Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004548

First-tier Tribunal No: HU/20312/2019

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 11TH November 2025

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

ZC
(ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:

For the Appellant: Mr B Malik, counsel instructed by A Vincent Solicitors
For the Respondent: Ms E Blackburn, Senior Home Office Presenting Officer

Heard at Birmingham Civil Justice Centre on 24 October 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. This decision should be read in conjunction with the decision promulgated on 12 August 2025 in which the Upper Tribunal found that the First-tier Tribunal had erred in law.
Anonymity
2. I have continued the anonymity order made by the First-Tier Tribunal. I have considered the public interest in open justice, but conclude that it is outweighed by the importance of preserving the confidentiality of the medical evidence relating to a witness in this case.
Factual Background
3. The appellant is a national of China now aged 34 who arrived in the United Kingdom during 2010 with leave to enter as a student. After his leave was curtailed he remained without leave. He applied for asylum in 2014 and did not appeal the decision refusing his application.
4. In 2019, the appellant was convicted of a criminal offence and sentenced to 18 months’ imprisonment. Following his conviction the appellant made further submissions on protection and human rights grounds, which the respondent refused in a decision dated 28 November 2019. The appellant appealed that decision as well as his conviction. The latter case was dismissed. The respondent issued a supplementary decision letter on 22 March 2024 in which it was accepted that the appellant was a victim of modern slavery. The First-tier Tribunal dismissed the appellant’s appeal following a hearing which took place in June 2024.
5. The First-tier Tribunal’s conclusions were set aside by the Upper Tribunal in relation to Exception 2 to deportation; whether there was a risk of trafficking for the appellant or his partner (referred to hereafter as ‘XX‘) if the appellant were deported and Article 3 on mental health grounds. The remaining findings which concern the appellant’s asylum claim based on religion, an Article 3 claim based on destitution and Exception 1 were preserved.
The remaking hearing
6. In advance of the hearing, a bundle was submitted by the appellant containing, inter alia, the core documents in the appeal, including the appellant’s and respondent’s bundles before the First-tier Tribunal. In addition, a skeleton argument was filed on the appellant’s behalf dated 21 October 2025.
7. The hearing was attended by the appellant, his partner and the representatives for both parties as above.
8. Mr Malik raised a preliminary issue as to the extent of the consideration required in relation to Exception 2. He made the following points. The First-tier Tribunal judge had accepted that the unduly harsh test was met for the ‘go’ scenario in relation to XX but that the ‘stay’ scenario was not; the appellant appealed solely against the adverse findings and the respondent did not cross-appeal this favourable finding. In relation to Judge Neville’s reference to setting aside the First-tier Tribunal’s conclusions as they relate to whether removal would be unduly harsh on XX or YY at [24a] of the error of law decision, Mr Malik argued that a fair and proper interpretation was that the favourable finding had been preserved. Ms Blackburn expressed appreciation of the points raised but did not give a contrary view, stating that she had prepared the case on both scenarios.
9. I informed the parties that I considered the appellant should have benefit of the favourable and unchallenged findings and the hearing proceeded on that basis.
10. A second issue raised was that since the hearing before the First-tier Tribunal the appellant and XX have had a child, who I will refer to as ‘ZZ.‘ Ms Blackburn confirmed that the Secretary of State had given her consent for this new matter to be raised at the hearing.
11. The appellant and his partner were tendered for cross-examination. Both representatives made submissions and the conclusions below reflect those arguments and submissions where necessary. Mr Malik confirmed that he was relying on Exception 2, that the appellant was at risk of being re-trafficked and that his rights under Article 3 ECHR were at risk, on health grounds. In the event that the appellant did not succeed under Exception 2, Mr Malik contended that very compelling circumstances had been established.
12. At the end of the hearing, I announced that the appeal was allowed under Exception 2 and that my decision was reserved in relation to the re-trafficking and Article 3 medical issues.
Discussion
Exception 2
13. The best interests of the children affected by this decision is a primary consideration. It was not suggested that it would not be in their best interests for the appellant to remain in the United Kingdom.
14. Section 117C (5) of the Nationality, Immigration and Asylum Act 2002 is applicable here in that this provision, Exception 2, applies where a claimant has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of the claimant’s deportation on the partner or child would be unduly harsh.
15. The high threshold to meet the test for undue harshness was established in KO (Nigeria [2018] UKSC 53 at [23]:
