Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2024-004408
UI-2024-004230
UI-2024-004410
UI-2024-004224
(PA/60660/2024)
(PA/00067/2022)

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 9 December 2025

Before

MR JUSTICE BOURNE
UPPER TRIBUNAL JUDGE BRUCE
UPPER TRIBUNAL JUDGE FRANCES

Between

MS
EG
(anonymity order made)
Appellants
AND

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For MS: Mr G. Denholm, Counsel instructed by Duncan Lewis Solicitors
For EG: Ms C. Zapata-Besso, Counsel instructed by Duncan Lewis Solicitors
For the Respondent: Mr J. Holborn, Counsel instructed by the Government Legal Department

Heard at Field House on 7 and 8 October 2025

Anonymity

Unless and until a tribunal or court directs otherwise, the Appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them, any of their witnesses or any member of their families. This includes the expert witnesses referred to herein as YY and XX. This direction applies to, amongst others, both the Appellants and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings

DECISION AND REASONS

1. These appeals are linked because the Appellants were at one time a married couple. Although they are now divorced, there remains a common factual matrix.

2. Both Appellants seek leave to remain in the United Kingdom on the basis that if they are removed to Paraguay, there are substantial grounds for believing that there is a real risk that they will be imprisoned in conditions that will violate their rights under Article 3 of the European Convention on Human Rights.

3. The Secretary of State refused to grant leave on that basis, and on 15 July 2024 their appeals against that decision were dismissed by the First-tier Tribunal. Permission to appeal to this Tribunal has been granted to each Appellant in limited terms1.

Background

4. The background to this case is that the government of Paraguay seeks the extradition of the Appellants, who stand accused in that country of money laundering and defrauding a state-run pension fund of $35 million. For the purpose of this decision we need not give any more detail about the nature of that case. We must however consider the legal proceedings that have flowed from that extradition request. The chronology is as follows.

5. The Appellants, who are both EEA nationals, exercised their free movement rights to enter the United Kingdom in 20072. Criminal proceedings were launched against them in Paraguay on 6 June 2012 and an Interpol notice was subsequently issued, leading to the couple’s arrest in London in 2015.

6. In 2016 the extradition matter came before Senior District Judge Arbuthnot (“Judge Arbuthnot”) sitting at Westminster Magistrates. Judge Arbuthnot heard from the Paraguayan prosecutor and found that he had provided sufficient particulars of the conduct alleged; there was a case to answer and the Judge was satisfied that the requests related to specified extradition offences. Having heard from an expert in criminal law in Paraguay she was further satisfied that the Appellants would receive a fair trial. The question remained whether the prison conditions in which they would be held pending trial would breach their rights under Article 3 ECHR.

7. The position regarding MS was that he was to be held in the notorious Tacumbú prison in Asunción. Having had regard to the expert evidence of a Professor Rod Morgan, who had prepared a report in the case, Judge Arbuthnot “unhesitatingly” concluded that the general conditions in Tacumbú fall below Article 3 standards. She was however satisfied that in the case of MS this risk would be mitigated by an assurance provided by an official from the prison that MS would be held in the separate ‘Libertad’ unit, away from the general population. This unit is managed by a Christian charity; conditions are significantly better than in the main prison and there was less risk of violence from other prisoners. Expert evidence indicated that MS would be able to pay for any medications he needed through the prison dispensary.

8. In respect of EG, Judge Arbuthnot was told that she would be held in a women’s prison called Casa del Buen Pastor (‘Buen Pastor’). Although conditions there were found to be Article 3 compliant in general, EG had a number of medical difficulties, including two recent cancers, which could have made those conditions especially challenging for her. That being the case, Judge Arbuthnot sought further assurances from the Paraguayan authorities about the conditions in which EG would be held. Such assurances came by way of a letter dated 8 November 2016 from Ana Dina Coronel de Gomez, Director of Buen Pastor (‘Director Coronel’), to the effect that EG would be held in what was referred to as a ‘senior citizens pavilion’, a distinct area of the prison where the cell space was larger, there were amenities such as a shower, toilet, refrigerator and air conditioning. There was also access to an outdoor space.

9. Accordingly Judge Arbuthnot was satisfied that there was no real risk of a breach of the United Kingdom’s obligations in either case, and ordered referral to the Secretary of State so that the extraditions may proceed. The extradition requests in respect of the Appellants were approved on 17 January 2017.

10. The Appellants brought an appeal against Judge Arbuthnot’s decision to the Divisional Court (Lord Justice Burnett and Sir Wyn Williams). In a ‘rolled up’ hearing on 17 July 2017 the Court considered, and dismissed, two grounds of appeal. Only one need concern us here. That was the Appellants’ challenge to the decision in respect of Article 3. Permission was granted by the Court because Judge Arbuthnot had had not been shown the decision in Muršić v. Croatia (App no 7334/13) in which the European Court of Human Rights had reinforced its earlier guidance in Ananyev v Russia (42525/07) to the effect that there will be a strong presumption of a breach where a prisoner’s personal space amounted to less than 3 metres square. By the date of the hearing before the Divisional Court fresh assurances had been given by the Paraguayan authorities which met any concerns in that regard. The appeals were therefore dismissed, and an application for permission to appeal to the Supreme Court refused.

