Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005611
First-tier Tribunal No: PA/54061/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 13th of March 2025

Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SK (INDIA)
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr E Tufan, Senior Presenting Officer
For the Respondent: Mr S Shah, Legal Representative, 786 Law Associates

Heard at Field House on 4 March 2025

ANONYMITY ORDER

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, SK and her family are granted anonymity.

No-one shall publish or reveal any information, including the name or address of the SK and her family, likely to lead members of the public to identify SK.

Failure to comply with this Order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. This is an appeal against a decision of the First-tier Tribunal. It raises a question of procedural fairness. Did the First-tier Tribunal err by failing to consider at all a central element of the Secretary of State’s case? If the answer is Yes, then a further issue arises: was the error material to the judicial assessment of SK’s human rights appeal?
2. First-tier Tribunal Judge Suffield-Thompson (‘the Judge’) allowed SK’s appeal on human rights (articles 3 and 8 ECHR) grounds by a decision sent to the parties on 7 October 2024.
3. SK withdrew her international protection appeal before the Judge.
Anonymity Order
4. The Judge confirmed in the title of her decision that an anonymity order was made but provided no reasons for making the order within the body of the decision.
5. The principle of open justice is fundamental to the common law. Its rationale is to protect the rights of the parties and to maintain public confidence in the administration of justice. The reporting of the identities of parties and witnesses is an important element of open justice. Even in cases involving exploration of intimate details of an appellant’s private and family life, including serious medical conditions, the full force of the open justice principle should not readily be denigrated from: Zeromska-Smith v. United Lincolnshire Hospitals NHS Trust [2019] EWHC 552 (QB), [2019] Med LR 250. Revelation of the identity of the parties is an important part of open justice: re: Guardian News and Media Limited [2010] UKSC 1, [2010] 2 AC 697.
6. This decision raises wide-ranging issues concerning SK’s health and makes references to her minor children. I observe that stigma is a core element of SK’s case. For those reasons I consider that SK’s rights, and those of her family, protected under article 8 presently outweigh the public’s right to know that SK is a party to these proceedings as protected by article 10 ECHR.
7. I confirm the anonymity order above.
Relevant Facts
8. At the error of law stage, it is sufficient to address the background to this appeal in brief terms.
9. SK is an Indian national. She entered the United Kingdom lawfully in 2010 and subsequently overstayed. Her partner and their two minor children reside in this country, but none enjoy status. SK and her partner contend that their children are stateless.
10. Her partner, an Indian national, asserts that he left his home country in 2003 and having travelled through various countries, including Russia, arrived in the United Kingdom in 2005. Beyond his assertion, no supporting evidence has been filed as to his presence in this country prior to his meeting SK, on their account, in 2019. He claimed asylum in February 2020. The Secretary of State concluded that the asylum claim was withdrawn consequent to non-compliance in November 2020.
11. SK has been diagnosed with HIV+. She receives regular treatment in this country. She is concerned that she will not receive required medication if she returns to India. Her concerns are exacerbated by her not having the support of her family as they have disowned her due to her medical condition. She states that her parents do not accept her relationship with her partner.
12. SK previously made human rights representations, including representations served in June 2015 that were accompanied by an expert report from Dr Roger Jeffery, Professor of Sociology at the University of Edinburgh, dated May 2015. The resolution of these representations is presently unknown to this Tribunal. She claimed asylum along with her two children in May 2019.
13. A letter from SK’s hospital, dated 28 March 2024, confirms that at that time her medical condition was well-controlled by her antiretroviral regime.
14. The Secretary of State refused the asylum application by a decision dated 1 February 2024. She accepted that SK is HIV+ but concluded that SK could relocate within India and secure both medical treatment and antiretroviral medication. Additionally, the Secretary of State accepted that SK’s family have refused to have contact with her since the HIV+ diagnosis.
First-tier Tribunal Decision
15. The appeal came before the Judge sitting in the Virtual Region on 7 October 2024. SK attended and was represented, as was the Secretary of State. SK’s partner and children are dependent on her appeal.
16. SK gave evidence. The Judge found her to be an open and honest witness who did not seek to exaggerate her claim or to mislead the Tribunal, at [11] of the decision. Though not recorded in the Judge’s decision, Mr Shah confirmed that SK’s partner adopted his witness statement at the hearing.
17. The appeal was allowed on article 3 grounds as well as on article 8 grounds both under and outside the Immigration Rules.
Article 3 ECHR
18. The Judge concluded that if SK does not obtain the treatment and medication that she needs this could lead to suffering and to the end of her life, at [41]. She noted a shortage of retroviral drugs in India, at [43], and that SK has no family support or friends, at [46]. Applying the approach identified by the Supreme Court in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 7, [2021] AC 633, as considered by the Upper Tribunal in AM (Art 3; health cases) Zimbabwe [2022] UKUT 00131, [2022] Imm AR 1021, the Secretary of State was found not to have dispelled the serious doubts raised by SK to the required standard. SK’s appeal was allowed on human rights (article 3) grounds.
Article 8 ECHR under the Immigration Rules
19. The Judge considered the report from Dr Jeffery, which was some nine-and-half-years old at the date of hearing. She accepted him to be an expert for the purposes of the appeal. The Judge found that SK would have no family support on return to her home area and would be actively rejected by her family which would significantly impact of her ability to cope financially and socially on return, at [23].
20. The Judge considered various articles placed before her which she considered gave a very clear picture of the stigma and ignorance associated with HIV in India and how it will affect SK on her return, at [25]-[31].
21. Consequently, the Judge found that SK met the private life requirements under the Immigration Rules, though she did not identify the precise Rule she considered SK under. I understand it to be paragraph 276ADE(1)(vi), SK’s application having been made before 20 June 2022, and she has lived continuously in the United Kingdom for less than 20 years. The Judge concluded there would be very significant obstacles to her integration into India if required to leave this country, at [33].
Article 8 outside of the Immigration Rules