…the expression “unduly harsh” seems clearly intended to introduce a higher hurdle than that of “reasonableness” under section 117B(6), taking account of the public interest in the deportation of foreign criminals. Further the word “unduly” implies an element of comparison. It assumes that there is a “due” level of “harshness”, that is a level which may be acceptable or justifiable in the relevant context. “Unduly” implies something going beyond that level.
16. As discussed above, the findings of the First-tier Tribunal that it would be unduly harsh to expect XX to accompany the appellant to China are preserved. I further find that it would be unduly harsh on XX, and by extension her children, for the appellant to be deported while they remain in the United Kingdom for all the reasons set out below.
17. Part of the First-tier Tribunal’s preserved findings include that the appellant has a genuine and subsisting relationship with XX and her son from a previous relationship, YY. Now the couple also have a son aged 4-months. Nothing emerged from cross-examination to endanger those preserved findings and indeed Ms Blackburn did not challenge the genuineness of any of the relationships.
18. The starting point in assessing the circumstances of XX is that she is an acknowledged victim of trafficking and that this happened within the United Kingdom. On 5 December 2013 the Competent Authority wrote to XX to inform her that it had been concluded that she had been trafficked.
19. I will not set out the details of the appalling treatment XX experienced as not only is it unnecessary but she has not been able to tell the appellant the full extent of what she suffered.
20. In addition, XX has been the victim of sustained violence in her previous relationship and has extensive visible scarring which she attributes to an incident which occurred in China. Indeed in the recent medical evidence, reference is made to the discomfort XX continues to experience from this scarring.
21. XX has been diagnosed with complex Post Traumatic Stress Disorder and major depression. The opinion of Professor Katona who provided a substantial psychiatric report on XX, which was adduced before the First-tier Tribunal, was that XX’s concerns as to the effect upon her mental health of the appellant’s deportation were justified and would result in a significant worsening of her conditions. For detailed reasons, Professor Katona concluded that XX’s deteriorating mental state would render her unable to work and support herself and her son and that she would be unable to secure basic needs for the family, without the assistance of the local authority. Professor Katona considered that XX, who had attempted to end her life before and had contemplated it subsequently, would be at significant risk of becoming suicidal. Additionally, his view was that XX would be susceptible to being re-trafficked within the United Kingdom and described this risk as ‘significant’.
22. I also need to take into consideration that the current position is that XX would be faced with caring alone for an infant as well as her older son in the absence of the appellant. There is no updated psychiatric report however there was no challenge to the content of Professor Katona’s report on XX by the respondent nor criticism raised in this regard. The criticism of the dated reports in Ms Blackburn submissions was focused on those relating to the appellant’s mental state. There is no indication from the extensive evidence before me to suggest that XX’s mental health has undergone any sustained improvement. On the contrary, a recent letter from her GP states that XX has been diagnosed with postnatal depression with associated anxiety and, even with the assistance of the health visiting team, is struggling to cope with a crying baby. The dose of her pre-existing treatment of Sertraline (which the medical evidence shows she continued taking during her pregnancy) has been increased and she has been referred to the perinatal mental health team. A copy of that referral was provided and shows that XX’s symptoms include moderate to severe depression/ low mood, anxiety/panic attacks and that she has a history of non-postnatal depression as well as domestic violence. On the Edinburgh Postnatal Depression Scale, XX scored 24 out of 30.
23. An independent social worker, Ms Harris provided a report on the family for the previous proceedings. Her conclusions are that the appellant’s son, YY, believed that the appellant was his biological father and that they shared a genuine parent-child relationship and attachment. Ms Harris noted that XX benefited from the appellant’s support, that she did not have the financial resources to maintain physical contact with the appellant in a different country and the adverse effect of the appellant’s absence on XX’s mental health would have a negative impact on YY. In addition, Ms Harris concluded that YY would experience a detrimental emotional impact at the forced separation from the appellant and that it was in his best interest for the appellant to remain within the family unit. As indicated above, the current position is more challenging than it was at the time the social work report was compiled, in that XX would, effectively, be a single parent of two sons, one of which is an infant.
24. There was no evidence to support Ms Blackburn suggestion that XX would not need to cope alone. In her testimony, XX accounted for the whereabouts of those who had assisted in the past and I accept that her evidence was honestly given. I consider that the submissions on behalf of the respondent minimised the vulnerability of XX and it is no answer to say, without more, that the state can step in with the provision of benefits and advice from charities.