11. On 20 September 2017 the Appellants made protection and human rights claims. These were refused on 30 May 2018.

12. The Appellants’ appeals against those decisions came before the First-tier Tribunal (Judge Neville) in January 2020. His decision is dated 10 August 2020. Common to both Appellants was his finding that the Refugee Convention is not engaged by these cases, not least because the Appellants are not nationals of Paraguay. We interpolate that this finding has never been challenged and remains the case today: the only basis upon which the Appellants continue to advance their case is on human rights grounds. Judge Neville was further satisfied that there was no prospect of the Appellants being bailed in Paraguay pending trial: again, that remains the agreed factual position.

13. As to the individual appeals, Judge Neville considered first the evidence relating to EG. His starting point was that “it had always been common ground that the general conditions in Buen Pastor breach Article 3”. We read this “always” to mean in the proceedings before him, since that had not been the finding of Judge Arbuthnot. In any event, EG would be protected from those conditions, he found, by the provision of accommodation in the ‘senior citizens pavilion’ that was the subject of the 2016 assurance from Director Coronel. Judge Neville confessed to some unease about the fact that the expert witness Professor Morgan now stated, in a new report unseen in the extradition proceedings, that he had seen no evidence of such a pavilion when he had inspected the prison. Judge Neville however noted that Professor Morgan had seen some evidence of parts of the prison being refurbished: the pavilion may therefore have been under construction at the time of his visit. In light of the fact that the assurances, including those concerning Muršić space, had already been accepted by Westminster Magistrates and the Divisional Court, that was a more logical explanation than it being an invention of the Paraguayan authorities. The assurances had been found to be binding and reliable by the Divisional Court, and as Judge Neville noted:

“They are categoric that the appellant will be placed in particular accommodation in the prison that has the characteristics described in the evidence given by the Paraguayan authorities”

14. Turning to MS, Judge Neville found there to be no new evidence justifying a departure from the findings made by the previous courts, and the appeals were dismissed on Article 3 grounds.

15. The Appellants were subsequently refused permission to appeal, and were unsuccessful in seeking a Cart judicial review of that decision.

16. In June and September 2021 the Appellants made further representations to the Secretary of State, again requesting leave to remain on human rights grounds. The basis of these claims was threefold: expert evidence was submitted to the effect that the level of violence in the prisons - including organised crime - had increased dramatically; the level of healthcare available had diminished; the health of the individual claimants had deteriorated. Against the background of the Covid-19 pandemic, the Appellants submitted that these matters cumulatively amounted to a material change in circumstances and that there was now a real risk of a violation of Article 3 should they be removed to Paraguay.

17. The Secretary of State responded to these further representations on 29 October 2021 by refusing to grant leave to remain. Oddly, given the history of the matter thus far, no consideration was given to paragraph 353 of the Immigration Rules. It appears that the decision maker simply proceeded on the basis that these were indeed ‘fresh’ human rights claims, that is to say that significantly different material had been produced that created a realistic prospect of success before a properly directed Tribunal.

18. The Appellants duly appealed and on a succession of dates in 2023 and 2024 the matter came before the First-tier Tribunal (Judges G Clarke and Dempster). Their decision is dated 15 July 2024. In broad summary the Tribunal took as its starting point the earlier decisions, and concluded that the evidence before it did not justify departure from them. Both appeals were dismissed.

19. The Appellants now have permission to appeal against the First-tier Tribunal’s decision on several grounds, all of which relate to the ultimate question in these appeals: whether there are substantial grounds for believing that the Appellants face a real risk of suffering torture, inhuman or degrading treatment if they are removed to Paraguay pursuant to the extradition proceedings.

20. We propose to address the arguments presented to us thematically. Before doing so it is appropriate that we note a significant factual development relating to EG which will in due course have an inevitable impact on how her case will proceed.

21. On the morning of the 7th October 2025, the first day of the hearing, we were informed by Mr Holborn, Counsel for the Secretary of State, that the parties had learned overnight that Buen Pastor, the prison to which it is proposed EG be sent, has been permanently closed down. It was in fact closed down on the 6th of October, the day before the hearing. Mr Holborn submitted that in these circumstances it would not be appropriate for the hearing to proceed, since the Secretary of State needed some time to evaluate this new situation. He therefore applied for the appeals to be adjourned. An issue had also arisen in respect of MS. Recent medical evidence had been submitted showing that he had suffered a heart attack whilst in surgery. The application was resisted by both opposing Counsel.

