UI-2025-000046
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The decision
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IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000046
First-tier Tribunal No: HU/57488/2023
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 12 August 2025
Before
UPPER TRIBUNAL JUDGE REEDS
Between
R M
(ANONYMITY ORDER CONTINUED)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms Jegarajah, Counsel instructed on behalf of the appellant
For the Respondent: Mr Diwnycz, Senior Presenting Officer on behalf of the respondent
Heard at IAC on 19 May 2025 and written submissions uploaded to the electronic file on 11 June 2025 and 8 July 2025
DECISION AND REASONS
1. The appellant appeals with permission against the decision of the First-tier Tribunal (hereinafter referred to as the “FtTJ”) who dismissed the appeal against the decision made to refuse the appellant entry clearance to the United Kingdom in a decision promulgated on 7 October 2024.
2. The FtTJ made an anonymity order, and no grounds were submitted during the hearing for such an order to be discharged. Anonymity is granted because the facts of the appeal involve a party who is a refugee and the evidence that is associated with the appellant’s claim and that her rights protected under Article 8 outweigh the right of the public to know her identity as a party to these proceedings, the latter being protected by Article 10 of the ECHR. The anonymity order is detailed below.
3. 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, or her family members likely to lead members of the public to identify the appellant or members of her family. Failure to comply with this order could amount to a contempt of court.
The background:
4. The background to the appeal is set out in the evidence and in the decision of the FtTJ. The appellant is a national of Sri Lanka born in 1948. In an application made on 22 March 2023 the appellant applied for entry clearance to the United Kingdom to join her sponsor, who is her daughter as an adult dependent relative (“ADR”). There is no dispute that the sponsor is a refugee from Sri Lanka who entered the UK on 7 April 2013.
5. The Appellant’s claim was summarised by the FtTJ between paragraphs 3-10. The appellant is a widow, and lives alone inxxx in Sri Lanka, her husband having died traumatically in the war in 2009. She has diabetes, high cholesterol, possible post-traumatic stress disorder (PTSD) or psychosis, depression and memory problems. She is on medication for her illnesses. She had a fall, and fractured her knee, which has affected her mobility. She was also attacked by a monkey in October 2022, while her carer was outside, and had to go to hospital for treatment for several days.
6. The family in the UK has supported the appellant financially, and over recent years the sponsor has paid for her to have a carer in Sri Lanka. The current carer is leaving soon. She hopes to get married, and also has her own mother to look after, as she recently had a heart attack. It is not easy to find another trustworthy carer, and a carer cannot meet the emotional needs of the appellant. The appellant is resisting the carer, and saying she wants to be looked after by her daughters in the UK.
7. The sponsor has not seen the appellant since she left Sri Lanka in 2007. She keeps in touch with her by telephone. The sponsor is worried that her mother is depressed, without family to care for her. The sponsor has had a traumatic history herself, of being ill-treated by the Sri Lankan authorities. She is a recognised refugee. Neither she nor many of her siblings can return to Sri Lanka.
8. The appellant’s case is that there is family life between her and the sponsor, and the other family members in the UK. That family life can only realistically be continued in the UK, if she is allowed to come here to join them where they will undertake her care. They have the ability to maintain and accommodate her in the UK without recourse to public funds. The appellant’s case is that she meets the requirements of the Rules for an adult dependent relative. Further, she is emotionally dependent on the sponsor, and this is at a level which engages family life under Article 8. It would not be proportionate to refuse entry clearance to the appellant. It would produce unduly harsh consequences for the appellant, the sponsor and the rest of the family in the UK
9. The Entry Clearance Officer ( “ECO”) refused the application in a decision made on the 21 May 2023. The case on behalf of the respondent was summarised by the FtTJ as follows: The respondent’s case is that the appellant does not meet the requirements of the Rules. She has not shown under ECDR 2.4 and 2.5 that, “as a result of age, illness or disability” she “requires long term personal care to perform everyday tasks”, and has not shown that she is “unable, even with the practical and financial help of the sponsor, to obtain the required level of care” in Sri Lanka, either because “it is not available and there is no person in that country who can reasonably provide it” or “it is not affordable”. The respondent also argues that the appellant has not shown she will be maintained and accommodated adequately in the UK without recourse to public funds, under ECDR 3.1 and 3.2. . The respondent claims that refusal of entry clearance would not produce unduly harsh consequences under GEN 3.1 and 3.2. 20. Looking at the position in Article 8 terms, there is said not to be a greater than normal dependency on the family members in the UK, under the terms of Kugathas [2003] EWCA Civ 31, so that family life in Article 8 terms is not engaged. The respondent argues that the sponsor can pay for medical treatment and can employ another carer in Sri Lanka. There have been two or three carers so far, and they have been able to meet the appellant’s needs sufficiently well. Even though the appellant might prefer to be cared for by her daughter(s), and they might want to care for her themselves, it would not be justified or proportionate to allow entry clearance.
10. The appellant appealed the decision which came before the FtTJ and in her decision the appeal was dismissed under Immigration Rules ( although the judge found on the evidence that the appellant could be maintained and accommodated without recourse to public funds) and also on the basis that the appellant had not established that GEN 3.1 or 3.2 applied or that her circumstances had met the hight threshold necessary. As regards Article 8 the FtTJ did not find that family life was engaged on the facts of the appeal or that there were greater than normal dependence between the appellant and the sponsor or in the alternative if family life was engaged, that the decision would be disproportionate under Article 8 of the ECHR.
11. The appellant sought permission to appeal that decision relying on three grounds. Permission was initially refused but on renewal was granted by Upper Tribunal Judge Rintoul on 14 March 2025 on all grounds.
12. The appeal was therefore listed before the Upper Tribunal. At the hearing Ms Jegarajah appeared on behalf of the appellant and Mr Diwnycz, Senior Presenting Officer appeared on behalf of the Secretary of State.
13. At the hearing, Ms Jegarajah of Counsel represented the appellant as previous Counsel who had drafted the grounds subsequently provided a witness statement in support of the grounds dated 15 May 2025, very close to the hearing date of 19 May which was subsequently amended. At the time of the error of law hearing neither Counsel instructed, nor the Senior Presenting Officer had a transcript of the proceedings. There also was no note of the evidence available. As the parties had objected to the hearing being conducted as a case management hearing (as set out in email correspondence of 15 May 2025), oral submissions were given by each advocate dealing with the issues without having heard the recording or any note being made available. The parties agreed that steps should be taken after the hearing to obtain the recording and for all parties and the tribunal to hear that recording without the need for a formal transcript unless either party made subsequent request. Directions were given for that take place and for written submissions to be served and filed post-hearing so that all issues could be addressed A further direction was issued on the 2 July 2025 and in response the written submissions were served and filed on behalf of the appellant and a further email from the Senior Presenting Officer on the 8 July 2025.