25. Considering all the submissions and the evidence adduced, in the round, and given the unchallenged expert evidence, I am, on balance, satisfied, that the removal of the appellant from the United Kingdom, would not only result in harsh but unduly harsh consequences for XX and that, furthermore, the mental deterioration of their primary carer would also have an adverse impact on the wellbeing of the children which would also render the appellant’s removal unduly harsh on them.
Risk of re-trafficking
26. Following the appellant’s criminal conviction, he was referred to the National Referral Mechanism and on 21 February 2020, a positive reasonable grounds decision was made. That was followed up by a decision that there were conclusive grounds to believe that the appellant was a potential victim of human trafficking. It was as a result of further submissions made on that basis, that the supplementary decision letter was provided and which, among other issues, addressed the appellant’s claim to be a member of a particular social group as a victim of modern slavery.
27. Ms Blackburn’s submissions were brief on the issue of re-trafficking and therefore I focus on the supplementary decision letter. In that decision, the respondent accepted that the Refugee Convention was engaged. Reliance was placed on HC & RC (Trafficked women) China CG [2009] UKAIT 00027 to conclude that it was ‘unlikely’ that a person would be at risk of re-trafficking on return to China. Furthermore, it was not accepted that the appellant would be more vulnerable to exploitation on return.
28. The appellant relies on a report dating from September 2021 from Ms Montier, an acknowledged expert in relation to trafficking. Her view was that the appellant, without the support from XX and YY, NHS and charitable assistance in the United Kingdom along with lacking family or social welfare support in China would put him at greater risk of re-trafficking. A further expert Dr Anh, in a report dating from March 2022 says much the same and points to the appellant’s mental health issues, concluding that he was at ‘high risk’ of being trafficked. Neither Ms Montier nor Dr Anh’s expertise was challenged in the supplementary decision letter.
29. Having considered all the evidence adduced including the respondent’s CPIN China: Modern Slavery’ dated January 2021 and the USSD Trafficking in Persons report dated 15 June 2023, I conclude that there is not currently a real risk of the appellant facing re-trafficking in China for the following reasons.
30. Professor Katona assessed the appellant in 2021 and concluded that he ‘currently’ fulfilled the criteria for a diagnosis of PTSD. His opinion was that if deported, the appellant’s distress at being separated from XX and YY would result in a ‘significant worsening of his PTSD and associated depressive and anxiety symptoms.’
31. The appellant’s suicide risk, as of 2021, was described as ‘low’ owing to protective factors. Indeed, at 6.13 of the report, Professor Katona records the appellant as saying that he had experienced suicidal thoughts in the past while denying current suicidal thoughts, stating that he was diverting attention from the past to his family.
32. As at the date of the remaking hearing there is no current evidence that his mental health is as poor as it was in 2021. The appellant’s oral evidence was he had stopped taking medication for his mental health because he needed to conserve his energy to look after the children. When it was suggested in cross-examination that he would not be able to look after the children if he was mentally unwell, he replied, ‘at the moment, I think I am fine, the focus is on the baby.’ The appellant also confirmed that he was not having any counselling or therapy.
33. A further issue which emerged from cross-examination was summed up by Ms Blackburn during her submissions, in that she argued that the respondent maintained that the appellant had family and friends in China. The appellant’s oral evidence on this issue was scant, in that in response to a series of questions posed, he did little more than flatly deny any contact with his parents, his friends or XX’s friends, including people he had mentioned previously.
34. In his second witness statement, the appellant describes completing his primary, secondary and high school education, the latter as a boarder. He states that his parents borrowed funds to pay for him to study in the United Kingdom as he did not want to study in China any more. In his oral evidence, the appellant simply said that ‘had already explained that he lost contact with his parents in 2011.’ Yet in his witness statement there is no clear explanation of how he lost contact. At paragraph 19 the appellant says that his father was arrested, at paragraph 20 that his parents stopped sending money and at paragraph 21 he refers to the position of his parents, in that they ‘had been arrested.’ At several places, the appellant says that he does not know where his parents are.
35. At [64] of the First-tier Tribunal decision, the judge found that the appellant ‘failed to prove…that his father was arrested by the Almighty God Church.’ The judge also found the appellant’s evidence on what was said to have happened to his father to be ‘vague and non-specific’ and that he had not found the appellant to be credible regarding his claim to be a Christian. These findings were not challenged on appeal.
