Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004489

First-tier Tribunal No: HU/53011/2023
LH/04157/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 09 April 2025

Before

UPPER TRIBUNAL JUDGE KHAN
DEPUTY UPPER TRIBUNAL JUDGE GILL

Between

WINFRED KWABLA DOGBEY
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Agata Patyna, of Counsel instructed by Legal Rights Partnership
For the Respondent: Ms Sandra Mackenzie, Senior Home Office Presenting Officer

Heard at Field House on 12 February 2025

DECISION AND REASONS

Introduction

1. This remaking decision should be read in conjunction with the decision issued on 2 January 2025 in which the Upper Tribunal found that the First-tier Tribunal (‘FtT’) had materially erred in law on all grounds of appeal, with grounds 1(3) and 2 having been conceded by the Respondent. The FtT’s decision was set aside with all other findings preserved. The appeal was adjourned to be remade by the Upper Tribunal.

Background

2. The following summary sets out the factual background to the appeal. The appellant is a 52-year-old Ghanaian citizen. He came to the UK on 28 April 2013 on a visa until 15 January 2016. He claimed asylum on 23 June 2016. This was refused. There was then a protracted history of lodging further submissions. He concedes that he lied in his asylum claim and it is no longer pursued. He lodged further submissions on 14 May 2021 which forms the subject matter of this appeal.

3. The appellant contracted Covid-19 in May 2020, and was hospitalised requiring critical care on account of having suffered a very severe episode of Covid related pneumonia with associated multi-organ failure. The appellant’s GP, in a letter dated 3 July 2024, describes the appellant as having post Covid-19 syndrome. The appellant has also been diagnosed with moderately severe Post-Traumatic Stress Disorder (‘PTSD’) and a moderate Major Depressive Disorder (‘MDD’).

4. His appeal is brought on the basis of Article 3 of the European Convention on Human Rights (‘ECHR’) relating to medical grounds and Article 8 ECHR in respect of his private life claim on the basis that there are “very significant obstacles” to his integration in Ghana if he is returned.

5. On the 8 August 2024, the FtT dismissed the appellant’s appeal. Following a statutory appeal hearing held on 29 November 2024, the Upper Tribunal (‘UT’) found that the FtT judge had materially erred in law in respect of grounds 1(2), 1(3) and 2. The UT allowed the appeal set aside the FtT decision, and directed that it be remade by the UT. All other findings were preserved. The chronology of this appeal and the detailed outcomes of the previous hearing are set out in the statutory appeal (error of law) decision issued on 2 January 2025 and need no repetition here.

The Remaking Hearing

Preliminary Issues

6. Ms Patyna who appeared on behalf of the appellant made two applications to adduce further evidence, pursuant to rule 15(2A) Tribunal Procedure (Upper Tribunal) Rules 2008. The first of these applications related to the Appellant’s Supplementary Bundle (9 pages), which contained updated medical records. The second application related to an Addendum Report by Dr Sarah Heke, Consultant Clinical Psychologist, dated 10 February 2025 which sought to clarify the confusion in the terminology, raised by the FtT judge’s decision (namely whether the use of the words ‘highly intolerable’ amounted to ‘intense suffering’) and dealt with the issue of whether the appellant would suffer irreversible harm if he returned to Ghana. No objection was made by Ms Mackenzie on behalf of the respondent and we agreed to admit the additional evidence.

7. The parties reaffirmed their agreement that this case should be remade in the UT (‘the Tribunal’) and agreed the following issues required determination by the Tribunal:

(i) In respect of Article 3 ECHR, whether treatment suffered by the Appellant would reasonably likely reach the threshold of intense suffering; and
(ii) In respect of Article 8, even if treatment does not reach the Article 3 ECHR threshold, whether the consequences amount to very significant obstacles to integration.

Preserved findings

8. The preserved findings, as set out in the UT decision at [4], include:

“…that the appellant was a seriously ill person at [15] and that necessary treatment might not be available to him in Ghana at the present time at [17]. The Judge also accepted the evidence of Professor Hodzic, the country expert relied on by the appellant and the conclusions of Dr Sarah Heke, a Consultant Clinical Psychologist.”