14. I heard oral submissions at the hearing from the morning until 2:40pm from the advocates and in addition there is a substantial bundle of documents consisting of 641 pages. The pagination is referred to as the relevant page of the CE File abbreviated to “Cef”. During her oral submissions Ms Jegarajah took the Tribunal through the medical reports and set out the appellant’s and sponsors background in the context of their experiences in Sri Lanka. That is all documented in the papers. As such it is not necessary to set that out in any detail.
Discussion:
15. I am grateful to the advocates for the helpful submissions made by each of them and how they have advanced their respective cases and their assistance given subsequently. The submissions are contained in the record of proceedings and in the written submissions provided after the hearing and I will not rehearse them here. I will refer to them as relevant in the analysis of the issues raised.
16. It is however necessary to set out that Ms Jegarajah did not seek to rely upon ground 2 and thus it will not be addressed in this decision.
17. Turning to ground 1, the challenge was advanced the basis of the decision was procedurally unfair and/or unreasonable as the FtTJ relied upon or raised matters which either had not been raised previously by the respondent or at the hearing by the FtTJ or the Presenting Officer. As a result, it is submitted that the appellant’s representatives did not have the opportunity to either address or counter those issues by providing submissions and also documentary evidence. It is further submitted that the matters identified in the grounds, both the original and renewed grounds, are material to the outcome as they are directly relevant to the assessment of the relevant Immigration Rules and also in the context of Article 8 of the ECHR. It is also right to add that Ms Jegarajah in her oral submissions relied upon the grounds but also sought to do so in the context of a “reasons based challenge” as she submitted had been crystallised in the grounds generally.
18. Dealing with a preliminary point, as set out above, the parties sought to hear the recording after the hearing. The tribunal was informed that steps had been taken to subsequently access the recording but that it had not been successful as only part of the recording was available. Further enquiries were made that only one part of recording was available. It is not known why that occurred. All parties including myself have had the opportunity to hear the recording or what was available and have provided their written responses. Neither party has sought to apply to reconvene the hearing and are content for the decision to be made on the available material and the written summaries.
19. I now turn to the general matters. Before assessing those submissions, and as a general starting point I bear in mind the following propositions, which are not controversial, that judicial caution and restraint is required when considering whether to set aside a decision of the First-tier Tribunal, and that their decisions should be respected unless it is clear that they have misdirected themselves in law. The task of the Upper Tribunal is to determine whether the First-tier Tribunal made a material error of law. I am not determining the appeal against the decision of the respondent. When deciding whether the FtTJ’s decision involved the making of a material error of law myself of the principles governing the approaches to such decisions which have been reviewed in a number of cases including Ullah v SSHD [2024] EWCA Civ 201 at paragraph 26, Yalcin v SSHD [2024] EWCA Civ 74 at paragraph 50, and Gadinala v SSHD [2024] EWCA Civ 1410 paragraphs 46 – 47 and Volpi and Anor v Volpi [2022]EWCA Civ 464.
20. More specifically the grounds have referred to the decision in Abdi and Ors v Entry Clearance Officer [2023] EWCA Civ 1455 ( see paragraphs 29-30) and that in general,
"What fairness requires is essentially an intuitive judgment which is dependent on the context of the decision; although it is possible to identify a number of general principles, they cannot be applied by rote identically in every situation. An overall judgment must be made in the light of all the circumstances of a particular case."
21. Putting adverse points to a witness before their evidence is rejected is generally in the interests of, and sometimes required by, fairness. It may also be "necessary for the integrity of the court process in enabling the tribunal to reach a sound conclusion." Abdi at [33], citing TUI UK Ltd v Griffiths [2023] UKSC 48 at [55].
22. An overall judgment must be made in the light of all the circumstances of a particular case. Whether there is procedural unfairness is fact-sensitive. The tribunal may identify an issue which has not been raised by the parties to the proceedings, but it will be unfair, ordinarily at least, for it to base its decision upon its view of the issue without giving the parties an opportunity to address it upon the matter. As an expert body, the tribunal is entitled to reject evidence notwithstanding that the evidence has not been challenged before it. Fairness may, however, require it to disclose its concerns about the evidence so as to afford the parties an opportunity to address them .
23. With those principles in mind and having had the opportunity to hear the oral submissions and consider the later written responses in the context the grounds and the evidence, I am satisfied that in central aspects ground 1 is made out. I give my reasons for reaching that view.
24. The first issue raised relates to the appellant’s circumstances in Sri Lanka. The FtTJ summarised the medical evidence in relation to the appellant consisting of medical reports from the treating clinicians in Sri Lanka and also the report of Dr Bashir, Consultant Psychiatrist, in the UK, who also had access to the medical reports from Sri Lanka and had reviewed them for the purposes of his report. The appellant has been diagnosed as suffering from diabetes, dyslipidaemia, and post-traumatic stress syndrome (report of Dr Paranaheera 27/2/23). The appellant had been referred to two Consultant Psychiatrists as her symptoms of mental health were worsening. The appellant had been receiving medical attention in 2022 where her cognitive functioning was assessed which was shown to be impaired-visual, attention and delay recall were affected, and she was thought to be at risk of developing dementia. Reference is made to the appellant suffering from an animal attack in October 2022 which necessitated hospital treatment and stay for 4 days -this occurred at a time when she had been alone. Dr Silvas’s opinion was that the appellant had suffered from severe depression with psychotic illness.
25. Dr Bashir reviewed the reports and undertook an assessment himself and at paragraph 4.1 set out:
“She confided in me that she had sought the help of a psychiatrist in x due to her struggles with memory issues. She often forgets where she has placed things and is aware of the problem but has difficulty coping with it. I also observed that she has trouble with numbers and recalling specific dates. In addition, she has poor eyesight and a fear of falling, which limits her activities and requires constant support.”
26. At paragraph 8.5 Dr Bashir’s opinion is that the appellant suffers from severe depression (on Geriatric Depression Scale she scored 28/30), made worse by her physical disability, loneliness and poor cognitive stimulation. Thought that the signs of cognitive decline were less likely to be caused by dementia rather than her depression.
27. At paragraph 8.6 he stated:
“Her age, depression and poor physical health, poor level of functioning makes her highly vulnerable. She needs to be living with her loved one for emotional psychological and physical care. As most of her close family live in the UK such emotional psychological care can only be possible if she is allowed to join her children in the UK. Communication through WhatsApp or Skype is not sufficient to fulfil her emotional aspects of care.”
28. At paragraph 22 the FtTJ accepted the medial evidence finding that the appellant was “quite notably depressed and that this appears to have complicated and multiple causes.” The FtTJ found that the overall the care she was receiving was good.