22. Our primary task at the hearing was to decide whether or not the decision of the First-tier Tribunal should be set aside for error of law. On the face of it, that task was entirely unaffected by the fact that Buen Pastor has now closed; on the other hand, the point of proceeding on an artificial basis was questionable. We therefore considered the pros and cons of determining an issue which may turn out to be academic. Having done so we refused the adjournment application. Three points carried particular weight with us. First, we found force in Ms Zapata Besso’s submission that the First-tier Tribunal decision, if left undisturbed, may not become entirely academic. Even if everyone proceeded on the basis that all the findings on Buen Pastor could be disregarded, the decision could still have an adverse effect on EG’s case in future, for example when issues as to the reliability of assurances given by the Paraguayan authorities are decided. Second, we concluded that adjourning the case would likely lead to a substantial delay. It is likely that a further hearing to determine the outstanding issues in EG’s case will be necessary at some stage. It seems highly likely if not certain that it will be needed in MS’s case, and all three parties maintain agreement that the two cases should continue to be joined. It followed that if we adjourned, some months would pass before a new effective hearing, at which this Tribunal will very likely have to determine the very issues which we were being asked to determine at present. Third, the recent factual developments do not in any way disadvantage the Secretary of State in her ability to litigate the issues raised in the Appellants’ respective grounds.

23. We now turn to the grounds.

EG: GROUNDS, DISCUSSION AND FINDINGS

24. Following a renewed application for permission to appeal, EG now has permission to argue 7 of her 8 grounds. These fall into three areas of contention. Grounds 1 and 2 are concerned with the Tribunal’s approach to the medical evidence. Grounds 3, 4 and 5 relate to the assurances and the Tribunal’s understanding of previous judicial decisions, and allege a misapplication of the Devaseelan principles. Ground 6 relates to EG’s fear of gang violence within Buen Pastor. Ground 7 addresses the Tribunal’s approach to Article 8 ECHR, but as Ms Zapata Besso concedes, it stands and falls with her other grounds. We do not therefore propose to address it separately. For reasons that will become clear, we deal with the grounds out of turn.

The Assurances, Devaseelan and the Previous Decisions

25. The First-tier Tribunal were shown a series of documents relating to assurances about conditions in Buen Pastor prison.

26. The first is a letter dated 4 November 2016 from the Director Coronel, under reference of 594/16, to Michael Omo/Peter Caldwell of the Crown Prosecution Service stating that in the event that EG is extradited:

“…she would be placed in the ward of senior citizen, where there are currently 22 inmates, and the place has its own backyard, away from the rest of the inmates. [EG] will be placed in a prison cell which meets all the hygiene and security requirements, besides each sector is equipped with air conditioner, fan, private bathroom with a shower, private kitchen, refrigerator and other appliances. The place has access to penitentiary healthcare, where she will be assisted the best way, with physicians of the institution and in case of needing specialists the inmates are transferred to the corresponding health centre, as inspected in January this year by Mr Morgan. Please find enclosed photos of the ward…”

27. This letter, which we shall refer to as the ‘senior citizen pavilion assurance’ was sent to the CPS by the relevant Minister in the Paraguayan government, Ever Martinez F, under cover of a letter dated 8 November 2016, along with confirmation of its contents, in the form of a further assurance from lawyer Aldo R. Cantero Colman. Señor Cantero Colman explains that he is the prosecutor in the case, and that on the 4th November 2016 he visited Buen Pastor where he was shown around by Director Coronel. He explains that the Director “personally took me to the ward named ‘of senior citizen’ where [EG] will be confined”. He describes the ward, which he concludes to be “completely isolated from the other common inmates…a hygienic, quiet environment”.

28. Within two days Señor Cantero Colman was prompted to write to the CPS again, this time to clarify items “noted by the judge”. We take this as a reference to the questions raised by Judge Arbuthnot. In this further letter dated 10 November 2016 he again states that EG will be placed in a cell with one other person; that cell has a private bathroom for the exclusive use of the two persons in that cell. He reiterates:

“It’s worth noting that the ward where the cell is located, the one where [EG} would be confined, is comprised by 22 persons. This ward has its own backyard and a kitchen, as can be observed in the photos submitted. This ward named ‘senior citizen’ is separate from the other wards of the penitentiary and therefore, from the other inmates”.

29. We pause here to note that the sum of this correspondence is as follows. By 2016 the director of the prison in which EG was to be held had given assurances that she would be held in a particular unit known as the ‘senior citizens’ pavilion or ward, and that “the place” allows her to access healthcare as well as enjoy a number of amenities and fresh air. That this was all true had been confirmed by the prosecutor in the case, who had attended said unit and photographed it. Their correspondence had been ratified by the Minister, who had forwarded it all to the CPS in pursuit of the extradition of EG.

30. The next tranche of letters corresponds to the appeal before the Divisional Court. By her letter dated 7 July 2017 Director Coronel ‘ratifies’ her earlier letter of 4 November 2016. She states that in the event that EG is extradited, the administration will make sure that she is held in an individual cell with over three metres of personal space excluding furniture. We refer to this as the ‘Muršić assurance’. This came to the CPS under cover of a further letter from the Minister on 11 July 2017.

31. These were the assurances that had been before the Divisional Court and Judge Neville. They had been found by those decision makers to be reliable and binding as of the date of their decisions, and applying the principles in Devaseelan (second appeals – ECHR – extra territorial effect) Sri Lanka* [2002] UKIAT 00702, that had to be the Tribunal’s starting point.