Discussion

9. We were provided with a 408-page Composite Bundle, the Appellant’s Supplementary Bundle and Dr Heke’s Addendum Report.

10. Ms Mackenzie relied upon the Reasons For Refusal letter (‘RFRL’) dated 23 December 2023, Country Information Note Ghana: Medical treatment and healthcare Version 2.0 August 2022 (‘CIN’), and the case of Akhalu (health claim: ECHR Article 8) [2013] UKUT 00400 (IAC) in support of her submissions.

11. Ms Patyna relied upon her Speaking Note dated 11 February 2025 and the Appeal Skeleton Argument dated 19 February 2024. She submitted that the FtT made positive findings in relation to the expert evidence of Dr Heke and Professor Hodzic, the appellant’s medical condition and the non-availability of treatment in Ghana meaning that most of the components of the AM (Zimbabwe) v SSHD [2020] UKSC 17 test (interpreting Paposhvili v Belgium [2017] Imm AR 86) were resolved in the appellant’s favour.

12. The appellant and his partner both attended the hearing, gave evidence and were cross examined by Ms Mackenzie. Having heard the evidence and submissions we reserved our decision, which we now set out below. We have referred to the relevant evidence and submissions in our discussion below.

Article 3 Threshold Test

13. It was accepted by the parties that the initial threshold test in Paposhvili v Belguim (41738/10) [2017] Imm A.R. 867 is set out in AM (Art 3; health cases) Zimbabwe [2022] UKUT 00131. This requires the appellant to establish that they are ‘a seriously ill person’ and they must adduce evidence capable of demonstrating that substantial grounds have been shown for believing that as a seriously ill person they would face a real risk, on account of the absence of appropriate treatment or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in their state of health resulting in intense suffering, or to a significant reduction in life expectancy.

(i) “a seriously ill person”

14. Ms Mackenzie argued that limited weight should be placed on Dr Heke’s report dated 30 October 2023 and Addendum Report dated 10 February 2025, because Dr Heke had gone outside of the scope of her expertise. In this regard, she was a Consultant Clinical Psychologist and not a psychiatrist, nor an expert in physical needs. Further her report did not make any reference to the appellant’s GP records which was a significant omission.

15. Ms Patyna argued that Ms Mackenzie was seeking to incorrectly re-open issues not previously raised at the statutory appeal or issues that had been resolved by the FtT (relying on Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC)). She submitted that the FtT had accepted the expert evidence and conclusions of Dr Heke about the appellant’s medical condition. She further submitted that Dr Heke’s Addendum Report supports the appellant’s case and can properly be relied upon.

16. We agree with Ms Patyna’s submissions, the FtT found that the appellant was a seriously ill person and accepted the conclusions of Dr Heke’s expert’s report. These are preserved findings. The issue regarding Dr Heke being a psychologist and not a psychiatrist have not previously been raised by the respondent. The matters addressed in Dr Heke’s two reports are within her area of expertise, again an issue that has not previously been raised by the respondent.

17. The further medical evidence adduced in the Appellant’s Supplementary Bundle includes correspondence from Buckinghamshire Talking Therapies confirming the appellant has been in receipt of Cognitive Behavioural Therapy (‘CBT’) treatment. Furthermore, hospital correspondence indicates he is taking part in a Covid-19 Rehabilitation Programme, is receiving physiotherapy appointments, has appointments arranged for CT Abdomen and Pelvis scans and an Ultrasound of the abdomen, and has been referred to the Neurology department at All Bucks Hospital.

18. We are therefore satisfied that the appellant’s health conditions persist and have seen no evidence to the contrary. We therefore bear in mind the preserved findings and determine that the appellant is a seriously ill person.

