Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case Nos: UI-2024-004328, UI-2024-004329,
UI-2024-004330 and UI-2024-004331
FtT Nos: HU/63179/2023, LH/04947/2024
HU/63185/2023, LH/04949/2024
HU/63186/2023, LH/04950/2024
HU/63188/2023, LH/04948/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 15 September 2025

Before

UPPER TRIBUNAL JUDGE KAMARA
UPPER TRIBUNAL JUDGE O’CALLAGHAN

Between

(1) CHIMEZEI OKPARA
(2) WILSON OKPARA
(3) MICHAEL OKPARA
(4) DAVID OKPARA
(NO ANONYMITY ORDER MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr M Moriarty, Counsel, instructed by Anthony Ogunfeibo & Co.
For the Respondent: Mr T Lindsay, Senior Presenting Officer

Heard at Field House on 7 January 2025

DECISION AND REASONS
A. INTRODUCTION
1. This is an appeal against a decision of First-tier Tribunal Judge S Taylor sent to the parties on 28 July 2024. Judge Taylor dismissed the appellants’ appeals against individual decisions of the respondent dated 28 October 2023 by which she refused, in consistent terms, applications for leave to remain in the United Kingdom on human rights grounds.
2. Our consideration of this matter has reinforced the essential requirement of accurate reference to fact in grounds of appeal to this Tribunal.
B. THE APPELLANTS’ HISTORY
3. The appellants are a family unit and nationals of Nigeria. The third and fourth appellants are minors. The family were granted entry clearance as visitors at various times and entered the United Kingdom in April 2022. They enjoyed six months leave to enter. Whilst possessing visitor status the family registered with a GP in June 2022. Soon afterwards, the first appellant engaged with the neurology team at a local hospital and the second appellant with the oncology clinic at the same hospital. The children applied for school admission and were offered places in June 2022.
C. THE APPLICATION FOR LEAVE TO REMAIN
4. The family applied for leave to remain on human rights grounds by an application dated 15 September 2022. The first appellant was the lead applicant. By means of a covering letter prepared by their present legal representatives, the appellants founded their application upon the first appellant’s mental and physical health concerns:
“While back in Nigeria the family unfortunately witnessed the mutilated body of a close neighbour following his death as a result of a bomb blast. The main applicant has never been the same since then and sometime later she was woken from deep sleep as a result of another bomb blast and we understand that this effectively tipped her over the edge from a mental point of view and she is now left with body tremors in her right hand which travel right up to her head, difficulty maintaining balance, slow speech and being weepy which are some of the symptoms she currently exhibits.”
5. Though the dates of the incidents were not detailed in the representations, they were subsequently identified in documents filed with the First-tier Tribunal as occurring in 2014.
6. The application was accompanied by a letter issued by the National Hospital, Abuja in April 2022 confirming that the first appellant was provisionally diagnosed with Parkinson’s disease and that in view of her imminent trip she would “benefit from further evaluation and management by specialists” in the United Kingdom.
7. The representations further noted that the first appellant’s condition was exacerbated when family members were kidnapped in 2018 and not released until payment of a ransom. The second appellant was identified as having narrowly escaped the same fate, and “this made the family redouble their efforts to leave the country for a visit to the UK to recharge their batteries and get away from the mental turmoil of the incidents referred to”.
8. Reliance was expressly placed upon article 8 ECHR alone, as incorporated by the Human Rights Act 1998, with reference to section 55 of the Borders, Citizenship and Immigration Act 2009 (erroneously referred to in the representations as the ‘Borders and Citizens Act 2009’).
9. The application was accompanied by a letter from the second appellant’s sister, a British citizen with whom the family now reside in this country, confirming a willingness to be responsible for the appellants’ maintenance and accommodation, and observing the family “will have no recourse to public funds from the date of their entry to the UK”.
D. THE PSYCHIATRIC EVIDENCE
10. A report prepared by Dr A Akioye B.Sc (Hons), MB.CHB, MRCPsych, DPM, Consultant Psychiatrist, dated 15 September 2022, was served upon the respondent under cover of a letter dated 5 October 2022.
11. Dr Akioye detailed in his report that he had received instructions from the appellants’ legal representatives. The instructions were not placed in the appellants’ bundle before the First-tier Tribunal nor in their bundle filed with the Upper Tribunal.
12. The sources of information provided to Dr Akioye are identified in section 4 of the report: an NHS appointment letter for a neurology department, a letter from the appellants’ family physician in Nigeria providing a summary of the first appellant’s medical history, a Google search newspaper article from Premium Times dated 4 May 2014 titled “Nyanya Explosion”, a Guardian newspaper article dated 4 October 2015 titled “B’Haram re-enters Abuja with bombs”, and a document from Police Force Headquarters, Abuja, dated 21 July 2021, addressing a kidnapping.
13. The first appellant was initially interviewed by Zoom in early September 2023 and then a week later interviewed by telephone. She recounted to Dr Akioye her personal and medical history. She explained the circumstances of the bomb explosion in 2014, the later kidnapping incident and her emotional response to these incidents. She described intermittent flashbacks and nightmares following the incidents. She reported making a conscious effort to avoid ruminating on ideas relating to bomb blasts. She detailed that she was less anxious following her move to the United Kingdom and that her sleep pattern has improved.
14. We cite Dr Akioye’s conclusion in full:
“16.1 Mrs Okpara’s presentation is consistent with international diagnostic criteria for Post Traumatic Stress Disorder however this requires further clinical evaluation. With the timeline provided there appeared to have been a delayed onset of symptoms.