32. We set all of this out by way of preamble in order to consider Ms Zapata Besso’s central complaint that in dealing with these cumulative assurances the First-tier Tribunal unjustifiably clung to those Devaseelan findings of earlier tribunals, without having rational or due regard to the new evidence before it; in doing so the Tribunal either misunderstood, or misconstrued, what the assurances actually said.

33. One of the documents that EG had sent to the Home Office as part of her ‘fresh’ human rights claim was a report by an expert on prisons in Paraguay who was known in the proceedings as YY. YY visited Buen Pastor in 2023 and was able to give informed and, it was accepted, expert evidence about conditions there. Without doubt the most significant part of that evidence was the categorical statement that the ‘senior citizens pavilion’ no longer existed. The part of the prison that had previously had that designation had ended up being used to house infected prisoners during the Covid-19 pandemic, and had not been returned to its previous use. There was now instead a cell which YY refers to as the ‘senior citizens cell’. This is a multi-occupancy room that is in a part of the prison where the general population can move around freely. YY concluded: “in general, because of the severe overcrowding at the prison, and its layout, it is very difficult to isolate particular prisoners from others - all spaces are shared”. The First-tier Tribunal accepted this evidence at its §129 and §134. It then says this:

“there is nothing in YY’s evidence on prison conditions that would lead us to a different conclusion than that reached by the Senior District Judge, The Divisional Court or Judge Neville”.

34. We are, with respect, unable to understand what reasons the Tribunal might have had for reaching that conclusion. The ‘senior citizen pavilion assurance’ given by Director Coronel was, as our designation suggests, very explicitly tied to EG being housed in a particular unit, in a particular part of the prison, where she would have good conditions and be isolated from the prison population at large. That this was the case was reinforced by the letter of Señor Cantero Colman. We reject with respect Mr Holborn’s suggestion that the second tranche of letters, the ‘Muršić assurance’ and its Ministerial approval, could be rationally read to suggest an alternative. That is because in that correspondence Director Coronel specifically refers back to the letter she had already provided, in July 2016, that being the ‘senior citizen pavilion assurance’. Judge Arbuthnot, the Divisional Court and then Judge Neville were plainly entitled to place the weight that they did on those assurances at the time of their decisions. At the time of the appeals before the First-tier Tribunal, however, there was unambiguous evidence that a fundamental matter underpinning the assurances – the existence of this ward or pavilion – had changed. The Tribunal’s finding that “there is nothing in YY’s evidence on prison conditions that would lead us to a different conclusion” does not, with respect, appear to us to confront that fact, and we therefore set aside the Tribunal’s reasoning on the assurances, and the extent of them, for a failure to give sufficient reasons.

35. It follows that we need not deal with ancillary points raised by Ms Zapata Besso about the Tribunal’s reasoning and understanding of the previous decisions.

The Medical Issues

36. The evidence before the First-tier Tribunal was that EG has several medical complaints. Amongst other things she has in the recent past suffered from breast and skin cancer. She suffers from chronic asthma that is poorly controlled, necessitating daily use of both preventative and relieving inhalers. A report from a Dr Wright explained that a failure to comply with that treatment regime, or patchy compliance, could lead to an acute asthma attack within weeks. She also suffers from generalised pain, and particular pain in her back and hip. A report from a Consultant Psychiatrist, Dr Galathappie, opines that EG suffers in addition from Post-Traumatic Stress Syndrome, severe depression and generalised anxiety disorder. She has self-harmed in the past and has expressed a wish to die. Dr Galathappie found that if EG were to be forcibly removed, there would likely be a significant adverse impact on her mental health, regardless of whether there was some treatment available to her there. He thought that this would create a risk of suicide.

37. The First-tier Tribunal began by listing all of the medical issues mentioned in the reports before it [§89] before considering whether any of these meant that EG could be considered to be a “seriously ill person”, that being the first question it had to consider if applying the framework set out for Article 3 ‘health cases’ by the decision in AM (Article 3; health cases) Zimbabwe [2022] UKUT 31, the guidance that follows Paposhvili v Belgium (41738/10) and AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17. The evidence showed that EG had recovered from both cancers and was now in remission. In respect of her asthma, the Tribunal refers to Dr Wright’s expert evidence and then says this:

“100. We accept that asthma is a potentially life-threatening condition if untreated or if medication is not available. We accept that [EG’s] asthma is poorly controlled as assessed by Dr Wright and that she will continue to require access to her medications if she is extradited to Paraguay. We will return to the issue of the availability of and accessibility to medication in Buen Pastor prison later in this decision. The question that we are now addressing is whether [EG] meets the definition of a “seriously ill person” on account of her poorly controlled asthma.

101. We rely on the fact, as noted by Dr Wright, that [EG] has not had any exacerbations with her asthma over the past year. She confirmed that this was the case in her oral evidence.

102. We rely on the fact that [EG] has not been admitted to hospital for any exacerbations of her asthma requiring her, for example, to be nebulised. The absence of such crises leads us to conclude that EVG is not a seriously ill person due to her asthma.

