation (which for the reasons set out above, I am not satisfied it necessarily is), I still find the impact upon the appellant of temporary return to be unjustifiably harsh. For these reasons, I am satisfied that the respondent’s decision is a disproportionate breach of the appellant’s right to respect for his family and private life and it is unlawful pursuant to section 6 of the Human Rights Act 1998.
Decision
The appeal is dismissed on protection grounds.
The appeal is dismissed on Article 3 (medical) grounds
The appeal is allowed on Article 8 grounds

SJ Rastogi
Judge of the Upper Tribunal
Immigration and Asylum Chamber

28 June 2025
Annex 1 – Error of Law decision
1. The appellant appeals the decision of First-tier Tribunal Judge Russell (“the judge”) who dismissed his protection and human rights appeal by way of a decision dated 13 June 2024.
2. The appellant does not challenge the findings the judge made on his protection claim. The challenge is to the way the judge dealt with the appellant’s human rights claim (Articles 3 and 8). The appellant’s position is that he has been in the UK since 2005. His first asylum and human rights claims were refused and then dismissed on appeal in 2022. He lives here with his wife. His mother-in-law suffers from multiple medical conditions for which his wife provides care. The appellant himself has mental health problems which have deteriorated since his appeal was dismissed in 2022. The appellant’s position before the judge was that the combination of these factors meant there were insurmountable obstacles to family life continuing in India; very significant obstacles to his reintegration there; he was at real risk of his mental health deteriorating and of him ending his life such that Articles 3 and 8 were both engaged, and the respondent’s refusal of his human rights claim breached his rights as protected by those Articles.
3. The appellant’s challenge to the judge’s decision was on the following grounds (summarised):
Ground 1: in concluding there were no insurmountable obstacles to family life continuing in India the judge failed to consider all the relevant evidence and failed to give adequate reasons for his findings;
Ground 2: the judge erred when considering whether there are very significant obstacles to the appellant’s reintegration into life in India;
Ground 3: the Article 3 assessment was flawed as the judge erred in failing to consider the expert evidence that the appellant was a suicide risk.
4. Initially, First-tier Tribunal Judge C. Scott only granted the appellant permission to appeal on Ground 3. However, Upper Tribunal Judge Gill granted permission on the remaining grounds.
5. The error of law came before me as a hybrid hearing, with both representatives appearing over the CVP platform. I has the benefit of a 502 page hearing bundle, plus the Rule 24 notice. I heard submissions from both representatives and at the end of the hearing I reserved my decision.
Discussion and Conclusions
6. In the Rule 24 Notice, the respondent set out in some detail the respondent’s opposition to the appeal in relation to Ground 3 which, at the time, was the only ground for which permission was granted. At the hearing before me, Mr Diwnycz did not resile completely from the position set out in the Rule 24 Notice, but observed that there may be an error in the way in which the judge dealt with the suicide risk. If so, he accepted it would infect the balance of the reasoning within the Article 8 assessment.
7. The judge was aware that the appellant raised Article 3 [8]. At [20] of his decision, the judge set out the law in relation to Article 3 health cases. At [27] the judge made reference to the report of Dr Khan, a Consultant Psychiatrist, dated 6 February 2024 and at [8] and [31] the judge noted the link between the claim on medical grounds and the ‘insurmountable obstacles’ and ‘very significant obstacles’ tests. At [9] the judge said this:
“I accept the conclusion of Dr Khan that the Appellant is suffering from Severe Depression with Suicidal thoughts and without Psychotic Symptoms”.
8. The judge then evaluated the evidence of the family dynamics and alternative care for the appellant’s mother-in-law before concluding at [33] that there are no insurmountable obstacles to the appellant’s wife moving with him to India.
9. Turning to the medical provision in India, the judge decided only limited weight attached to the country evidence of Dr Aguilar as he is not a medical professional; he referred to the Country Policy and Information Note in conjunction with Dr Khan’s evidence as to what treatment the appellant is currently on (or should be on) and its availability in India. The judge also evaluated the appellant’s circumstances in the UK and on return to India including that he would return to India with his wife who could provide him with support. The judge did not find there to be very significant obstacles to reintegration [41].
10. The judge then turned his attention to Article 3 and said this:
“42. As I have found the Appellant’s medical condition does not amount to very significant obstacles to integration, I also find that his return would not meet the much higher standard set out in AM (Zimbabwe) v SSHD [2020] UKSC 17.