29. The assessment made under ECDR-2.4 and 2.5 was undertaken between paragraphs 23 – 29 of the decision. The FtTJ found that the appellant could not meet those paragraphs. Whilst the judge found that the appellant could be maintained and accommodated by the sponsor without recourse to public funds ( ECDR 3.1 and 3.2 see paragraph 30), the FtTJ found that the appellant could not meet paragraphs ECDR-2.4 and 2.5. It is that assessment which forms the substance of the grounds 1.
30. One of the issues identified was the lack of adequate care for the appellant in Sri Lanka in the sense that the care that she was presently receiving was not improving her mental health and conversely that the improvement in mental health would be as a result of care that could or would be given to her by her family members in the UK ( see paragraph 23). The FtTJ gave reasons at paragraph 24 that the appellant had not seen the sponsor since 2007 and that her significant decline appeared to have been triggered by her husband’s death in 2009. As Mr Diwnycz submits the FtTJ was not factually wrong about those 2 matters. However the FtTJ went on to find that in respect of the suggestion made that the appellant would be better once she came to live with us sponsor, that no apparent consideration had been given to the fact that the appellant had not lived in the UK before, would be leaving her home country and culture at an advanced age to move to a different place. Later on between paragraphs 27 – 28 the FtTJ found that it had not been established that the improvements in her mental condition could only be brought about by her living in the UK with the sponsor. At paragraphs 26 – 27 FtTJ referred to the care available and at paragraph 28 concluded, “the evidence before me does not, on a balance of probabilities, show that this would be the case, bearing in mind the uncertainties inherent in the situation, which the experts do not appear to be aware of, and which the family do not seem to have fully taken on board”.
31. The advocates addressed this factual finding in the context of the evidence. Mr Diwnycz submitted that the FtTJ had given her reasons at paragraph 24 and that they were open to her on the evidence. In oral submissions Ms Jegarajah had taken the tribunal through the evidence not only in relation to the appellant’s circumstances but also the sponsor and other family members. The history demonstrates that the appellant has 6 children; 2 sons and 4 daughters. Other than a daughter in France all live in the UK and she has 4 grandchildren. Her husband died in the Civil War in 2009, and her history is summarised at paragraph 5.3 that during the Civil War she was forced to leave her house in the village with the children when the army arrived, their belongings were taken and home destroyed. She had no relatives living nearby and all her siblings are passed away (4.2). They are further described by Dr Bashir (paragraph 8.1) that in her late 50s/ early 60s she had gone through traumatic events in Sri Lanka including destruction, displacement alongside the death of her husband and thereafter her children had left Sri Lanka.
32. I accept the submission made by Ms Jegarajah that in the reasoning at paragraph 24 and when addressing the issue of a change of care regime and the circumstances of improvement in her condition, the FtTJ did not factor into that reasoning the particular context against which her condition had occurred and/or had deteriorated. There are 2 points which arise from this. Firstly, the evidence suggests that in terms of her isolation from family members that it was not the position that they had chosen to leave but it was in the context of the Civil War in Sri Lanka and care to be given by family members should be seen in that light. Secondly the issue of the appellant’s past history of trauma was arguably related to the level of care she required and any improvement in her circumstances if cared for by her family members. It had not been expressly raised on the grounds, but in this context Ms Jegarajah had made the submission that the FtTJ had not taken into account the reasonableness of the type of care that she required (relying on the decision in BRITCITS v The Secretary of State for the Home Department [2017] EWCA Civ 368 (“Britcits))”. Whilst that was not expressly raised in the grounds, I am satisfied that it can be viewed in the context of the issue of suitability of care available in the context of the family which was the issue raised before the FtT and in the grounds.
33. Thus the focus should be whether the care which can provided can be “reasonably provided” and to the “required level” in their home country and must be reasonable from both the perspective of the provider and the perspective of the applicant and the standard of care must be what is required for that particular applicant although should be objectively assessed ( see decision in Britcits paragraph 59).
34. Therefore whilst the FtTJ was entitled to consider the significant decline was triggered by her husband’s death in 2009, the context of the circumstances and of events thereafter were of relevance. It is of note that the psychiatrist found that there had been a decline in the last 3 years.
35. I do not consider that the FtTJ was not alive to this as the FtTJ had referred to the “traumatic circumstances” at paragraph 22 when summarising the medical condition but that was also relevant to the analysis of the issue of suitability of care and how those care needs could be best or reasonably met.
36. Further at paragraph 24 and in the analysis the FtTJ took as a relevant fact that there had been no consideration that the appellant had lived in the UK before and that she would be leaving her home at an advanced age. It is factually correct that she had not lived in the UK before. However I accept the submission made in the grounds that this was not an issue that had been raised previously. The doctors who were treating her in Sri Lanka along with Dr Bashir in the UK were all aware that the appellant had not left Sri Lanka; they were aware of her factual background and history (see paragraphs 5.1 and 5.2;p 57Cef). Dr Bashir’s opinion was set out at paragraph 8.6: “ Her age, depression and poor physical health, poor level of functioning makes her highly vulnerable. She needs to be living with her loved one for emotional psychological and physical care. As most of her close family live in the UK such emotional psychological care can only be possible if she is allowed to join her children in the UK. Communication through WhatsApp or Skype is not sufficient to fulfil her emotional aspects of care.” Similarly the evidence from Sri Lanka referred to her ability to live with family members being beneficial to her outcome ( see reports at 3/9/23 ;p 64 Cef and p463 Cef). It had not been raised whether it was possible for the appellant’s mental health to ever improve in Sri Lanka. Further those who had provided reports both in Sri Lanka and the UK were plainly aware that she was not living with her family members in Sri Lanka.
37. Dealing with the care arrangements themselves they were assessed at paragraph 26 and 27 leading to the conclusion at paragraph 28. The finding made about the sponsor has been the issue that both advocates have spent considerable time addressing. There are a number of detailed medical reports available relating to the sponsor’s previous mental health. I have carefully considered those submissions assessment made by the FtTJ. The FtTJ appeared to have made a finding at paragraph 26 that the sponsor was still suffering from the effects of the trauma experienced in Lanka. What I have had to consider whether that was a finding made and if so what the context was in which that finding was made and whether it was an assessment made without giving notice to the appellant’s representatives and/or without an evidential foundation and the materiality of this finding or whether it was just a reflection of what the FtTJ had seen during the sponsor’s evidence.
38. Mr Diwnycz in the Rule 24 response submitted that no reading of paragraph 26 suggests that the FtTJ used the sponsor’s demeanour as anything other than an indicator of her vulnerable state. He submitted that it did not infer in any way that the sponsor would be incapable of dealing with the appellant nor did it reject the application to treat the sponsor as a vulnerable witness. Mr Diwnycz submits that it was clear that the FtTJ noted the sponsor’s emotional state and proceeded accordingly. In his later written submissions having heard a tape recording he submitted that the position had not changed and that the sponsor clearly could be heard upset while answering questions.