16.2 She reported neurological symptoms including unilateral tremors. The exact onset of these symptoms is unclear as Mrs Okpara only provided times in terms of years rather than exact dates. It has not been possible to make an association between the neurological symptoms and severe traumatic incidents which she experienced.
16.3 Mrs Okpara will benefit from interventions to address the PTSD and this could take the form of psychological and pharmacological interventions. According to National Institute for Health and Care Excellence, the recommended treatments include trauma focused psychological interventions as well as use of certain medications.
16.4 In terms of prognosis, I can only comment on the PTSD. I don’t have enough medical information to provide an opinion on her neurological symptoms. This is best provided by a neurologist.
16.5 Mrs Okpara appears to have a reasonable level of functioning and is able to attend to and engage in basic activities of daily living.
16.6 It is not possible to make an association between the reported tremors and the bomb explosion incidents at this time. The outcome of the neurology appointment may shed more light on this.
16.7 In terms of prognosis for recovery from post traumatic stress disorder, it is known that this disorder can adopt a chronic course where symptoms fluctuate over time. Periods of severe symptomatic presentation usually reflect exposure and ongoing sensitivity to reminders and traumatic stress factors. If Mrs Okpara does not receive the required interventions, the likelihood of a protracted and more refractory emotional illness related to the trauma is high.
16.8 Scientific data suggests that the average duration of untreated PTSD is five to six years. Mrs Okpara appears to fall into this category. The ongoing presence of symptoms can be emotionally debilitating and consequently lead to functional decline if not treated. Mrs Okpara has not been clinically assessed and evaluated by a psychiatrist other than for the purpose of providing this report.
16.9 Mrs Okpara will benefit from a referral to a psychiatrist, and this can be undertaken by her general practitioner. This is from the perspective that the prognosis is favourable with the right treatment. The reported medical care in Mrs Okpara’s home country have not highlighted the emotional consequences of the trauma and have not taken required measures to address the same.
16.10 The concern therefore in the case would be that, if Mrs Okpara were to be re-exposed to the trauma before recovery process has taken place, such as returning to and living in environments with high incidents of terrorist activities and kidnapping, the severity of emotional harm would increase significantly. This could consequently lead to more co-morbid mental and physical health disorders. This in literature, is a concept called “Re-traumatisation”.
16.11 I have not seen any blood or radiological investigations to rule out other potential aetiologies for this presentation.”
15. We observe Dr Akioye’s opinion that first appellant’s presentation was consistent with PTSD but note that he clearly observed that further clinical evaluation was required. Observing the timeline provided, he noted an appearance as to delayed onset of symptoms but provided no opinion as to the relevance of delayed onset.
16. Save for the report dated 15 September 2022, no evidence was filed with the First-tier Tribunal as to the first appellant engaging in psychiatric care at the date of hearing on 25 July 2024, though evidence was filed as to ongoing engagement by the first appellant with various NHS departments concerning neurology and neuroradiology.
E. THE RESPONDENT’S DECISIONS
17. The respondent refused the applications by individual decisions dated 28 October 2023. Having noted that the family had been contacted by the respondent’s asylum team and confirmed that they did not wish to claim asylum, the respondent refused the applications under article 8 ECHR on three grounds. Firstly, the appellants were not eligible to apply under Appendix FM to the Immigration Rules because they did not satisfy the leave requirements. Secondly, there are no very significant obstacles to the appellants integrating into Nigeria on return. Thirdly, having considered her duties under section 55 of the 2009 Act, no exceptional circumstances exist rendering removal a breach of article 8 ECHR.
18. Though not expressly relied upon by the first appellant in her representations, the respondent additionally refused her application on article 3 ECHR grounds as it was considered that Nigeria has a functioning healthcare system capable of assisting her, and she had not shown that there are substantial grounds for believing that she would face a real risk of being exposed to a serious, rapid and irreversible decline in her state of health resulting in intense suffering or a significant reduction in life expectancy as a result of the absence of appropriate medical treatment or lack of access to such treatment.
19. We observe that nowhere in the refusal decision was there express acceptance of any personal facts advanced by the appellants beyond their nationality, having been granted visitor visas and having sought leave to remain on 6 September 2022. That the respondent has addressed the appellants’ health contention through the prism of articles 3 and 8 ECHR does not, by itself, establish an express acceptance of the underlying medical prognosis.
F. THE APPELLANT’S SKELETON ARGUMENT
20. An appellants’ skeleton argument (“ASA”) was filed with the First-tier Tribunal on 21 March 2024.
21. The ASA details the appellants’ case at the outset and notes the basis for the application for leave to remain being the ‘family circumstances’ of the appellants and their private life rights, at para. 2. The issues are identified at para. 4 as follows:
i. whether there are significant obstacles to the [First] Appellant’s integration to her home country Nigeria if required to leave the UK.
ii. Whether there are exceptional circumstances issues involved here which would render the removal of the appellants a breach of article 3 and 8 of the European convention of human rights [sic] because it would result in unjustifiably harsh consequences for the main Appellant and her family members.
iii. The effect of the removal of the Appellants from the UK on the children who are minors, well settled generally, and in particular within the UK educational system.
22. The first appellant was said to have serious neurological issues that are being investigated, and the second appellant was being treated in respect of prostate cancer. Reference was briefly made to Dr Akioye’s report at paras. 2 and 7:
“2. ... A Consultant Psychiatrist has confirmed that if the main Appellant were to return into an area where her symptoms commenced the severity of her emotional harm would increase significantly. He states further that this could consequently lead to more co morbid mental and physical health disorders.”