(ii) availability of the required treatment
(iii) accessibility of the required treatment

19. Ms Mackenzie submitted that a careful reading of Professor Hodzic’s report was required and argued it demonstrated that treatment and medical care is available to the appellant in Ghana. She referred to the paragraph headed ‘Depression, Trauma and Underresourced Mental Health Sector in Ghana’ which states, ‘Services and resources are largely concentrated in psychiatric hospitals rather than more accessible community settings’. Thereby, submitting that although resources were concentrated in psychiatric hospitals, they were nevertheless available to the appellant.

20. Ms Mackenzie further submitted that the CIN at paragraph 20.1.2, headed “Mental healthcare”, confirmed that there are psychiatric hospitals in Ghana. Albeit, conceded that paragraph 20.1.3 went on to state that the psychiatric care in the country is insufficient to meet demand.

21. With regards to the availability of physiotherapy Ms Mackenzie submitted that Professor Hodzic’s report confirmed that it was available in Accra, the appellant states in evidence that his brother works as a taxi driver in Accra, and his partner confirmed in her evidence that she would assist the appellant financially if he returned to Ghana. Therefore, Ms Mackenzie submitted that physiotherapy was available to the appellant.

22. Ms Mackenzie further submitted that Professor Hodzic’s report, at page 8, indicated that trauma focused CBT was available:

“The single trauma focused CBT treatment provider is located in a suburb of Accra and works in a private practice that serves upper class Ghanaians. Her office would not be accessible for Mr. Dogbey, as it would be a four-hour drive on public transportation…”.

23. It was submitted that the appellant’s partner could meet the costs of this treatment.

24. Ms Patyna submitted that the appellant’s Article 3 claim was supported by the evidence of two experts, which was accepted by the FtT. Professor Hodzic’s report expressly stated that the appellant is ‘highly unlikely’ to receive professional mental and physical health services in Ghana. Only 0.6% of Ghanaians with a major depressive disorder are able to receive treatment. Even those patients who are able to access mental health treatment received poor quality of care. Ghanaians with severe mental health illnesses are referred to psychiatric hospitals and prayer camps. They experience ‘human rights abuses in both’ where they suffer further trauma. The Ghanaian crisis of mental health care and the mistreatment of the mentally ill has received international attention from the United Nations, human rights groups, the medical and research community, and the world media. Neither the hospitals nor the prayer camps provide adequate health care. In hospitals patients are ‘forcibly coerced, including sedated and beaten, into taking the prescribed mental health medication, and are given electroconvulsive therapy without use of anaesthesia’. The National Health Insurance Scheme (‘NHIS’) does not cover psychiatric or psychological counselling services. Furthermore, post Covid treatment in Ghana is ‘practically non-existent’.

25. Ms Patyna further submitted that the CIN supports the evidence given by Professor Hodzic and states psychiatric care in Ghana is insufficient to meet demand and the ‘country’s mental health system faces many severe challenges…In terms of access to mental healthcare by the public, only 2.8% of mentally ill persons are able to access treatment, with most mental health patients unable to receive professional care…’

26. We carefully considered the submissions made by the parties. The FtT accepted the evidence of Professor Hodzic and the CIN. The judge found that the CIN supported the evidence of Professor Hodzic and concluded that although ‘some treatment is available, it would not in reality be accessible to the appellant at the present time.’ These are preserved finding.

27. The CIN and Professor Hodzic’s expert’s report describe the availability and quality of healthcare for PTSD as ‘severely compromised’ and states that the mental health system faces ‘many severe challenges’. A number of reasons are cited including lack of resources and professionals, there being only one private psychologist trained in trauma focused therapy, the NHIS does not cover psychiatric or psychological counselling services, counsellors who practiced in Ghana were not regulated and had been evidenced to cause harm to patients, psychiatric hospitals had been reported as routinely shackling patients, and there is no holistic care or evidence based treatment. Given the severe and systemic problems identified in the provision of mental health services, and with no evidence before us to suggest that the position is likely to change, we determine that mental health treatment is not reasonably likely to be accessible or become available to the appellant for his mental health conditions.

(iv) serious, rapid and irreversible decline in their state of health resulting in intense suffering or a significant reduction in life expectancy

28. Ms Mackenzie submitted that limited weight should be placed upon the reports of Dr Heke, for the reasons previously outlined. She submitted that the appellant had not discharged the burden of proof or met the high threshold of the test in AM (Art 3; health cases) Zimbabwe.