39. In this regard Ms Jegarajah does not disagree that Counsel raised as a primary issue that the sponsor was a vulnerable witness and that she should not be asked questions about events in Lanka but identified from the recording that the judge had said during the preliminary discussions that she did not have any psychiatric evidence to suggest the sponsor was still suffering from any recognised psychiatric illness and it was agreed that elements of vulnerability could be addressed by modifying questions and extra breaks. Ms Jegarajah’s written reply submits that the recording confirms the matters set out in ground one and that paragraph 26 demonstrates that the FtTJ should have raised with the parties whether the appellant was still suffering from the effects of trauma from the events in Sri Lanka and what relevance it was to the issues in the case. It is submitted that this is a material error of law as the finding made at paragraph 26 relating to the sponsor’s mental health was relevant to the findings made against the appellant at paragraph 27 where the FtTJ stated: “The Appellant and the sponsor have not seen each other for 17 years, when they were both in a different condition to how they are now, and I am not able to find on the evidence before me that an improvement in the Appellant’s mental health can only be brought about by her living with the sponsor” and therefore did make a finding on her mental health without raising the issue and without Counsel be able to provide evidence to clarify this position.
40. I have had the opportunity to hear the tape recording. An application was plainly made for the sponsor be treated as a vulnerable witness. It is expressly set out in the ASA at paragraph 34 by reference to the Joint President Guidance Note Number 2 of 2010 and the bundle contains comprehensively detailed reports relating to the sponsor which had been commissioned during her asylum claim which included psychiatric reports dated 2014 (p229) , 2015 and psychological therapists report from 2017. There was a scarring report from Dr Lord in 2014. I note from the electronic file for the FTT that there does not seem to have been any communications prior to the hearing as to any special measures or adjustments or steps suggested for the sponsor in order to give her best evidence nonetheless it was properly referred to at the outset of the hearing.
41. From the recording that I have heard the procedure adopted by the FtTJ was entirely consistent with good and best practice but also demonstrates in my view the evident care the FtTJ took during the appeal where she explained each stage of the proceedings to the sponsor and made it clear to the sponsor that if there were any difficulties a break could be taken during the evidence should she wish to and asked the Presenting Officer to clarify what questions would be asked. At paragraph 26 the FtTJ recorded that during the hearing the sponsor became tearful when talking about her mother. That accords with what can be heard on the tape recording and at one stage the FtTJ tried to put the sponsor at ease during her distress again in a caring and appropriate manner.
42. When addressing the submissions in my view paragraph 26 should be read alongside paragraph27 and paragraph 28. The fact that she was treated as a vulnerable witness was plainly as a result of the application made relying upon the reports in the bundle as regards the trauma that she had suffered and as set out at paragraph 26. The question is whether her demeanour at the hearing and as noted by the FtTJ was taken into account in reaching an assessment as to her current mental health and whether it was taken as relevant to the issue of her ability or inability to undertake the role of carer in the UK. I have found this a difficult question to answer. There is no dispute that there are comprehensive reports available. However they are of some age. They are summarised in the previous representations ( see p 224 Cef) and she was first assessed in 2014 and the later psychological report referred to therapy in 2017. I note that there was a reference made to the requirement for long term professional support by the psychologist in 2017 (p229Cef). However the sponsor’s witness statement attested to her present circumstances (see paragraph 13; page 36 Cef) and that she had not been receiving any psychiatric treatment in the UK for the last 3 years and that she considered that her mental health had improved. The sponsor was also recorded as working (see paragraph 27). Having considered the evidence read together I would agree with Ms Jegarajah’s reliance on the grounds that the sponsor’s current mental health had not been an issue in the appeal and that it can be inferred from paragraph 26 that it was the sponsor’s presentation at the hearing rather than on any medical basis which led to the finding that it was her demeanour which suggested that she was still suffering from the effects of the trauma. There is some support for this at paragraph 27 where the FtTJ refers to the lack of contact between each other for 17 years “when they were both in a different condition to how they are now” thus “different condition “is likely to be referable to this. Also as Counsel pointed out the sponsor was tearful when being asked questions about being unable to see or care for her mother. Her demeanour is thus equally consistent with being apart from her mother. This also feeds into the finding at paragraph 28 where reference is made to the “ uncertainties inherent in the situation, which the experts do not appear to be aware of, and which the family do not seem to have fully taken on board. Further, I do not find that the evidence is sufficiently cogent to show, on a balance of probabilities, that the only way the Appellant will be adequately cared for, in terms of her mental and physical health, would be if she came to the UK to live with the sponsor”. The “uncertainties” were not identified or further explained in that reasoning. It can only relate to the assessment made in the early paragraphs about sponsor’s mental health and the issue of care arrangements although that is by no means certain (although this is a separate point raised in the grounds). They may be points of relevance in deciding the overall appeal but those were the points that were not previously raised as issues.
43. I do not consider that a witnesses demeanour is always irrelevant as each case is fact specific and depends on the issues involved. There were a number of past reports as identified above and therefore it would not be out with the range of reasonable responses for a judge to consider her demeanour. However what is sufficiently unclear is whether the FtTJ did rely on the appellant’s demeanour as to her present mental health rather than considering this issue in the light of the other evidence available and in the context of any submissions made behalf of the appellant as an issue raised. The sponsor’s mental health had not been raised in this context by the respondent during the hearing nor had this been raised with the appellant’s advocate. In the circumstances had the point been raised it is likely that an adjournment would have been made for medical evidence to demonstrate her mental health and present capabilities as the grounds set out or at the very least submissions would have been made on the appellant’s behalf dealing with the issue.
44. The last point relates to care arrangements as relevant to the finding made paragraph 27 the grounds submit that it never be put to the witness JM by either the Presenting Officer or the FtTJ that she was unable to look after the appellant when the sponsor was working because she had 2 children ( see grounds at paragraph 12 (iii)). This may be one of the inherent uncertainties as referred to paragraph 28. As the issue of who would be caring for the appellant was of relevance to the issue under the Rules, if this was to be challenged it should have been done so during the evidence. Reference is made in the grounds to the lack of any questions in this regard to the witness by the Presenting Officer.