‘7. ... Her mental health suffered as a result of the various incidents referred to above and it is submitted that it is simply not enough for the Respondent to refer to various data detailing the care available in Nigeria on the strength of the expert’s comments relating to returning to that environment which we referred to above. ...”
23. In respect of the general assertions made as to Dr Akioye’s opinion in the paragraphs cited above no direct reference is made in the ASA to relevant paragraph numbers of Dr Akioye’s report. We understand the general assertion to be an inaccurate reference to para. 16.10 of Dr Akioye’s report which concerned re-exposure upon “returning to and living in environments with high incidents of terrorist activities and kidnapping”. There is no reference in the report to the severity of emotional harm increasing significantly if the first appellant “were to return to an area where her symptoms commenced”. Additionally, the bomb blast is said to have occurred in 2014, approximately eight years before the family left their home area for the United Kingdom, and the kidnapping was said to be of family members in 2018. There is a very general assertion in the first appellant’s witness statement that her husband, the second appellant, “narrowly missed being kidnapped”, but the second appellant does not provide any detail as to this event in his witness statement nor in his oral evidence at the hearing as recorded at [11]-[12] of the First-tier Tribunal’s decision.
G. THE RESPONDENT’S REVIEW
24. The respondent filed a review on 10 May 2024. The starting point of this document, at para. 4, were the issues identified by the appellants in their ASA and cited above at [21].
25. As to the first issue of integration, the respondent gave reasons as to why the appellants had not demonstrated very significant obstacles to their integration on return to Nigeria. This conclusion was relied upon in respect of the third issue coupled with the observation that the children would be returning to Nigeria with their parents as a family unit.
26. Turning to the second issue, Dr Akioye’s conclusions were noted and addressed:
“16. Although the A has described their health deterioration as a result of events in Nigeria, the evidence submitted does not highlight that A1 has been diagnosed with any particular condition. The psychiatric report provided concludes that the A requires further clinical evaluation before a confirmed diagnosis of PTSD can be provided. In connection, the medical letters provided highlight that the A’s symptoms are “entirely normal and there is no evidence of traumatic brain injury”. The medical evidence submitted at appeal stage has been considered. However, the burden is on the A to provide evidence of their medical condition, their current treatment, the likely suitability of any alternative treatment and the effect that an inability to obtain effective treatment would have on their health. As the A has failed to provide the required medical evidence the burden of proof has not been discharged.”
“19. The onus is on the A to demonstrate that removal would result in unjustifiably harsh consequences (Agyarko 2017 UKSC) and go beyond mere difficulties, inconvenience of even being harsh, this being a high threshold that on the evidence has not been reached. The R maintains that the evidence provided does not demonstrate circumstances that would result in unjustifiable harsh consequences for the A or her family.” [Emphasis added].
27. A fair and reasonable reading of para. 16 is that the respondent does not accept that a diagnosis of PTSD has been made by Dr Akioye in respect of the first appellant. The respondent’s position is that further clinical evaluation is required before a diagnosis for PTSD may be confirmed.
28. Importantly, and observing that reliance was placed by the respondent upon the reasons for refusal decision letters, there was no express acceptance of the personal histories of the appellants beyond the limited personal facts addressed in the decision letter which are detailed at [21] above.
H. THE APPELLANT’S SUPPLEMENTARY WRITTEN SUBMISSIONS
29. On the morning of the hearing before the First-tier Tribunal, the appellants filed and served supplementary written submissions prepared by counsel, not Mr Moriarty, dated 24 July 2024. The submissions detail at para. 6 that the respondent “does not dispute” the appellants’ nationality and “the adult appellants’ health conditions”. We address the latter, factually incorrect, observation below.
30. We note at para. 14 that the submissions advance a case that the first appellant has PTSD:
“14. Further appellants’ case is that Chimezie Okpara on the balance of probabilities has post-traumatic disorder per the expert’s conclusions and other medical documents. The report stated that ‘If Mrs Okpara does not receive the required interventions, the likelihood of a protracted and more refractory emotional illness related to the trauma is high’ and there is a risk of ‘functional decline’ if the illness is not treated. She is receiving support and treatment in the UK.
31. This paragraph of the supplementary written submissions does not identify the relevant paragraph numbers of Dr Akioye’s report to permit this Tribunal to identify the source of the contention. We understand reference is being made to para. 16.7 of the report. The submissions do not detail with clarity Dr Akioye’s observation, at para. 16.1, that though the first appellant’s presentation is consistent with international diagnostic criteria for PTSD, “this requires further clinical evaluation”.
32. We are concerned that counsel considered the assertion at para. 6 of the supplementary written submissions that the respondent “does not dispute ... the adult appellant’s [sic] health conditions” to be factually accurate. As observed above, the diagnosis relevant to this appeal was not expressly accepted in the challenged decision. At the review stage, the respondent was clear that Dr Akioye’s report was not sufficient to meet the required burden of proof.
I. THE FIRST-TIER TRIBUNAL DECISION
33. The hearing came before Judge Taylor sitting in the Virtual Region on 25 July 2024. All four appellants attended, and the first and second appellants gave evidence. Dr Akioye did not attend. The appellants and the respondent were represented. The appellants relied upon Dr Akioye’s report.
34. There is no reference within the Judge’s decision to the respondent being requested by the appellants to confirm her position as to the adult appellants’ medical conditions at the outset of the hearing. Counsel for the appellants appears to us to have proceeded in the manner adopted by their supplementary written submissions, namely that the medical prognosis was not in dispute. The appellants were clearly on notice during the course of the respondent’s submissions that the “psychiatric report did not confirm a diagnosis of PTSD”, at [14] of the First-tier Tribunal decision, and it was not orally contended by counsel for the appellants at the hearing that the respondent’s position went behind an earlier concession as to the adult appellants health conditions not being disputed.