38. The Tribunal considers, and discounts, EG being able to establish that she is “seriously ill” with reference to her remaining conditions, and concludes, at its §110, that she does “not meet the first test in an Article 3 appeal on medical grounds and therefore she cannot succeed on an Article 3 case on medical grounds”. It then goes on to consider the wider question of whether the health issues she relies upon, and her ability access treatment for them, are matters relevant to whether the conditions she will experience in prison amount to a violation of Article 3. The Tribunal had regard to the evidence given by YY, “that there is healthcare provision and medical facilities in Buen Pastor. [EG] will be able to make an appointment with the healthcare facility and will be able to see a doctor or nurse. If required, the doctor can refer [EG] for treatment outside the prison” [FTT §130]. The Tribunal reminds itself of the findings of Judge Arbuthnot, upheld by the Divisional Court, that EG is a resourceful person, who could pay for medication and treatment if she required it.

39. We are satisfied that there were a number of errors in the Tribunal’s approach.

40. First, we agree with Ms Zapata Besso that it appears to have misunderstood its task in evaluating whether EG is a “seriously ill person”, in particular insofar as it relates to her asthma. The task of the Tribunal in these circumstances is, we find, to consider the impact of the illness or disability absent the medication keeping it at bay. For instance, in AM (Zimbabwe) the claimant was HIV+. At the time of the litigation he was fit and well, because his condition was being managed effectively with a combination of anti-retroviral medication. No one ever suggested that he wasn’t a ‘seriously ill person’. That is because the point of the case was to consider what he would be facing without that medication. The evidence of Dr Wright in this case was that EG suffers from serious and chronic asthma and that this is why she is using her inhalers every day. Dr Wright believed that without that medication the condition would be potentially life-threatening: the Tribunal was being asked the “relatively straightforward” question of whether, in those circumstances, EG would be a “seriously ill person”. It does not appear from its reasoning, in particular its §100-102, that this is the question the Tribunal asked itself. Instead it focused on how EG has been faring with her medication.

41. All of the parties agreed that if this ground was made out, which it is, then this would be a material error since Ms Zapata Besso had pleaded an Article 3 health claim. We are content, for the purpose of this decision, to proceed on that basis. We would however record, for the reasons briefly touched upon in oral argument, that that is not necessarily the right approach. The Paposhvili/AM line of authority is concerned with the particular circumstances in which Article 3 suffering arises because of “naturally occurring phenomena”3. In this case the alleged suffering is not arising ‘naturally’; it is arising because EG is being put in prison. Even if there is no conceptual difficulty with applying the AM approach in a prison case, we would question the utility of advancing a discrete ‘health’ claim in those circumstances. If Ms Zapata Besso cannot establish that her client will, because of her particular personal characteristics, suffer Article 3 ill treatment when all of her material conditions in prison are weighed cumulatively, it is difficult to see how she would succeed under a separate ‘Article 3 health’ head of claim.

42. That said, we move on to consider Ms Zapata Besso’s next ground relating to EG’s health. That is that the decision is flawed for a failure to have regard to material evidence, namely two reports prepared by Consultant Psychiatrist Dr Galathappie, which feature not at all in the Tribunal’s reasoning or decision. Mr Holborn pointed out, in the Tribunal’s defence, that the Tribunal plainly had in mind that EG suffers from some mental ill health. It does mention this, for instance at its §103:

“103. We accept that EVG has a history of anxiety and depression. EVG reported to Dr Wright that she has low mood and suicidal thoughts and a history of self-harm whereby she has hit her head on a wall and in those minutes wishes to die. EVG last self-harmed in 2021. She has been referred to the prison Mental Health Team in the past and has been given counselling sessions but it appears that the last of these sessions was in 2018. EVG also reported to Dr Wright that she has not had any mental health support since the beginning of the Pandemic”.

43. We have read that passage, and having done so, find it to make the omission all the more difficult to understand. Dr Galathappie’s reports were produced in 2023, and so obviously post-dated the pandemic. We are told by Ms Zapata Besso that he was in fact one of the “number of expert witnesses” who gave live evidence in the appeal: referenced at the FTT §61. When a Consultant Psychiatrist gives live evidence in an appeal about a material matter in issue, it is incumbent on a Tribunal to make findings on that evidence. Whilst Mr Holborn was also able to make some cogent submissions about the weight that might have been attached to Dr Galathappie’s evidence, these were ultimately unhelpful since we have no means of knowing whether the First-tier Tribunal would have agreed with him. Without weighing in the balance an expert report specifically commissioned to address this topic, the Tribunal’s reasoning on EG’s mental ill-health is, we find, incomplete.