45. For those reasons I have reached the conclusion that there are errors of law in the decision which are material to the outcome. As submitted on behalf of the appellant had those issues being raised the likelihood is that they would have been addressed by evidence in particular psychiatric evidence in respect of the appellant but also evidence in relation to the sponsor and evidence relating to the care arrangements alongside any submissions. In those circumstances the errors affected the assessment of whether the relevant Rules were met on the evidence but also the assessment of whether GEN 3.1 and 3.2 was satisfied and were also relevant to the assessment of Article 8 generally. Ground 3 relates to the Article 8 assessment. As stated above that assessment also relies upon the factual assessment made in the earlier part relating to the Rules and cannot be separated. In the circumstances it is not necessary to address those grounds of challenge because the decision and the factual findings made were flawed and upon which the Article 8 assessment was conducted. For those reasons the grounds are made out and the decision is set aside. The
46. The grounds submit that the appeal should be remitted to the FtT and Ms Jegarajah also made that submission in the written response filed. In the circumstances I am satisfied that in view of the nature of the grounds, the submission made for a remittal and also that fact finding is necessary it should be remitted for a hearing before the FtT. It also preserves the second appeal rights.. Having considered the practice statement recited and the decision of the Court of Appeal in AEB v SSHD[2022] EWCA Civ 1512 and that of the Upper Tribunal in Begum (Remaking or remittal) Bangladesh [2023] UKUT 46, and in the light of the overriding objective I am satisfied that the appeal falls within paragraph 7.2 (a) and (b) and as it will be necessary to undertake an assessment of all the factual evidence, oral and documentary, make findings of fact and assess the appeal within the relevant legal framework when reaching a decision. In view of the matters raised it is likely that further evidence will be sought but it is not necessary to make any directions as it will be for the parties to deal with evidential matters before the FtT. There was no challenge made by the respondent to the finding made at paragraph 30 referring to maintenance and accommodation (ECDR 3.1 and 3.2 is met) and this is preserved.
Notice of Decision
The decision of the FtTJ involved the making of a material error of law and the decision to dismiss the appeal shall be set aside. It shall be remitted to the FtT for a hearing with no findings preserved save for paragraph 30 and a Tamil interpreter will be required for the hearing.
Upper Tribunal Judge Reeds
Upper Tribunal Judge Reeds
Dated: 24 July 2025
IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000046
First-tier Tribunal No: HU/57488/2023
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 12 August 2025
Before
UPPER TRIBUNAL JUDGE REEDS
Between
R M
(ANONYMITY ORDER CONTINUED)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms Jegarajah, Counsel instructed on behalf of the appellant
For the Respondent: Mr Diwnycz, Senior Presenting Officer on behalf of the respondent
Heard at IAC on 19 May 2025 and written submissions uploaded to the electronic file on 11 June 2025 and 8 July 2025
DECISION AND REASONS
1. The appellant appeals with permission against the decision of the First-tier Tribunal (hereinafter referred to as the “FtTJ”) who dismissed the appeal against the decision made to refuse the appellant entry clearance to the United Kingdom in a decision promulgated on 7 October 2024.
2. The FtTJ made an anonymity order, and no grounds were submitted during the hearing for such an order to be discharged. Anonymity is granted because the facts of the appeal involve a party who is a refugee and the evidence that is associated with the appellant’s claim and that her rights protected under Article 8 outweigh the right of the public to know her identity as a party to these proceedings, the latter being protected by Article 10 of the ECHR. The anonymity order is detailed below.
3. 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, or her family members likely to lead members of the public to identify the appellant or members of her family. Failure to comply with this order could amount to a contempt of court.
The background:
4. The background to the appeal is set out in the evidence and in the decision of the FtTJ. The appellant is a national of Sri Lanka born in 1948. In an application made on 22 March 2023 the appellant applied for entry clearance to the United Kingdom to join her sponsor, who is her daughter as an adult dependent relative (“ADR”). There is no dispute that the sponsor is a refugee from Sri Lanka who entered the UK on 7 April 2013.
5. The Appellant’s claim was summarised by the FtTJ between paragraphs 3-10. The appellant is a widow, and lives alone inxxx in Sri Lanka, her husband having died traumatically in the war in 2009. She has diabetes, high cholesterol, possible post-traumatic stress disorder (PTSD) or psychosis, depression and memory problems. She is on medication for her illnesses. She had a fall, and fractured her knee, which has affected her mobility. She was also attacked by a monkey in October 2022, while her carer was outside, and had to go to hospital for treatment for several days.
6. The family in the UK has supported the appellant financially, and over recent years the sponsor has paid for her to have a carer in Sri Lanka. The current carer is leaving soon. She hopes to get married, and also has her own mother to look after, as she recently had a heart attack. It is not easy to find another trustworthy carer, and a carer cannot meet the emotional needs of the appellant. The appellant is resisting the carer, and saying she wants to be looked after by her daughters in the UK.
7. The sponsor has not seen the appellant since she left Sri Lanka in 2007. She keeps in touch with her by telephone. The sponsor is worried that her mother is depressed, without family to care for her. The sponsor has had a traumatic history herself, of being ill-treated by the Sri Lankan authorities. She is a recognised refugee. Neither she nor many of her siblings can return to Sri Lanka.
8. The appellant’s case is that there is family life between her and the sponsor, and the other family members in the UK. That family life can only realistically be continued in the UK, if she is allowed to come here to join them where they will undertake her care. They have the ability to maintain and accommodate her in the UK without recourse to public funds. The appellant’s case is that she meets the requirements of the Rules for an adult dependent relative. Further, she is emotionally dependent on the sponsor, and this is at a level which engages family life under Article 8. It would not be proportionate to refuse entry clearance to the appellant. It would produce unduly harsh consequences for the appellant, the sponsor and the rest of the family in the UK
9. The Entry Clearance Officer ( “ECO”) refused the application in a decision made on the 21 May 2023. The case on behalf of the respondent was summarised by the FtTJ as follows: The respondent’s case is that the appellant does not meet the requirements of the Rules. She has not shown under ECDR 2.4 and 2.5 that, “as a result of age, illness or disability” she “requires long term personal care to perform everyday tasks”, and has not shown that she is “unable, even with the practical and financial help of the sponsor, to obtain the required level of care” in Sri Lanka, either because “it is not available and there is no person in that country who can reasonably provide it” or “it is not affordable”. The respondent also argues that the appellant has not shown she will be maintained and accommodated adequately in the UK without recourse to public funds, under ECDR 3.1 and 3.2. . The respondent claims that refusal of entry clearance would not produce unduly harsh consequences under GEN 3.1 and 3.2. 20. Looking at the position in Article 8 terms, there is said not to be a greater than normal dependency on the family members in the UK, under the terms of Kugathas [2003] EWCA Civ 31, so that family life in Article 8 terms is not engaged. The respondent argues that the sponsor can pay for medical treatment and can employ another carer in Sri Lanka. There have been two or three carers so far, and they have been able to meet the appellant’s needs sufficiently well. Even though the appellant might prefer to be cared for by her daughter(s), and they might want to care for her themselves, it would not be justified or proportionate to allow entry clearance.