35. The First-tier Tribunal concluded that the evidence of the first and second appellants did “not stand up to scrutiny and lacked credibility”, at [16]. The first appellant’s account as to the bomb explosion, the kidnapping of a family member and the second appellant having narrowly escaped the same fate were rejected, at [17]. The adverse findings at [16] and [17] have not been expressly challenged before this Tribunal.
36. The First-tier Tribunal found as to the first appellant’s physical ailments that she was receiving treatment in Nigeria prior to leaving the country. As to her mental health concerns, the First-tier Tribunal noted at [19] that Dr Akioye did not diagnose the first appellant with PTSD but simply observed that she has symptoms consistent with the diagnosis “which require evaluation”. The report’s conclusion that the first appellant may suffer emotional harm if she returned to Nigeria was observed, but the First-tier Tribunal considered that this conclusion was reached without full diagnosis, without full evaluation and consequent to remote Zoom and telephone interviews. Having considered the reported decision of HA (expert evidence; mental health) Sri Lanka [2022] UKUT 00111 (IAC), [2022] Imm AR 809, the First-tier Tribunal decided that very little weight could be attached to Dr Akioye’s report, as he had never met the first appellant, and based his findings upon remote interviews.
37. At [21] the plausibility of the first appellant’s account was found to be further damaged by her working as a teacher until she travelled to the United Kingdom for a holiday, but some weeks later her mental health was said to be such that she could not return home. The First-tier Tribunal observed that no supporting evidence was provided as to the sudden decline.
38. At [20] the First-tier Tribunal noted the medical history of the second appellant and found that he was receiving standard medication in Nigeria in relation to an enlarged prostate and no evidence was filed contending that the treatment provided was not appropriate. It was observed that consequent to his admission to the United Kingdom the second appellant has been diagnosed with prostate cancer, but it presently requires monitoring every six months and is not at a critical stage. No medical evidence was provided supporting the second appellant’s contention that his cancer was misdiagnosed in Nigeria and his claim that there would not be treatment available to him on return was found to be conjecture and not supported by evidence.
39. The First-tier Tribunal found that the family were independent when living in Nigeria. No family life founded upon dependency was established with the second appellant’s sister in the United Kingdom. It was noted that the appellants will return to Nigeria as a family unit. It was concluded there are no very significant obstacles to their integration on return to Nigeria: the first and second appellants had employment as a teacher and a chief data processing officer before travelling to this country, the children could resume schooling on return, and no evidence was provided as to what has happened to the family home in Nigeria.
J. GROUNDS OF APPEAL
40. The grounds of appeal were prepared by the appellants’ solicitors. Three grounds are advanced:
(1) The First-tier Tribunal erred in questioning the reliability of Dr Akioye’s report despite the respondent’s failure to raise concerns.
(2) The First-tier Tribunal failed to have regard to the respective health circumstances of the appellants.
(3) The First-tier Tribunal erred as to the date when the article 8 assessment should commence.
41. We cite the first written ground in its entirety:
“3. It was not open to the Judge to treat the [Consultant Psychiatrist’] report as unreliable in the absence of any invitation by the respondent for him to do so. The respondent had not taken any issue with the report’s contents, reliability, or currency, remaining silent on the matter.
4. In Lata (FtT: principle controversial issues) [2023] UKUT 00163 (IAC), the Upper Tribunal referred at [31] to:
“... a misconception that it is sufficient for a party to be silent upon, or not make an express concession as to, an issue for a burden to then be placed upon a judge to consider all potential issues that may favourably arise, even if not expressly relied upon. In simple terms, this amounts to a judge being required to search for and consider an 'obvious' point, though not so obvious that it was raised by a party at the hearing. The reformed appeal process that now operates in the FtT has been established to ensure that a judge is not required to trawl through the papers in an appeal to identify what issues are to be addressed. The task of the judge is to deal with the issues that the parties have identified. ...”
5. The status and reliability of the report as a current expert assessment of the Sponsor were not identified by the respondent as an issue. Nor did the respondent invite the Judge to attach less weight to the report than it would otherwise merit due to such claimed deficiencies. As such, these were not matters for the Judge to consider and her has gone beyond his remit in doing so. This is a material error of law.
6. Further, or alternatively, the Judge’s approach, in failing to raise his concerns regarding the report, was procedurally unfair. Since the respondent had not raised any issues with the report, the appellant was not on notice that she might, for example, be expected to provide further medical evidence in support of that report. Had the Judge raised this of his own motion at the hearing, the appellant could have sought an adjournment to obtain such evidence. The appellant has been deprived of a reasonable opportunity to do this, which amounts to a material error of law.”
42. The appellants contend that it was not open to the First-tier Tribunal to treat Dr Akioye’s report as unreliable in the absence of any invitation by the respondent for him to do so. Their position is that the respondent had not taken any issue with the contents of the report or its reliability.

K. LAW
i. Identification of the principal important controversial issues
43. Consequent to the President of the First-tier Tribunal (Immigration and Asylum Chamber)’s Practice Statement No 1 of 2022 (13 May 2022) and the First-tier Tribunal’s reformed appeal process there is now an emphasis on the requirement for parties to proceedings to identify the issues in dispute and to focus on addressing the evidence and law relevant to those issues in a particularised yet concise manner. Such approach ensures that there is an efficient and effective hearing, proportionate to the real issues in dispute.