22. SK’s article 8 rights were found to be engaged. Contrary to her finding at [33], the Judge found that SK did not meet the relevant Rules, at [53]. She considered SK’s children, and that they have ‘no’ grandparents in India who will accept them or offer them support. It was noted that the older child had not long commenced school. The Judge found that as SK has a serious illness which requires medication over her lifetime, which she may not be able to either access or afford in India, it was imperative that the children remain with both of their parents in the United Kingdom so that if their mother becomes unwell their father can look after them, at [57].
23. The Judge found that it would be unduly harsh for SK to be removed to India, and it would be a breach of her article 8 family life rights to separate her from her family and return her to India alone. Further, it would be a breach of her article 8 private life rights to deny her access to medical treatment in the United Kingdom, at [59].
24. Having considered the public interest, the Judge concluded that the balance came down firmly in favour of SK and her family’s article 8 rights, at [62].
Grounds of Appeal
25. Three grounds of appeal are advanced by the Secretary of State:
i. The First-tier Tribunal entirely failed to engage with the contention that SK’s partner and children were able to accompany her to India, with the partner enjoying no lawful status in this country.
ii. The First-tier Tribunal failed to lawfully engage with the guidance of the Upper Tribunal in AM, in particular as to the temporary withdrawal of treatment leading to a rapid and irreversible decline in SK’s health. The Secretary of State contends that there was no evidence of any description to support any claim of rapid and irreversible decline.
iii. The First-tier Tribunal erred in her consideration as to whether it was reasonable for the family unit to return to India in circumstances where neither of the children are “qualified” for the purpose of Part V of the Nationality, Immigration and Asylum Act 2002.
26. Upper Tribunal Judge Neville granted permission on all grounds of appeal, observing that it is arguable that the First-tier Tribunal did not engage with the Secretary of State’s case that return to India would be practicable if the family returned as a unit. Such an error was identified as being relevant to the article 3 assessment, and to the assessment of article 8 both under and outside the Rules.
Discussion
27. The common law imposes minimum standards of procedural fairness. These are objective, hard-edged standards. As observed by Lord Steyn in R v Secretary of State for the Home Department, ex parte Pierson [1998] AC 539, 591F, the rule of law enforces minimum standards of fairness, both substantive and procedural.
28. A fair hearing is a pillar of natural justice and is relied upon by the Secretary of State who contends that the First-tier Tribunal failed to abide by its duty to act fairly when failing to consider a core foundation of her case.
29. What fairness requires will depend on the circumstances. As these can vary greatly from one case to another, it is impossible to lay down rules of universal application: R (Osborn) v Parole Board [2013] UKSC 61, [2014] AC 1115, per Lord Reed at [80].
30. I observe the Secretary of State’s review, dated 17 June 2024:
“39. For these reasons, and those already articulated in the [reasons for refusal letter], it remains [the Secretary of State’s] position that it is in the best interests of the children to return with their parents to India and remain in their care as they have done since birth.
...
47. It is also submitted that her partner and children could return with her to India providing emotional support ...”
31. The Secretary of State clearly identified the ability of the family to return to India as a unit as an outstanding issue to be addressed by the First-tier Tribunal: Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC), [2023] Imm AR 1416.
32. A witness statement signed by SK’s partner was filed with the First-tier Tribunal. It runs to sixteen paragraphs. Strikingly, it provides no information as to his personal history in India, not even where he was born and where he grew up. The statement is silent as to his educational qualifications and whether he was employed before leaving India when aged approximately twenty-six. No detail is provided as to whether he used an agent to travel to the United Kingdom and how he supported himself in between leaving India, on his evidence in 2003, and arriving in the United Kingdom, again on his evidence, in 2005. No evidence is provided as to how he has financially supported himself in the United Kingdom since 2005, or how his family are presently financially supported. The partner is entirely silent as to his employment history since he turned sixteen in 1995. His reasons for not returning to India are, in essence, that “all” his friends are in the United Kingdom, and that having been in the United Kingdom for all but five years of his adult life “it will be very difficult” to live outside this country.
33. The Judge does not record any evidence presented by SK as to why her partner and their children cannot travel to India with her. It is a clear error of law by the Judge not to consider an outstanding issue relied upon by the Secretary of State that is central to her case.
34. I am mindful that not all errors of law are fatal: Rahaman v Secretary of State for the Home Department [2022] EWCA Civ 310, [2022] Imm AR 982, at [25]. The question is whether the breach identified above is a material one and I observe the statement of Woolf LJ in Lloyd v McMahon [1987] AC 625 that to view breaches of procedural fairness as always fatal would be an unduly technical approach.
35. In this matter, I have concluded that the only proper reading of the Judge’s decision is that her reasoning was entirely founded upon SK returning to India on her own, with no express or even implicit consideration as to the possibility of her partner accompanying her. Such failure is clearly identifiable at [58] where it is implicit that the Judge commences her assessment on the basis that the partner is not required to leave the United Kingdom:
“58. [SK’s] partner has been in the UK since 2005, and he is an Indian national. He is the primary carer for [SK] and plays a crucial role in the lives of the children when [SK] is unwell. I find it would be a breach of his article 8 family life rights to split his family.”
36. Having failed to lawfully consider the position of the partner in this country – he enjoys no status and has made no separate human rights application – the Judge failed to place in her assessment at [57] the ability of the partner to secure employment in India that may then enable the obtaining of medication required by SK and suitable accommodation for the family:
“57. ... I find it would be a breach of their Article 8 rights for their mother to be removed from the UK and it is not in their best interests to be removed to India as a family unit if their mother is unable to receive the medicines that she needs to remain well.”
37. This failure is amplified by the Judge expressly considering the ability of SK being able to work on return, at [32], and concluding that stigma would prevent her from securing employment that could permit her to support herself and her family. The Judge was also required to consider the ability of the partner to find employment and provide for his family. Without undertaking this assessment, the Judge could not lawfully conclude that SK could not afford her medication on return, at [32].
38. I conclude that the failure to consider a core element of the Secretary of State’s case is a material error of law which infects all elements of reasoning in the challenged decision. The only proper course is to set aside the decision of the First-tier Tribunal in its entirety.
39. Consequent to my conclusion in respect of ground 1, there is no requirement to consider grounds 2 and 3.