44. The final ground relating to EG’s health concerns the Tribunal’s treatment of the evidence of YY. Like Dr Galathappie, YY supplemented their written evidence by giving live evidence at the hearing, albeit remotely. It is clear from the decision, and indeed the transcripts of the hearing which we have been shown, that YY was extensively cross examined, and that their evidence was at the heart of both parties’ submissions. At its §122 the First-tier Tribunal refers to YY’s evidence about access to healthcare in Buen Pastor. The Tribunal states: “given the importance of this issue, we set out YY’s findings on this issue in full”. It then cites three paragraphs of YY’s written evidence before concluding, at §123, that “it is clear from YY’s evidence that medical treatment is available in Buen Pastor”. Ms Zapata Besso submits that this was a partial reading of YY’s evidence, and that the Tribunal has failed to engage with, or give reasons for rejecting, other important things that YY had to say. In particular the decision does not engage with YY’s concern that “there is a real risk that EG will not have access to the specific medication and treatment that she requires if she is not personally able to pay for them to be brought into the prison and provided to her there”. YY reached that conclusion having had regard to the logistical difficulties faced by the prison in securing prisoner transfers for medical treatment, the bureaucracy involved in ordering more expensive medications in, the unreliability of supply chains in Paraguay and the fact that prisoners can face obstacles in raising the money they need to pay for their medications. YY had for instance interviewed one prisoner with long term health concerns who had to work to pay for her medications and special diet; when she was unable to work, she could not pay, and so she had to go without.

45. In reply Mr Holborn offered a robust defence of this part of the First-tier Tribunal’s decision, taking us to the transcript to submit that YY’s evidence on these matters was “nuanced”. That is a term with which we agree. The Tribunal’s conclusion that “medical treatment is available in Buen Pastor” is clearly right. What that medical treatment might consist of, and how “available” it might be, appears to depend on a multiplicity of factors. We are concerned that these degrees of nuance do not appear to feature in the Tribunal’s reasoning. Our concern is reinforced by the concluding remarks that the Tribunal make on this matter:

“125. At this point, we remind ourselves of Deveseelan principles. In 2016, the Senior District Judge found that the conditions in Buen Pastor prison would not breach Article 3 and specifically found that the Senior Citizens’ Wing was Article 3 compliant. The Learned Judge found that [EG] would be able to access the medication that she is prescribed and found that, having paid for her own cancer treatment in the United Kingdom, she is a resourceful person who would be able to fund any medication she requires. The Judge was quite clear that the assurances given by Paraguay are reliable and would be enforced”.

46. As we have found, those assurances, and Judge Arbuthnot’s acceptance of them, were firmly based on EG being housed in the senior citizens pavilion, as the Tribunal here notes. To the extent that the Tribunal relies on that accommodation as a relevant factor in whether the medical treatment EG requires would be available, its reasoning is flawed: the pavilion no longer existed at the date of hearing, and those new circumstances required a careful evaluation of all of the evidence as it stood at that date.

Gangs

47. This ground can be dealt with briefly. When the Appellants made their fresh representations to the Secretary of State back in 2021 they both relied, inter alia, on a significant uptick in violence in the prison system in Paraguay, the increased presence of organised crime and the concomitant lack of resources to deal with it. The Secretary of State had responded by relying on the assurances, and the previous decisions, that EG would be kept separate from the main population. As we have already rehearsed, the mechanism for that separation had, by the date of the hearing before the First-tier Tribunal, gone. The senior citizens pavilion was shut. That was in itself a significant change of circumstances which required the Tribunal to give anxious scrutiny to the claim that without the protection of that separate wing, EG would be at risk from inter-prisoner violence. As such its brief allusion to these matters at its §143 was not sufficient:

“YY also gave evidence that the prison is overrun with drugs and violence and is run by gangs. We find that none of this evidence is materially different from that before the previous courts that have considered this matter”.

48. Further, evidence had been presented to the Tribunal that this risk had a particular character in Buen Pastor. EG is infamous in Paraguay for her alleged involvement in stealing $35 million. The evidence presented by country expert XX to the Tribunal highlighted two classes of prisoners who would be likely to have a particular interest in her for that reason. The first are high-ranking members of the EPP, a Marxist-Leninist guerilla group, whose modus operandi has included kidnap for ransom in order to fund their insurgency. The other are members of Clan Rotela, a Paraguayan organised crime group who had, in the hiatus between the Divisional Court hearing and the First-tier Tribunal appeal, consolidated their ascendancy by driving out Brazilian-based rivals. The expert evidence was to the effect that either one of these groups could cause EG harm if they can get access to her. None of it is addressed in the decision. We are satisfied that this was evidence of a different order from the general threat of violence considered by previous tribunals. Indeed, that would also seem to have been the view of the Secretary of State when she decided to treat EG’s further submissions as a ‘fresh’ claim. The failure to engage with that evidence was therefore a further error in approach.

MS: GROUNDS, DISCUSSION AND FINDINGS

49. MS has permission to challenge two aspects of the First-tier Tribunal decision: the approach taken to risk of violence from gangs, and its consideration of his health issues.

Gangs

50. It has always been accepted that the conditions in which the general population live in Tacumbú prison fall below Article 3 standards. It has always been accepted that MS was no ordinary prisoner. The crime that he has been accused of has gained him significant notoriety in Paraguay, and this gave rise to specific concerns in his case. The expert witness YY explains:

46. In my view, anyone who is perceived as having access to money will be a target of extortion and threats. Everyone in the prison wants money, since money is needed to buy all of the essentials that mitigate the harshness of prison. A man who is alleged to have stolen a lot of money, particularly someone whose case is so well known in Paraguay as [MS], and is a foreigner (including holding a European nationality), will be vulnerable to threats and violence, as others will see him as having the means to pay to avoid this”.