44. The President of the First-tier Tribunal confirmed in TC (PS compliance, “issues-based” reasoning) [2023] UKUT 00164, [2023] Imm AR 1427 that the identification of ‘the principal important controversial issues’ leads to the kind of focussed and effective tribunal decision required, addressing those matters, and only those matters, which need to be decided and concentrating on the material bearing upon those issues.
45. The Upper Tribunal confirmed in Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC), [2023] Imm AR 1416 that parties are under a duty to provide the First-tier Tribunal with relevant information as to the circumstances of the case, and this necessitates constructive engagement with the First-tier Tribunal to permit it to lawfully and properly exercise its role. The parties are therefore required to engage in the process of defining and narrowing the issues in dispute, being mindful of their obligations to the First-tier Tribunal. The Upper Tribunal held that it is a misconception that it is sufficient for a party to be silent upon, or not make an express consideration as to, an issue for a burden to then be placed upon a judge to consider all potential issues that may favourably arise, even if not expressly relied upon. The reformed appeal procedures that now operate in the First-tier Tribunal have been established to ensure that a judge is not required to trawl though the papers to identify what issues are to be addressed. The task of a judge is to deal with the issues that the parties have identified.
46. Whilst it is not an error of law for a judge to fail to set out the issues in dispute at the beginning of their decision, such approach should properly be adopted to appeals under the online reform procedure where at each major stage there is a requirement to condense the parties’ positions in a clear, coherent and concise ‘issues-based’ manner.
ii. Expert witness
47. The role of an expert is to assist a tribunal in relation to matters of scientific, technical or other specialised knowledge which is outside a judge’s expertise by giving evidence of fact or opinion.
48. An expert is not to usurp the functions of a judge as the ultimate decision-maker on matters that are central to the outcome of the case. Whether a proposed expert is entitled to be regarded as an expert remains a question for the individual tribunal. As a general rule, a judge has the task of assessing the evidence of an expert for its adequacy and persuasiveness.
49. It is well-established that it is for a tribunal to consider what weight should properly be placed upon evidence, and the approach to expert evidence is no different. It is a judicial decision as to whether opinion evidence can properly be considered ‘expert’. The Supreme Court in Kennedy v. Cordia (Services) LLP (Scotland) [2016] UKSC 6; [2016] 1 WLR 597, at [43]-[44], approved a section of the South Australian decision in R v. Bonython (1984) 38 SASR 45, from which it distilled four key considerations which governed the admissibility of expert evidence (which in Scots law is known as “skilled evidence”).
i) whether the proposed skilled evidence will assist the court in its task;
ii) whether the witness has the necessary knowledge and experience;
iii) whether the witness is impartial in his or her presentation and assessment of the evidence; and
iv) whether there is a reliable body of knowledge or experience to underpin the expert’s evidence.
50. The Upper Tribunal confirmed in MH (review; slip rule; church witnesses) [2020] UKUT 125, [2020] Imm AR 983, at [39] that whilst no question of admissibility arises in the Immigration and Asylum Chamber these criteria are nevertheless relevant in deciding whether evidence is properly described as ‘expert evidence’.
51. Ultimately it is an expert witness' overall reasoning which a judge is examining.
52. No issue was taken before us as to Dr Akioye’s professional qualifications, set out at paragraph 3.1 of his report.
53. When considering expert evidence, proper consideration is to be given to the guidance provided in HA (expert evidence, mental health) [2022] UKUT 00111 (IAC), [2022] Imm AR 809. We observe the following paragraphs from the headnote:
“(2) Although the duties of an expert giving evidence about an individual’s mental health will be the same as those of an expert giving evidence about any other matter, the former must at all times be aware of the particular position they hold, in giving evidence about a condition which cannot be seen by the naked eye, X-rayed, scanned or measured in a test tube; and which therefore relies particularly heavily on the individual clinician’s opinion.
(3) It is trite that a psychiatrist possesses expertise that a general practitioner may not have. A psychiatrist may well be in a position to diagnose a variety of mental illnesses, including PTSD, following face-to-face consultation with the individual concerned. In the case of human rights and protection appeals, however, it would be naïve to discount the possibility that an individual facing removal from the United Kingdom might wish to fabricate or exaggerate symptoms of mental illness, in order to defeat the respondent’s attempts at removal. A meeting between a psychiatrist, who is to be an expert witness, and the individual who is appealing an adverse decision of the respondent in the immigration field will necessarily be directly concerned with the individual’s attempt to remain in the United Kingdom on human rights grounds.
(4) Notwithstanding their limitations, the GP records concerning the individual detail a specific record of presentation and may paint a broader picture of his or her mental health than is available to the expert psychiatrist, particularly where the individual and the GP (and any associated health care professionals) have interacted over a significant period of time, during some of which the individual may not have perceived themselves as being at risk of removal.
(5) Accordingly, as a general matter, GP records are likely to be regarded by the Tribunal as directly relevant to the assessment of the individual’s mental health and should be engaged with by the expert in their report. Where the expert’s opinion differs from (or might appear, to a layperson, to differ from) the GP records, the expert will be expected to say so in the report, as part of their obligations as an expert witness. The Tribunal is unlikely to be satisfied by a report which merely attempts to brush aside the GP records.”