10. The appellant appealed the decision which came before the FtTJ and in her decision the appeal was dismissed under Immigration Rules ( although the judge found on the evidence that the appellant could be maintained and accommodated without recourse to public funds) and also on the basis that the appellant had not established that GEN 3.1 or 3.2 applied or that her circumstances had met the hight threshold necessary. As regards Article 8 the FtTJ did not find that family life was engaged on the facts of the appeal or that there were greater than normal dependence between the appellant and the sponsor or in the alternative if family life was engaged, that the decision would be disproportionate under Article 8 of the ECHR.
11. The appellant sought permission to appeal that decision relying on three grounds. Permission was initially refused but on renewal was granted by Upper Tribunal Judge Rintoul on 14 March 2025 on all grounds.
12. The appeal was therefore listed before the Upper Tribunal. At the hearing Ms Jegarajah appeared on behalf of the appellant and Mr Diwnycz, Senior Presenting Officer appeared on behalf of the Secretary of State.
13. At the hearing, Ms Jegarajah of Counsel represented the appellant as previous Counsel who had drafted the grounds subsequently provided a witness statement in support of the grounds dated 15 May 2025, very close to the hearing date of 19 May which was subsequently amended. At the time of the error of law hearing neither Counsel instructed, nor the Senior Presenting Officer had a transcript of the proceedings. There also was no note of the evidence available. As the parties had objected to the hearing being conducted as a case management hearing (as set out in email correspondence of 15 May 2025), oral submissions were given by each advocate dealing with the issues without having heard the recording or any note being made available. The parties agreed that steps should be taken after the hearing to obtain the recording and for all parties and the tribunal to hear that recording without the need for a formal transcript unless either party made subsequent request. Directions were given for that take place and for written submissions to be served and filed post-hearing so that all issues could be addressed A further direction was issued on the 2 July 2025 and in response the written submissions were served and filed on behalf of the appellant and a further email from the Senior Presenting Officer on the 8 July 2025.
14. I heard oral submissions at the hearing from the morning until 2:40pm from the advocates and in addition there is a substantial bundle of documents consisting of 641 pages. The pagination is referred to as the relevant page of the CE File abbreviated to “Cef”. During her oral submissions Ms Jegarajah took the Tribunal through the medical reports and set out the appellant’s and sponsors background in the context of their experiences in Sri Lanka. That is all documented in the papers. As such it is not necessary to set that out in any detail.
Discussion:
15. I am grateful to the advocates for the helpful submissions made by each of them and how they have advanced their respective cases and their assistance given subsequently. The submissions are contained in the record of proceedings and in the written submissions provided after the hearing and I will not rehearse them here. I will refer to them as relevant in the analysis of the issues raised.
16. It is however necessary to set out that Ms Jegarajah did not seek to rely upon ground 2 and thus it will not be addressed in this decision.
17. Turning to ground 1, the challenge was advanced the basis of the decision was procedurally unfair and/or unreasonable as the FtTJ relied upon or raised matters which either had not been raised previously by the respondent or at the hearing by the FtTJ or the Presenting Officer. As a result, it is submitted that the appellant’s representatives did not have the opportunity to either address or counter those issues by providing submissions and also documentary evidence. It is further submitted that the matters identified in the grounds, both the original and renewed grounds, are material to the outcome as they are directly relevant to the assessment of the relevant Immigration Rules and also in the context of Article 8 of the ECHR. It is also right to add that Ms Jegarajah in her oral submissions relied upon the grounds but also sought to do so in the context of a “reasons based challenge” as she submitted had been crystallised in the grounds generally.
18. Dealing with a preliminary point, as set out above, the parties sought to hear the recording after the hearing. The tribunal was informed that steps had been taken to subsequently access the recording but that it had not been successful as only part of the recording was available. Further enquiries were made that only one part of recording was available. It is not known why that occurred. All parties including myself have had the opportunity to hear the recording or what was available and have provided their written responses. Neither party has sought to apply to reconvene the hearing and are content for the decision to be made on the available material and the written summaries.
19. I now turn to the general matters. Before assessing those submissions, and as a general starting point I bear in mind the following propositions, which are not controversial, that judicial caution and restraint is required when considering whether to set aside a decision of the First-tier Tribunal, and that their decisions should be respected unless it is clear that they have misdirected themselves in law. The task of the Upper Tribunal is to determine whether the First-tier Tribunal made a material error of law. I am not determining the appeal against the decision of the respondent. When deciding whether the FtTJ’s decision involved the making of a material error of law myself of the principles governing the approaches to such decisions which have been reviewed in a number of cases including Ullah v SSHD [2024] EWCA Civ 201 at paragraph 26, Yalcin v SSHD [2024] EWCA Civ 74 at paragraph 50, and Gadinala v SSHD [2024] EWCA Civ 1410 paragraphs 46 – 47 and Volpi and Anor v Volpi [2022]EWCA Civ 464.
20. More specifically the grounds have referred to the decision in Abdi and Ors v Entry Clearance Officer [2023] EWCA Civ 1455 ( see paragraphs 29-30) and that in general,
"What fairness requires is essentially an intuitive judgment which is dependent on the context of the decision; although it is possible to identify a number of general principles, they cannot be applied by rote identically in every situation. An overall judgment must be made in the light of all the circumstances of a particular case."
21. Putting adverse points to a witness before their evidence is rejected is generally in the interests of, and sometimes required by, fairness. It may also be "necessary for the integrity of the court process in enabling the tribunal to reach a sound conclusion." Abdi at [33], citing TUI UK Ltd v Griffiths [2023] UKSC 48 at [55].
22. An overall judgment must be made in the light of all the circumstances of a particular case. Whether there is procedural unfairness is fact-sensitive. The tribunal may identify an issue which has not been raised by the parties to the proceedings, but it will be unfair, ordinarily at least, for it to base its decision upon its view of the issue without giving the parties an opportunity to address it upon the matter. As an expert body, the tribunal is entitled to reject evidence notwithstanding that the evidence has not been challenged before it. Fairness may, however, require it to disclose its concerns about the evidence so as to afford the parties an opportunity to address them .
23. With those principles in mind and having had the opportunity to hear the oral submissions and consider the later written responses in the context the grounds and the evidence, I am satisfied that in central aspects ground 1 is made out. I give my reasons for reaching that view.
24. The first issue raised relates to the appellant’s circumstances in Sri Lanka. The FtTJ summarised the medical evidence in relation to the appellant consisting of medical reports from the treating clinicians in Sri Lanka and also the report of Dr Bashir, Consultant Psychiatrist, in the UK, who also had access to the medical reports from Sri Lanka and had reviewed them for the purposes of his report. The appellant has been diagnosed as suffering from diabetes, dyslipidaemia, and post-traumatic stress syndrome (report of Dr Paranaheera 27/2/23). The appellant had been referred to two Consultant Psychiatrists as her symptoms of mental health were worsening. The appellant had been receiving medical attention in 2022 where her cognitive functioning was assessed which was shown to be impaired-visual, attention and delay recall were affected, and she was thought to be at risk of developing dementia. Reference is made to the appellant suffering from an animal attack in October 2022 which necessitated hospital treatment and stay for 4 days -this occurred at a time when she had been alone. Dr Silvas’s opinion was that the appellant had suffered from severe depression with psychotic illness.