51. These were the reasons that the prison authorities in Paraguay decided to make special arrangements for the imprisonment of this “high profile” prisoner. The assurances given in 2016 were that he is to be held in a segregated unit known as ‘Libertad’. It is run by the Mennonite Christian brotherhood as a charitable endeavour and conditions therein are said to be markedly better than in the main prison. Judge Arbuthnot, the Divisional Court and Judge Neville had all agreed that conditions in this unit were Article 3 compliant; the prisoners there, they reasoned, would be protected from inter-prisoner violence.

52. As we set out at our §16 above, one plank of the ‘fresh claim’ filed by the Appellants was that these findings, first made in 2016 and last upheld in 2020, no longer held good. MS advanced expert evidence to show that so far as violence was concerned, two things had changed. First, there had been a dramatic increase in violence within the prisons in Paraguay and that this placed an additional burden on the prison authorities who did not have the resources or staff to manage it effectively. Second, that in Tacumbú much of that violence was driven by a power shift within the prison. It is now run from within by a violent narco-trafficking gang known as Clan Rotela, who had gained ascendency during the pandemic. The point made in the evidence before the First-tier Tribunal was that this gang were of a different order from the individual prisoner who might see MS as a target: they would have the motivation and means to get to MS whether he was in the Libertad unit or not.

53. Both XX and YY addressed this matter in their evidence. YY’s assessment was as follows:

“There is at least a real risk that gangs and other violent individuals would be able to access Libertad in order to threaten, harm and extort [MS] once his presence there becomes widely known, as it inevitably will be””.

54. How would these gangs and violent individuals be able to access Libertad? The primary concern of the expert witnesses was corruption. Although there was no evidence to say that the Mennonites who run the unit could be corrupt, they were short staffed. Three guards from the main prison were stationed at the internal entrance (ie at the crossing into the main prison). At night it is inmates themselves, known as “internal supervisors” who “enforce the rules”. YY’s evidence on this was as follows:

“the high level of corruption within the prison staff means that there are very real risks that internal supervisors are also corrupt (or can be corrupted) as they have knowledge about the internal workings of the unit and are in a powerful position compared to other inmates. Through prison guards and/or the internal supervisors it would be possible for gangs from the main part of the prison to influence the inner workings of the unit”.

55. In his submissions Mr Denholm took us to several passages dealing with the matter of “permeability”. Again, the point is pithily explained by YY:

“44…it is not difficult for inmates within the main Tacumbú prison to enter the Libertad unit. While those not living there are not strictly allowed in, the prison guards at the Libertad unit can be bribed for small amounts of money to allow non residents access (I describe this phenomenon in relation to the main prison at paragraph 57 below). The permeability of Libertad unit means that threats to its residents can enter from the main prison, including from gangs. One example of this was an incident in about 2020 when there was a disturbance in the main Tacumbú prison, and inmates from there took 18 guards from the main prison hostage within the Libertad unit. Although both the inmate hostage-takers and the guard hostages were from the main prison, the permeability of the Libertad unit meant that it was convenient for those inmates to take the guards hostage there”.

56. YY adds that the reach of Clan Rotela in particular has “got a lot worse since the Covid 19 pandemic when the prison was locked down and gangs expanded their power and influence within the prison”.

57. We pause there without setting out any of the many other references to the evidence to which we were taken. The short point is that the case for MS before the First-tier Tribunal was that the power balance within the prison had shifted since Covid, and that the expert evidence about what was going on in Tacumbú had developed since the Devaseelan findings of the previous tribunals had been made.

58. We are unable to find any reference in the body of the First-tier Tribunal decision to any of that. The Tribunal properly reminds itself of the findings made by Judge Neville, the Divisional Court and Judge Arbuthnot. It does conduct a careful analysis of a different point, relating to whether MS could worship as a Catholic within the Libertad unit. Nowhere does it address the risk of violence from gangs. In his submissions Mr Holborn acknowledged this omission, but submitted that it is “implicit” that the First-tier Tribunal had this issue in mind. Inter-prisoner violence had been a feature of the case as long ago as the judgment of Judge Arbuthnot in the extradition proceedings, and the First-tier Tribunal was properly entitled to find that the evidence of XX and YY, although weighty and recognised to be expert, was simply more of the same. We are unable to agree. For the reasons we summarise above, this was new evidence making a new point about factual developments on the ground; that this is so is implicitly accepted in the Secretary of State’s decision to treat the submissions as a fresh claim. It merited consideration; it was not given it. We find that this omission was an error in approach that cannot be remedied by our making a summary assessment of the evidence ourselves. We therefore reject Mr Holborn’s alternative submission, that the evidence was not capable of leading to a finding in MS’s favour. That is a matter that can only be determined after the evidence has been given careful and anxious scrutiny.