54. Additionally, we observe [165] of the Presidential decision:
“165. If the Secretary of State does not agree the contents of the expert report, she should promptly inform the appellant and the Tribunal. In such an event, the appellant will need to make arrangements for the expert to give oral evidence and be cross-examined by the Secretary of State’s representative. The availability of technology to facilitate the giving of expert evidence by video should enable even busy professionals, such as consultant psychiatrists, to give evidence from their offices, without significantly delaying the holding of the hearing.”
iii. Examination of a witness
55. It is trite that an important part of a judge’s role is to ensure that proceedings are fair.
56. A judge’s role is normally limited to determining the issues based on the evidence adduced by the parties, and a judge does justice between the parties in so doing: Air Canada v Secretary of State for Trade (No. 2) [1983] 2 AC 394, 438G.
57. As a generality in civil proceedings, an appellant bears the burden of proof in establishing their case.
58. There is a long-standing general rule in civil proceedings that a party is required to challenge by cross-examination the evidence of any witness of the opposing party on a material point if they wish to submit to a court that the evidence should not be accepted. This requirement serves the important function of permitting a witness the opportunity to explain any contradiction or alleged problem with their evidence. This rule of professional practice is often referred to as the rule in Browne v Dunn (1893) 6 R. 67.
59. In Griffiths v Tui (UK) Ltd [2023] UKSC 48, [2023] 3 WLR 1204 the Supreme Court set out the status and application of the rule in Browne v Dunn. The rule extends to both witnesses as to fact and expert witnesses. However, the rule is not to be applied rigidly. Its application depends upon the circumstances of the case as the criterion is the overall fairness of the trial.
60. The Supreme Court identified at [61]-[68] a non-exhaustive list of circumstances where the rule may not apply, including where the expert had been given a sufficient opportunity to respond to criticism of, or otherwise clarify their report. In this regard, the Supreme Court approved and applied the approach in Edwards Lifesciences LLC v Boston Scientific Scimed Inc [2018] EWCA Civ 673 where the Court of Appeal held that at least part of the unfairness which the rule was intended to address was the lack of opportunity for a witness to respond to a challenge to their evidence. On the facts before the Court of Appeal there had been several rounds of expert evidence and consequently the potential for unfairness was much reduced. Floyd LJ noted, at [67], “The battle lines between the experts were clearly drawn in the pre-trial exchange of reports. The potential for unfairness to the witness in such circumstances is much reduced.”
61. In Edwards Lifesciences LLC, the Court of Appeal approved the judgment of Foskett J in Various Claimants v Giambrone and Law (A Firm) [2015] EWHC 1946 (QB), at [21], who held that that it was no longer the law that every aspect of a witness' evidence has to be challenged head on.
62. The Court of Appeal confirmed in Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201, [2024] 1 WLR 4055, at [39], that the principle addressed in Tui applies in the field of public law.
63. The First-tier Tribunal’s reformed appeal process requires parties to engage in a joint focus on identifying matters which need to be decided and to concentrate on the material bearing upon those issues. The process incorporates the general rule in Brown v Dunne by permitting parties to identify at the pre-hearing stage witness evidence that is not accepted with no requirement that peripheral evidence be addressed. The application of the rule as considered by the Supreme Court in Griffiths v Tui (UK) Ltd and the approved approach in Edwards Lifesciences LLC are encompassed within the reformed appeal process.
L. ANALYSIS
Ground 1
64. Permission to appeal was granted on the basis that para. 3 of the written grounds contended that it was not lawful for the First-tier Tribunal to treat Dr Akioye’s psychiatric report as unreliable as the respondent “had not taken any issue with the report’s contents, reliability, or currency, remaining silent on the matter”.
65. This position adopts that of appellant’s counsel at para. 6(ii) of their supplementary written submissions that “the respondent does not dispute, per the [reasons for refusal letter] ... the adult appellant’s [sic] health conditions.”
66. We conclude that the general premise advanced by both the supplementary written submissions and the grounds of appeal is inaccurate. The health conditions were not expressly accepted in the decision letters. The respondent’s position in her review was that Dr Akioye’s opinion did not discharge the burden of proof upon the appellants as there was no confirmed diagnosis of PTSD. This position was repeated before the First-tier Tribunal in submissions.
67. By her reasons for refusal letter dated 28 October 2023, the respondent did not expressly accept the first appellant’s medical condition. She proceeded to consider the first appellant’s protected articles 3 and 8 rights through the prism of the provided medical evidence, in essence at its highest, and concluded that no breach of protected rights would flow from removal. The same approach is adopted to the health concerns of the second appellant in respect of article 8. Consequently, there was no express concession as to the adult appellants’ health conditions.
68. Though addressed in limited terms at paras 2 and 7 of the ASA, we accept that the appellants confirmed reliance upon Dr Akioye’s report. We observe that the ASA did not expressly place reliance upon the respondent having not contested the health conditions of the first and second appellants in her decision letters.
69. As addressed above, the respondent expressly addressed Dr Akioye’s report at para. 16 of her review, dated 10 May 2024, as well as the medical evidence relating to the second appellant at para. 17. The respondent’s position could be no clearer. We again cite the relevant section of para. 16:
“16. ... The medical evidence submitted at appeal stage has been considered. However, the burden is on the A to provide evidence of their medical condition, their current treatment, the likely suitability of any alternative treatment and the effect that an inability to obtain effective treatment would have on their health. As the A has failed to provide the required medical evidence the burden of proof has not been discharged.”
70. Even if the appellants erroneously understood the respondent’s refusal letter of October 2023 as accepting the adult appellants’ health conditions, we conclude that it is clear to any reasonable person reading the review that from at least May 2024 the respondent did not accept that a diagnosis of PTSD had been made by Dr Akioye. We agree that the supplementary written submissions of July 2024 and the subsequent grounds of appeal to this Tribunal should have accurately addressed the respondent’s position in respect of Dr Akioye’s report as advanced by the review.