25. Dr Bashir reviewed the reports and undertook an assessment himself and at paragraph 4.1 set out:
“She confided in me that she had sought the help of a psychiatrist in x due to her struggles with memory issues. She often forgets where she has placed things and is aware of the problem but has difficulty coping with it. I also observed that she has trouble with numbers and recalling specific dates. In addition, she has poor eyesight and a fear of falling, which limits her activities and requires constant support.”
26. At paragraph 8.5 Dr Bashir’s opinion is that the appellant suffers from severe depression (on Geriatric Depression Scale she scored 28/30), made worse by her physical disability, loneliness and poor cognitive stimulation. Thought that the signs of cognitive decline were less likely to be caused by dementia rather than her depression.
27. At paragraph 8.6 he stated:
“Her age, depression and poor physical health, poor level of functioning makes her highly vulnerable. She needs to be living with her loved one for emotional psychological and physical care. As most of her close family live in the UK such emotional psychological care can only be possible if she is allowed to join her children in the UK. Communication through WhatsApp or Skype is not sufficient to fulfil her emotional aspects of care.”
28. At paragraph 22 the FtTJ accepted the medial evidence finding that the appellant was “quite notably depressed and that this appears to have complicated and multiple causes.” The FtTJ found that the overall the care she was receiving was good.
29. The assessment made under ECDR-2.4 and 2.5 was undertaken between paragraphs 23 – 29 of the decision. The FtTJ found that the appellant could not meet those paragraphs. Whilst the judge found that the appellant could be maintained and accommodated by the sponsor without recourse to public funds ( ECDR 3.1 and 3.2 see paragraph 30), the FtTJ found that the appellant could not meet paragraphs ECDR-2.4 and 2.5. It is that assessment which forms the substance of the grounds 1.
30. One of the issues identified was the lack of adequate care for the appellant in Sri Lanka in the sense that the care that she was presently receiving was not improving her mental health and conversely that the improvement in mental health would be as a result of care that could or would be given to her by her family members in the UK ( see paragraph 23). The FtTJ gave reasons at paragraph 24 that the appellant had not seen the sponsor since 2007 and that her significant decline appeared to have been triggered by her husband’s death in 2009. As Mr Diwnycz submits the FtTJ was not factually wrong about those 2 matters. However the FtTJ went on to find that in respect of the suggestion made that the appellant would be better once she came to live with us sponsor, that no apparent consideration had been given to the fact that the appellant had not lived in the UK before, would be leaving her home country and culture at an advanced age to move to a different place. Later on between paragraphs 27 – 28 the FtTJ found that it had not been established that the improvements in her mental condition could only be brought about by her living in the UK with the sponsor. At paragraphs 26 – 27 FtTJ referred to the care available and at paragraph 28 concluded, “the evidence before me does not, on a balance of probabilities, show that this would be the case, bearing in mind the uncertainties inherent in the situation, which the experts do not appear to be aware of, and which the family do not seem to have fully taken on board”.
31. The advocates addressed this factual finding in the context of the evidence. Mr Diwnycz submitted that the FtTJ had given her reasons at paragraph 24 and that they were open to her on the evidence. In oral submissions Ms Jegarajah had taken the tribunal through the evidence not only in relation to the appellant’s circumstances but also the sponsor and other family members. The history demonstrates that the appellant has 6 children; 2 sons and 4 daughters. Other than a daughter in France all live in the UK and she has 4 grandchildren. Her husband died in the Civil War in 2009, and her history is summarised at paragraph 5.3 that during the Civil War she was forced to leave her house in the village with the children when the army arrived, their belongings were taken and home destroyed. She had no relatives living nearby and all her siblings are passed away (4.2). They are further described by Dr Bashir (paragraph 8.1) that in her late 50s/ early 60s she had gone through traumatic events in Sri Lanka including destruction, displacement alongside the death of her husband and thereafter her children had left Sri Lanka.
32. I accept the submission made by Ms Jegarajah that in the reasoning at paragraph 24 and when addressing the issue of a change of care regime and the circumstances of improvement in her condition, the FtTJ did not factor into that reasoning the particular context against which her condition had occurred and/or had deteriorated. There are 2 points which arise from this. Firstly, the evidence suggests that in terms of her isolation from family members that it was not the position that they had chosen to leave but it was in the context of the Civil War in Sri Lanka and care to be given by family members should be seen in that light. Secondly the issue of the appellant’s past history of trauma was arguably related to the level of care she required and any improvement in her circumstances if cared for by her family members. It had not been expressly raised on the grounds, but in this context Ms Jegarajah had made the submission that the FtTJ had not taken into account the reasonableness of the type of care that she required (relying on the decision in BRITCITS v The Secretary of State for the Home Department [2017] EWCA Civ 368 (“Britcits))”. Whilst that was not expressly raised in the grounds, I am satisfied that it can be viewed in the context of the issue of suitability of care available in the context of the family which was the issue raised before the FtT and in the grounds.
33. Thus the focus should be whether the care which can provided can be “reasonably provided” and to the “required level” in their home country and must be reasonable from both the perspective of the provider and the perspective of the applicant and the standard of care must be what is required for that particular applicant although should be objectively assessed ( see decision in Britcits paragraph 59).
34. Therefore whilst the FtTJ was entitled to consider the significant decline was triggered by her husband’s death in 2009, the context of the circumstances and of events thereafter were of relevance. It is of note that the psychiatrist found that there had been a decline in the last 3 years.
35. I do not consider that the FtTJ was not alive to this as the FtTJ had referred to the “traumatic circumstances” at paragraph 22 when summarising the medical condition but that was also relevant to the analysis of the issue of suitability of care and how those care needs could be best or reasonably met.
36. Further at paragraph 24 and in the analysis the FtTJ took as a relevant fact that there had been no consideration that the appellant had lived in the UK before and that she would be leaving her home at an advanced age. It is factually correct that she had not lived in the UK before. However I accept the submission made in the grounds that this was not an issue that had been raised previously. The doctors who were treating her in Sri Lanka along with Dr Bashir in the UK were all aware that the appellant had not left Sri Lanka; they were aware of her factual background and history (see paragraphs 5.1 and 5.2;p 57Cef). Dr Bashir’s opinion was set out at paragraph 8.6: “ Her age, depression and poor physical health, poor level of functioning makes her highly vulnerable. She needs to be living with her loved one for emotional psychological and physical care. As most of her close family live in the UK such emotional psychological care can only be possible if she is allowed to join her children in the UK. Communication through WhatsApp or Skype is not sufficient to fulfil her emotional aspects of care.” Similarly the evidence from Sri Lanka referred to her ability to live with family members being beneficial to her outcome ( see reports at 3/9/23 ;p 64 Cef and p463 Cef). It had not been raised whether it was possible for the appellant’s mental health to ever improve in Sri Lanka. Further those who had provided reports both in Sri Lanka and the UK were plainly aware that she was not living with her family members in Sri Lanka.