43. Whilst the Appellant may struggle to access counselling there is no evidence before me that he will be unable to access anti-depressants (or equivalents) with which he has been managing up to the present date. His mental health is not so precarious that lack of counselling will create a real risk of a serious, rapid and irreversible decline in his state of health.”
11. Finally the judge decided at [44] that the appellant could not show that the respondent’s decision led to unjustifiably harsh consequences for the appellant or his wife and having carried out a balancing exercise concluded at [49] that the respondent’s decision was not disproportionate.
12. I have set out above the critical part of the judge’s decision. In order to evaluate whether the way the judge dealt with the appellant’s risk of suicide was adequate or otherwise free of legal error, it is necessary to consider what Dr Khan actually said about the appellant’s mental health and crucially his risk of suicide. At 14.14 of his report, Dr Khan said:
“Mr S is presenting with suicidal ideas and thoughts. He does not have any plans of execution for now but it is quite linked to his status from the Home Office and the refusal to Appeals that have happened before which triggered his suicidal idea and plan to implement it. It appears to be impulsive on the face of it, but I am of the opinion that it might be more protracted than that and he is harbouring these ideas. On speaking to him today he has these ideas but he does have a glimmer of hope that things might change but if the refusal comes and he is on his own, these ideas may be put into action, So currently I would say that he is going through suicidal thoughts”.
13. At 14.17 Dr Khan said:
“I have highlighted that in the body of my report that he will remain at risk to self harm and suicide, and there is a clear indication with the incident on 25th October 2023 when he tried to take Paracetamol tablets but was found and saved by his wife It was only a matter that he would not be discovered or found that he might attempt it again. He has said that his wife means a lot to him and he loves her dearly and she is a protective factor, but the refusals which come in for his stay in the UK are quite domineering and strong for him to make attempts to take his own life which he said he would regret but would not have any option”.
14. The judge did not expressly refer to either of these paragraphs. In fact, aside from his reference at [9] (see [7] above), the judge did not refer to the appellant’s risk of suicide at all.
15. As the judge recognised, in Article 3 health cases, the leading authority in domestic legislation is the Supreme Court decision in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 and in European jurisprudence in Paposhvili v Belgium (41738/10) [2017] Imm A.R. 867. A useful explanation of the test is found in AM (Art 3; health cases) Zimbabwe [2022] UKUT 00131 (headnote 1 and 4 and [22-23] and [28]) as follows:
“1. In Article 3 health cases two questions in relation to the initial threshold test emerge from the recent authorities of AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 and Savran v Denmark (application no. 57467/15):

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

b. 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.

3. The second question is multi-layered. In relation to (2)[ii][a] above, it is insufficient for P to merely establish that his or her condition will worsen upon removal or that there would be serious and detrimental effects. What is required is “intense suffering”. The nature and extent of the evidence that is necessary will depend on the particular facts of the case. Generally speaking, whilst medical experts based in the UK may be able to assist in this assessment, many cases are likely to turn on the availability of and access to treatment in the receiving state. Such evidence is more likely to be found in reports by reputable organisations and/or clinicians and/or country experts with contemporary knowledge of or expertise in medical treatment and related country conditions in the receiving state. Clinicians directly involved in providing relevant treatment and services in the country of return and with knowledge of treatment options in the public and private sectors, are likely to be particularly helpful.