29. Ms Patyna submitted that the first report of Dr Heke was accepted by the FtT and this was a preserved finding. She further submitted that Dr Heke’s Addendum Report does not go outside the scope of her expertise as it clearly states it is made having now considered the report of Professor Hodzic, which was not available to Dr Heke at the time of her first report. Dr Heke states ‘…assuming [Professor Hodzic’s] conclusions are correct (which I appreciate is ultimately an issue for the Tribunal), I now feel able to confidently conclude…” thereby setting out the parameters and limitations of her conclusions.

30. At [2.1] of the Addendum Report Dr Heke clarified her conclusion that ‘immediate suffering in my opinion would be highly intolerable’, in her first report, meant that the level of suffering would be ‘intense and overwhelming’ and the appellant ‘would not be able to cope with the rapid and severe decline in his mental health that I believed would occur if he was returned to Ghana’. The Addendum report goes on to conclude “…the likely decline in [the appellant’s] mental health I reported in my previous report, and I believed would be serious and rapid would, also be irreversible”. Thereby clarifying the position in her first report and dealing with the issue at the heart of this appeal.

31. As stated previously, we agree that the FtT accepted the first report of Dr Heke and that these findings were preserved.

32. We agree with the submissions made by Ms Patyna with regards the case of Lata and the matters raised by Ms Mackenzie today, which either have not previously been raised or which seek to go behind the preserved findings of the FtT. The submissions regarding Dr Heke being a psychologist and not a psychiatrist and Dr Heke providing an opinion on matters outside the scope of her expertise fall into this category. We therefore are not persuaded that limited weight should be placed on Dr Heke's first report or Addendum Report.

33. We considered Dr Heke’s conclusions in her first report which described the appellant as being at risk of “suffering a serious, rapid decline in his state of health… the question of whether this is irreversible is harder to determine as this would depend on whether treatment would later become available, as recovery is still possible but the immediate suffering in my opinion would be highly intolerable”. At the time that this report was prepared Dr Heke had not been provided with Professor Hodzic’s report.

34. In Dr Heke’s Addendum Report she clarified her conclusion, having considered Professor Hodzic’s report. As stated previously the evidence of Professor Hodzic was accepted by the judge and these are preserved findings. Dr Heke states that her conclusion has not changed, namely that the appellant’s immediate suffering would be intolerable, due to the intensity of the mental distress that the appellant would suffer if returned to Ghana. Dr Heke goes on to state that the level of suffering would indeed be ‘intense and overwhelming’ and ‘the suffering would be intolerable meaning that [the appellant] would not be able to cope with the rapid and severe decline in his mental health that I believed would occur if he was returned to Ghana and could not access the treatment he needed…’. She further concludes that her consideration of Professor Hodzic’s report has ‘only strengthened and cemented my opinion’ and the appellant ‘if returned to Ghana would suffer intense and irreparable suffering’. We are satisfied, in this context, that Dr Heke’s use of the word ‘irreparable’ has the same meaning as ‘irreversible’.

35. We have not been provided with any evidence that undermines Dr Heke’s Addendum Report and therefore accept the evidence contained within it.

36. We therefore find, based on Dr Heke’s first report and Addendum report, that the appellant would face a real risk of being exposed to a serious, rapid and irreversible decline in his state of health resulting in intense suffering. Accordingly, we find that the threshold test has been met.

37. The Respondent has not provided any evidence to rebut the serious doubts created by the Appellant’s prima facie case, nor sought to discharge their residual obligation by seeking adequate assurances from Ghana or preparing their own package of measures.

38. The Appeal is therefore allowed on Article 3 ECHR grounds.

Article 8

39. While we heard detailed submissions in relation to Article 8, we see no utility in addressing those arguments as the appellant succeeds on the basis of Article 3.

Notice of Decision

40. We remake the decision by allowing the appeal under Article 3 ECHR.

A.K.Gill

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

21 March 2025