Resumed Hearing
40. I have regard to paragraph 7.2 of the Senior President’s Practice Statement for the Immigration and Asylum Chambers and the guidance in AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512, [2023] 4 WLR 12, and Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC), [2023] Imm AR 558.
41. I note that the decision of the First-tier Tribunal has been set aside on the ground of procedural unfairness. I further observe the requirement for extensive fact-finding. In the circumstances, the most appropriate course is to remit this matter to the First-tier Tribunal with no preserved findings of fact.
Directions
42. Mr Shah explained that consequent to her present health SK would prefer to attend the hearing in the First-tier Tribunal remotely. Mr Tufan raised no objection. This matter was previously listed by the First-tier Tribunal in the Virtual Region, and I see no good reason why it should not return to the Virtual Region, though ultimately this is a decision for the First-tier Tribunal.
43. Additionally, Mr Shah indicated that SK may wish to secure up-to-date evidence as to her health and her ability to secure medication in India. Updated witness statements may also be filed.
44. In the circumstances, I direct the following to aid the First-tier Tribunal:
i. The matter is to be listed on the first available date on or after three months from the sending of this decision.
Notice of Decision
45. The decision of the First-tier Tribunal sent to the parties on 7 October 2024 is set aside in its entirety.
46. The matter is remitted to the First-tier Tribunal to be listed before any First-tier Tribunal Judge save for Judge Suffield-Thompson.
47. An anonymity order is confirmed.

D O’Callaghan
Judge of the Upper Tribunal
Immigration and Asylum Chamber
4 March 2025