71. Upon the respondent having confirmed her position as to Dr Akioye’s evidence, the burden remained upon the appellants were on notice of the requirement for the first appellant to prove her case as to the diagnosis of PTSD. As explained by the Presidential panel in HA (expert evidence, mental health) it fell upon the appellants to arrange for the expert to give oral evidence and be cross-examined by the respondent’s representative. In the alternative, they could rely upon the report alone and seek to persuade a judge to accept the expert’s opinion without the benefit of oral evidence being mindful that in a human rights appeal the First-tier Tribunal is the new primary decision-maker, not the respondent: COA v Secretary of State for the Home Department [2024] UKSC 32, [2024] 3 WLR 847, at [48].
72. The ability of the First-tier Tribunal to attach very little weight to Dr Akioye’s report is consistent with the flexible application of the rule in Brown v Dunn where Lord Herschell conceded that there was no obligation to raise such a matter in cross-examination in circumstances where it is “perfectly clear that (the witness) has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling”. This exception to the rule was acknowledged by Lord Neuberger and Lord Mance in their joint judgment in Chen v Ng [2017] UKPC 27, at [53].
73. We remind ourselves that a tribunal is not bound to accept expert evidence even if the expert is not cross-examined. In MS (Zimbabwe) v Secretary of State for the Home Department [2021] EWCA Civ 941, at [61], the Court of Appeal held that the tribunal of fact is entitled, and obliged, to examine the analysis and reasoning in the expert's report. It is obliged to reach its own conclusions on any questions of fact, or mixed questions of fact and law, which it must decide in order to determine a case. It may accept guidance from an expert on those questions but is not obliged to accept it. This is so even if the expert witness is not cross-examined.
74. The appellants did not call Dr Akioye to give evidence. Judge Taylor was requested by them in his role as the new decision-maker to accept the opinion of Dr Akioye. Having rejected the personal history of the first appellant that underpinned the diagnosis, and the judicial reasoning being cogent and lawful, the foundation of Dr Akioye’s opinion fell away. We conclude that Judge Taylor did not materially err in law.
Ground 2
75. In the written grounds criticism is directed to one sentence located within [18] of the First-tier Tribunal’s decision:
“18. ... I find that treatment was available to the first appellant in Nigeria and the claim under article 8 is not made out ...”
76. The appellants contend that the first appellant was being treated for physical and neurological issues in Nigeria, rather than the psychiatric issues raised in Dr Akioye’s report. The First-tier Tribunal should have considered the circumstances as they existed at the date of the hearing. Additionally, complaint is made that the First-tier Tribunal erred in concluding that there is adequate mental health treatment available in Nigeria “despite all the evidence pointing to the fact that, despite the symptoms referred to in the psychiatric report, in Nigeria the appellant was being treated for something else.”
77. Mr Moriarty advanced no oral submission on this ground, instead relying upon his skeleton argument filed with the Upper Tribunal. This in turn relied upon the relevant paragraphs of the grounds of appeal.
78. We cite [18] in its entirety:
“18. Irrespective of the reasons for her physical and mental conditions, the first appellant claims that she should be granted leave. As there would be a breach of article 3 on medical grounds if she had to return. However, on her own evidence, she was receiving medical attention for her physical conditions, and she has offered no evidence as to why this treatment could not have continued. She has submitted a hospital letter, dated 6 April 2022, which is a week before she travelled to the UK, which states that she was examined about her physical issues and a preliminary diagnosis was made, she was given a referral to neurology, but was unable to take up the appointment because she was due to travel to the UK. When asked why in evidence why this was the only hospital letter submitted, she stated that she had been going to hospital appointments previously, but this was the only hospital letter which she had. On the submitted evidence, I find that the first appellant was received treatment for her physical conditions in Nigeria and had been offered a referral for further treatment but chose to leave the country and travel to the UK. I find that treatment was available to the first appellant in Nigeria and the claim under article 3 ECHR is not made out.”
79. The challenge advanced before us is misconceived and evidences the danger of forensically relying upon certain words or sentences in a paragraph without adequate recognition of wider conclusions; or ‘island hopping’ which is an approach to grounds of appeal disapproved by the Court of Appeal in Volpi v. Volpi [2022] EWCA Civ 464, [2022] 4 WLR 48 at [65].
80. The First-tier Tribunal found the first appellant incredible as to her stated history of having mental health concerns arising from a bomb explosion and the kidnapping of relatives in [17] of its decision.
81. The paragraph subject to this challenge considered the first appellant’s physical health in relation to article 3. There was no requirement at all to reconsider her mental health. The foundation of her purported PTSD was found to be incredible in the previous paragraph of the First-tier Tribunal’s decision.
82. The appellants further contend that the First-tier Tribunal trivialised the second appellant’s medical condition at [20] of the decision by concluding that it had not reached a critical state. We cite the paragraph in full:
“20. The second appellant has made the unsupported assertion that he had been misdiagnosed in Nigeria, that he had been diagnosed with prostate cancer is the UK and would not be treated if he returned. On his own evidence, the second appellant was receiving treatment in Nigeria, he was taking Tamsulosin, in relation to an enlarged prostate, which is a standard medication for this nature of condition, as has provided no evidence that this treatment was not appropriate. Since his arrival in the UK, he has been diagnosed with prostate cancer, but at a stage that he requires monitoring every six months, so it has not reached a critical stage. He claims that he was misdiagnosed in Nigeria, but there is no medical evidence to support that view. As stated in the above paragraph, the second appellant stated that he had a senior job in Nigeria, he was receiving treatment for an enlarged prostate, and his claim that there would not be treatment for his current condition is based on conjecture and not supported by the evidence. In addition, he stated that he has polio but is not receiving treatment for the condition in the UK and was not doing so in Nigeria. I find that the second appellant’s claim to remain in the UK on medical grounds is far from being supported by the evidence.”