36. In the absence of any credible detail in his oral or written evidence as to how he had lost contact with everyone he knew in China, despite living there until the age of twenty and attending school until the age of seventeen, I find that that the appellant has exaggerated this aspect of his claim.
37. I note that it is not argued that the appellant is at risk in China from those that trafficked him within the United Kingdom. Indeed, it the appellant’s evidence that he has had no contact from any of those traffickers since 2019 when he was imprisoned. The appellant, who came to the United Kingdom with leave to enter as a student, has never been trafficked in China. Furthermore, I find that the appellant would be entitled to basic state support in China, applying HC and RC at headnote (3) where it was found the Chinese state had an obligation to house the homeless and not allow their citizens to starve. I can see no reason why a returned trafficked male would be in a worse position than a trafficked woman without family support and be permitted to fall into destitution. Indeed, I do not accept that the appellant would be without family support.
38. I have not considered the risk of re-trafficking in relation to XX as this is not her appeal and it has already been found by the First-tier Tribunal, that it would be unduly harsh for her to accompany the appellant to China. At [132] of that decision, the judge recorded that XX ‘would not go’ with the appellant to China and at [144] noted that her experiences in China and the United Kingdom had led to a grant of Humanitarian Protection and, therefore, met the elevated threshold of unduly harsh in the ‘go’ scenario.
Article 3 health
39. In relation to the appellant’s Article 3 claim, I have taken into consideration the medical evidence primarily in the form of the 2021 report from Professor Katona. I have carefully considered Mr Malik’s invitation to reject the submission that the passage of time affects clinical findings and I do so, recognising that these findings were justified at the time of the report based on the appellant’s then presentation.
40. Useful guidance as to the approach to Article 3 healthcare cases is provided in AM (Art 3; health cases) Zimbabwe [2022] UKUT 00131 (IAC).
1. In Article 3 health cases two questions in relation to the initial threshold test emerge from the recent authorities of AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 and Savran v Denmark (application no. 57467/15):
(1) Has the person (P) discharged the burden of establishing that he or she is “a seriously ill person”?
41. In considering the question replicated above, I have examined the medical evidence relating to the appellant, with a particular focus on the records which postdate Professor Katona’s report. I can find only minimal reference to the appellant’s mental health in the GP’s records which date from April 2021 until February 2024. Those scant references include a suggestion that his physical health problems may have a mental health component, yet when the doctor suggested, on 1 September 2021, that stress and anxiety may play a part in his symptoms, the appellant informed the doctor that everything is fine in his life and he does not feel anxious. I should add that the practice records that it was made aware of Professor Katona’s report in August 2021.
42. I have taken into consideration that Professor Katona also noted, at 5.1 of his report, that there was no reference to mental health symptoms in the appellant’s GP notes which were provided to him in advance of the psychiatric assessment. This is in contrast to the highly detailed account he provided during his assessment by Professor Katona.
43. As indicated in my findings at [29], the appellant’s own account during his oral evidence was that he was, without medication, therapy or counselling, able to look after a teenager and a baby and that his own assessment of his health was that he was ‘fine.’
44. As at the date of hearing, there was no current evidence to suggest that the appellant could be considered to be a seriously ill person. Furthermore, medical treatment for mental health disorders is available in China, according to UK Home Office, Country Information Note - China: Medical treatment and healthcare (July 2022), 23 August 2022 which was enclosed in the appellant’s bundle. While there are issues with the level of investment and take-up of treatment, the appellant is not receiving treatment in the United Kingdom and it has not been established what, if any, treatment he would require in China.
45. It follows that I do not accept, applying Paposhvili [2017] Imm. A.R. 867 that the appellant would, were he to be removed to China, be exposed to a serious, rapid and irreversible decline in his mental health resulting in intense suffering or to a significant reduction in life expectancy and this aspect of the appellant’s appeal is dismissed.
Notice of Decision
The appeal is allowed on human rights grounds (Article 8)

T Kamara

Judge of the Upper Tribunal
Immigration and Asylum Chamber

5 November 2025

NOTIFICATION OF APPEAL RIGHTS

1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal’s decision was sent:

2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).

3. Where the person making the application is in detention under the Immigration Acts, the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).

4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).

5. A “working day” means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.

6. The date when the decision is “sent’ is that appearing on the covering letter or covering email