4. It is only after the threshold test has been met and thus Article 3 is applicable, that the returning state’s obligations summarised at [130] of Savran become of relevance - see [135] of Savran.”
16. Nowhere in the decision does the judge expressly address the question of whether or not the appellant has shown that he is a “seriously ill person” (headnote 1 AM (Art 3: health cases).
17. At [43] (see [10] above) the judge does expressly refer to the wording contained at headnote (2)(ii)(a) of AM (Art 3: health cases) but not to (2)(ii)(b) which is disjunctive. Given that the risk here is of suicide, in my judgement, the most obvious threshold test which applies is that set out at (b).
18. Whilst the judge appeared to have set out the correct legal framework, I am nevertheless satisfied that the judge overlooked the specific evidence he had before him of the appellant’s suicide risk as distinct from the appellant’s mental health condition in general. I say that because of the cumulative absence from the judge’s decision of specific reference to that part of the expert’s evidence, any further reference to suicide apart from when he set out the diagnosis at [9] and his failure to refer to the more obvious part of the threshold test which would apply in suicide cases.
19. Furthermore, when dealing with the availability of mental health treatment in India the judge said at [36]:
“It is apparent from the CPIN that there is limited provision of psychiatric treatment in India. Such treatment is also harder to access in rural areas”.
20. The judge also noted at [37] that the “CPIT was unable to find information about the availability of drugs used to treat mental illness” although he relied on Dr Khan’s evidence to make the findings he did at [43] (see [10] above).
21. I am satisfied that the judge’s evaluation of the availability of treatment in India is likely to have been infected by the fact he overlooked the evidence of the appellant’s specific suicide risk which, on the evidence before the judge, would become an increased risk upon learning of an adverse immigration decision. At its highest, the findings the judge made refer to the availability of anti-depressants which is the treatment the appellant is on here when his risk of suicide exists but is not elevated because, at this stage, there is hope. Even so, Dr Khan’s expert opinion is that even now the appellant requires counselling in the form of CBT which the judge accepted may not be available to the appellant in India.
22. In my judgement, it was incumbent on the judge to evaluate the evidence about the availability of treatment through the lens of the specific suicide risk with which the appellant would present on return (according to Dr Khan) in order to assess whether or not the various tests set out in the headnote of AM (Art. 3: health cases) were met.
23. It follows that I am satisfied the judge failed to have regard to the evidence of the appellant’s suicide risk; failed to apply that evidence to the relevant legal test and accordingly failed to provide adequate reasons why the appellant did not meet the Article 3 threshold on medical grounds. In short, Ground 3 is made out.
24. There was no dispute between the parties that, if I found there to be an error in the judge’s assessment of Article 3, it was material to the other tests under the broad umbrella of Article 8. Indeed, as the judge recognised [7], the appellant’s case on medical grounds was linked to his appeal on Article 8 grounds. It follows that I am satisfied the judge’s error was material such that the decision should be set aside pursuant to section 12 (a) of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”). It follows that there is no need for me to deal separately with Grounds 2 and 3.
25. As there was no challenge to the judge’s decision on the protection claim, his findings on that issue are to be preserved.
26. As to disposal, I have given consideration to where the remaking of the appeal should take place. In light of the Court of Appeal’s decision in AEB v SSHD [2022] EWCA Civ 1512, the decision in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) and para. 7.2 of the Senior President’s Practice Statements, and having regard to the extent of the preserved findings, I find the appropriate course is for the appeal retained for re-making in the Upper Tribunal pursuant to section 12(2)(b)(ii) of the 2007 Act. Updating medical/other evidence is likely to be required and parties are referred to the directions set out below.
Notice of Decision
1. The decision of the First-tier Tribunal involved the making of an error on a point of law.
2. The decision is set aside and will be re-made by a Judge of the Upper Tribunal.

SJ Rastogi
Judge of the Upper Tribunal
Immigration and Asylum Chamber

27 November 2024

Directions
1. The appellant is to file and serve any updating evidence on which he relies no later than 21 days before the date on which the appeal is to be re-made (the next hearing), including updating medical evidence. That medical evidence will need to address whether or not the appellant is fit to give evidence and if so, any reasonable adjustments he may need to do so.
2. The appellant is to confirm no later than 21 days before the next hearing whether any witnesses will be giving evidence and, if so, whether any of them require any reasonable adjustments or the use of an interpreter and if so, in what language.
3. The respondent to file and serve any additional evidence, if so required, no later than 21 days before the next hearing.
3. The next hearing will take place in person with a 3 hour time estimate on the first available date after 3 February 2025. Parties to make representations within 14 days if they disagree with the time estimate.