83. There is no cogent basis for concluding that the First-tier Tribunal “trivialised” the second appellant’s medical condition. This serious allegation has no basis. The medical evidence filed is limited in respect of the second appellant’s health condition, with medical letters dated August, September and December 2022 and April 2023. A letter from Guy’s Hospital dated 29 September 2023 details the second appellant’s confirmation that though he has some urinary symptoms, he will continue to have his Prostate-Specific Antigen (PSA) test undertaken every six months. The First-tier Tribunal was reasonably permitted to conclude that the limited evidence relied upon came nowhere close to meeting the thresholds established by articles 3 and 8.
Ground 3
84. The appellants advance complaint to [23] of the First-tier Tribunal’s decision, which we cite in full below:
“23. It was claimed that the appellant’s had formed a family life with Lovath Okpara in the UK, however they have overstayed there [sic] leave in the UK, and any family or private life established to date is in the full knowledge that they had no leave to remain. S117B provides that little weight attaches to private life established while a person has been in the UK illegally. In any event, the first and second appellants are independent adults, and a relationship with a sister or sister-in-law would not constitute a family life under the Rules, and neither was the relationship of an aunt, for the minor appellants. The family were independent before they came to the UK, and while Lovath may have provided them with accommodation in the UK, I am not satisfied that family life outside the rules has been established. The appellant would all be returning to Nigeria as a family unit and I find that the refusal of the applications would not result in an interference with family life which would engage article 8 ECHR. With regard to private life, none of the appellants are able to meet the time period requirements of Appendix Private Life, they fall short of meeting the time period requirements by some considerable margin, they were only in the UK for five months at the time of the applications. For the comprehensive reasons stated above, I am not satisfied that there are very significant obstacles to their integration on return. The first and second appellants had jobs before [they] voluntarily came to the UK and [overstayed] their visas, their statements have been silent as to what happened to their employment in Nigeria, when they came to the UK for what they claim was a short break, but decided to overstay. With regard to the minor appellants, no reasons have been given as to why they could not resume their schooling in Nigeria. The statements of the first and second appellants are silent concerning what has happened to their accommodation in Nigeria, they are currently living with a relative in the UK. The adult appellants are not working in the UK, whereas they were working in Nigeria, any private life in the UK is given little weight under S117B, and I find no reason why their comfortable private life in Nigeria should not be resumed. Similarly, applying S55 of the 2009 Act, I find that it would be in the best interest of the minor appellants to return to Nigeria, where they have the benefits of citizenship and return with their parents to resume their schooling.” [Emphasis added]
85. As a preliminary matter we observe paragraph 10 of the written grounds:
“10. At para 23, the Judge states that “with regards to private life, none of the Appellants are able to meet the time period requirements of Appendix private life, they fall short of meeting the time period requirements by some considerable margin, They were only in the UK for five months at the time of the application.” However, the relevant period of assessment should have been at the time of the hearing rather than at the time of the application. They learned Judge does make this reference on more than once occasion during his determination. It is submitted that this is a misdirection.”
86. Appendix Private Life to the Immigration Rules is a route to settlement. PL.5.1 is explicit as to the residence requirements for an adult on the Private Life route:
“PL 5.1. Where the applicant is aged 18 or over on the date of application:
(a) the applicant must have been continuously resident in the UK for more than 20 years; or
(b) where the applicant has not been continuously resident in the UK for more than 20 years, the decision maker must be satisfied there would be very significant obstacles to the applicant’s integration into the country where they would have to live if required to leave the UK.” [Emphasis added]
87. As for children, PL.3.1 confirms:
“PL 3.1. Where the applicant is aged under 18 at the date of application the following requirements must be met:
(a) the applicant must have been continuously resident in the UK for at least 7 years; and
(b) the decision maker must be satisfied that it would not be reasonable to expect the applicant to leave the UK.” [Emphasis added]
88. The complaint advanced in respect of the First-tier Tribunal’s assessment of the residence requirements of Appendix Private Life is misconceived.
89. The remaining complaint is that advanced by paragraph 11 of the written grounds; the First-tier Tribunal failed to explain how it had arrived at the conclusion that it was in the best interests of the children to return to Nigeria with their parents and resume their schooling.
90. Again, Mr Moriarty relied solely on the supplementary written submissions alone, which in turn primarily rely upon paragraphs 10 and 11 of the grounds of appeal.
91. No oral submissions were advanced before us by Mr Moriarty.
92. At its core, a reasons challenge is advanced. The First-tier Tribunal was reasonably entitled to rely upon the children returning to Nigeria with their parents, their limited time in this country and that no evidence was relied upon by the appellants addressing an inability to resume schooling on return. The approach adopted by the First-tier Tribunal is consistent with the guidance provided by the Supreme Court in Zoumbas v. Secretary of State for the Home Department [2013] UKSC 74; [2013] 1 WLR 3690. We conclude that the fact-sensitive assessment was appropriately undertaken, and the First-tier Tribunal clearly had in its assessment the context of the family unit before it. No error of law is identifiable in the assessment at [23] of the decision.
M. DECISION AND REASONS
93. The decision of the First-tier Tribunal sent to the parties on 28 July 2025 is not subject to material error of law. The appellants’ appeal is dismissed.

D O’Callaghan
Judge of the Upper Tribunal
Immigration and Asylum Chamber

2 September 2025