Health

59. MS has health problems. At the time of the extradition proceedings in 2016-17 he had diabetes and high blood pressure, both of which, the SDJ held, could be treated with commonly available drugs. The evidence at that time, from Professor Rodney Morgan, was that the required medication could be purchased in the prison dispensary. The prisoners in Libertad can work to earn money, and there was no reason why MS could not do the same, and fund his own treatment. These findings were not revisited by Judge Neville in 2020.

60. Before the First-tier Tribunal the medical evidence was that both conditions had worsened, with MS’s physician Dr Moisey expressing real concerns about his hypertension in particular. MS had developed other conditions including thyrotoxicosis and had issues with his heart. The experts XX and YY set out what they saw as being various obstacles to MS having uninterrupted and safe treatment in Libertad to manage these various conditions.

61. The First-tier Tribunal accepted that there had been a deterioration in MS’s health [at its §171]. It summarised the evidence of YY about conditions in Libertad and in particular, what difficulties YY foresaw in MS being able to access medications and needles for his insulin injections [§§177-186]. It then said this:

“186. We rely on the same reasoning in Paragraphs 139 to 142 above relating to EVG. We have already accepted YY’s expertise on prisons in Paraguay. However, the reports of YY are expert opinion relating to part of MBS’s case, albeit an important part. As we stated earlier, experts are required to limit themselves to providing opinions on matters within their expertise and we accept that this is what has happened before us.

187. The role of the Tribunal is different. We must step back and assess the totality of the evidence in the round. An integral part of this assessment is to place all of the evidence, including that of YY and the medical experts, in the context of the assurances from the Paraguayan authorities.

188. When we do so, we remind ourselves that the Paraguayan authorities have given assurances that MBS will not suffer treatment that is contrary to Article 3. In line with the findings of the Senior District Judge, the Divisional Court and those of Judge Neville, we find that these assurances are reliable and will be enforced by the Paraguayan authorities for MBS’s advantage and benefit. The fresh evidence does not displace or nullify the reasons why the assurances can be relied upon. In so finding, we adopt the findings of Senior District Judge Arbuthnot in respect of the criteria set out in Paragraph 189 of Othman.

62. Mr Denholm’s complaint about that reasoning is that it does not appear to acknowledge that the assurances regarding Tacumbú are entirely silent on the matter of access to medical care. They do not state in terms that MS will be protected from a breach of Article 3. What they say, and what they were found to say by previous tribunals, was that he would be held in Libertad. The fact that in 2016, 2017 and 2020 judicial fact finders were satisfied that this arrangement meant that his healthcare requirements would at that time be met was no more than a starting point. It is not enough to say “the fresh evidence does not displace or nullify” those Devaseelan judgments. It is incumbent on the Tribunal to engage with the new evidence and explain why. Although some of that evidence is summarised in the preceding paragraphs, no actual findings are reached.

63. In reply Mr Holborn agreed that the First-tier Tribunal certainly should have phrased its findings on this matter better. He however maintained that the ultimate conclusion reached by the Tribunal was justified on the basis of the evidence before it.

64. We say nothing about the substantive merits of MS’s health case. Whether Mr Holborn is correct will be a matter to be determined on re-making. We are satisfied that the Tribunal’s decision regarding MS’s health is flawed for a lack of reasoning and we do not think it appropriate, at this stage in the litigation, that we simply remedy that defect by providing some of our own. The Tribunal had been presented with evidence to the effect that the situation had changed, and in response it did little more than rely on assurances that were, by the date of the appeal before it, at least seven years old.

65. For those reasons we find ground (ii) in MS’s appeal to be made out.

Decisions and Directions

66. The decision of the First-tier Tribunal is set aside to the limited extent identified above. In particular:

i) Neither Appellant was granted permission to appeal its findings made under the heading ‘political motivation and fabrication’ at its §§66-88 and those findings are therefore preserved;

ii) The First-tier Tribunal’s decision on EG’s Article 3 claim is set aside;

iii) The First-tier Tribunal’s decision on MS’s Article 3 claim is set aside;

iv) The First-tier Tribunal’s reasoning on Article 8 is also set aside, in light of the parties’ agreement that this was entirely contingent on its findings regarding Article 3.

67. The decisions in the respective appeals will need to be remade on that basis. Having had regard to the matters set out at paragraph 7.2 of the Practice Statement of 25 September 2012 we are satisfied that the appropriate course of action would be remittal to the First-tier Tribunal for the appeals to be heard afresh by a differently constituted Tribunal.

68. As we allude to above, there have been some factual developments since the First-tier Tribunal heard the appeal. MS has experienced some significant new health issues. EG is, it would seem, no longer going to Buen Pastor. In view of these matters, and the overall complexity in the appeals, the First-tier Tribunal may wish to list a preliminary case management hearing before final listing.

69. There is at present an anonymity order in force, made by Upper Tribunal Judge Gill by her order of 25 September 2025. That order extends not only to the Appellants, but to the expert witnesses YY and XX, who did not wish to be identified for commercial and security reasons. Neither party objects to that order remaining in place.

Upper Tribunal Judge Bruce
29 October 2025