37. Dealing with the care arrangements themselves they were assessed at paragraph 26 and 27 leading to the conclusion at paragraph 28. The finding made about the sponsor has been the issue that both advocates have spent considerable time addressing. There are a number of detailed medical reports available relating to the sponsor’s previous mental health. I have carefully considered those submissions assessment made by the FtTJ. The FtTJ appeared to have made a finding at paragraph 26 that the sponsor was still suffering from the effects of the trauma experienced in Lanka. What I have had to consider whether that was a finding made and if so what the context was in which that finding was made and whether it was an assessment made without giving notice to the appellant’s representatives and/or without an evidential foundation and the materiality of this finding or whether it was just a reflection of what the FtTJ had seen during the sponsor’s evidence.
38. Mr Diwnycz in the Rule 24 response submitted that no reading of paragraph 26 suggests that the FtTJ used the sponsor’s demeanour as anything other than an indicator of her vulnerable state. He submitted that it did not infer in any way that the sponsor would be incapable of dealing with the appellant nor did it reject the application to treat the sponsor as a vulnerable witness. Mr Diwnycz submits that it was clear that the FtTJ noted the sponsor’s emotional state and proceeded accordingly. In his later written submissions having heard a tape recording he submitted that the position had not changed and that the sponsor clearly could be heard upset while answering questions.
39. In this regard Ms Jegarajah does not disagree that Counsel raised as a primary issue that the sponsor was a vulnerable witness and that she should not be asked questions about events in Lanka but identified from the recording that the judge had said during the preliminary discussions that she did not have any psychiatric evidence to suggest the sponsor was still suffering from any recognised psychiatric illness and it was agreed that elements of vulnerability could be addressed by modifying questions and extra breaks. Ms Jegarajah’s written reply submits that the recording confirms the matters set out in ground one and that paragraph 26 demonstrates that the FtTJ should have raised with the parties whether the appellant was still suffering from the effects of trauma from the events in Sri Lanka and what relevance it was to the issues in the case. It is submitted that this is a material error of law as the finding made at paragraph 26 relating to the sponsor’s mental health was relevant to the findings made against the appellant at paragraph 27 where the FtTJ stated: “The Appellant and the sponsor have not seen each other for 17 years, when they were both in a different condition to how they are now, and I am not able to find on the evidence before me that an improvement in the Appellant’s mental health can only be brought about by her living with the sponsor” and therefore did make a finding on her mental health without raising the issue and without Counsel be able to provide evidence to clarify this position.
40. I have had the opportunity to hear the tape recording. An application was plainly made for the sponsor be treated as a vulnerable witness. It is expressly set out in the ASA at paragraph 34 by reference to the Joint President Guidance Note Number 2 of 2010 and the bundle contains comprehensively detailed reports relating to the sponsor which had been commissioned during her asylum claim which included psychiatric reports dated 2014 (p229) , 2015 and psychological therapists report from 2017. There was a scarring report from Dr Lord in 2014. I note from the electronic file for the FTT that there does not seem to have been any communications prior to the hearing as to any special measures or adjustments or steps suggested for the sponsor in order to give her best evidence nonetheless it was properly referred to at the outset of the hearing.
41. From the recording that I have heard the procedure adopted by the FtTJ was entirely consistent with good and best practice but also demonstrates in my view the evident care the FtTJ took during the appeal where she explained each stage of the proceedings to the sponsor and made it clear to the sponsor that if there were any difficulties a break could be taken during the evidence should she wish to and asked the Presenting Officer to clarify what questions would be asked. At paragraph 26 the FtTJ recorded that during the hearing the sponsor became tearful when talking about her mother. That accords with what can be heard on the tape recording and at one stage the FtTJ tried to put the sponsor at ease during her distress again in a caring and appropriate manner.
42. When addressing the submissions in my view paragraph 26 should be read alongside paragraph27 and paragraph 28. The fact that she was treated as a vulnerable witness was plainly as a result of the application made relying upon the reports in the bundle as regards the trauma that she had suffered and as set out at paragraph 26. The question is whether her demeanour at the hearing and as noted by the FtTJ was taken into account in reaching an assessment as to her current mental health and whether it was taken as relevant to the issue of her ability or inability to undertake the role of carer in the UK. I have found this a difficult question to answer. There is no dispute that there are comprehensive reports available. However they are of some age. They are summarised in the previous representations ( see p 224 Cef) and she was first assessed in 2014 and the later psychological report referred to therapy in 2017. I note that there was a reference made to the requirement for long term professional support by the psychologist in 2017 (p229Cef). However the sponsor’s witness statement attested to her present circumstances (see paragraph 13; page 36 Cef) and that she had not been receiving any psychiatric treatment in the UK for the last 3 years and that she considered that her mental health had improved. The sponsor was also recorded as working (see paragraph 27). Having considered the evidence read together I would agree with Ms Jegarajah’s reliance on the grounds that the sponsor’s current mental health had not been an issue in the appeal and that it can be inferred from paragraph 26 that it was the sponsor’s presentation at the hearing rather than on any medical basis which led to the finding that it was her demeanour which suggested that she was still suffering from the effects of the trauma. There is some support for this at paragraph 27 where the FtTJ refers to the lack of contact between each other for 17 years “when they were both in a different condition to how they are now” thus “different condition “is likely to be referable to this. Also as Counsel pointed out the sponsor was tearful when being asked questions about being unable to see or care for her mother. Her demeanour is thus equally consistent with being apart from her mother. This also feeds into the finding at paragraph 28 where reference is made to the “ uncertainties inherent in the situation, which the experts do not appear to be aware of, and which the family do not seem to have fully taken on board. Further, I do not find that the evidence is sufficiently cogent to show, on a balance of probabilities, that the only way the Appellant will be adequately cared for, in terms of her mental and physical health, would be if she came to the UK to live with the sponsor”. The “uncertainties” were not identified or further explained in that reasoning. It can only relate to the assessment made in the early paragraphs about sponsor’s mental health and the issue of care arrangements although that is by no means certain (although this is a separate point raised in the grounds). They may be points of relevance in deciding the overall appeal but those were the points that were not previously raised as issues.
43. I do not consider that a witnesses demeanour is always irrelevant as each case is fact specific and depends on the issues involved. There were a number of past reports as identified above and therefore it would not be out with the range of reasonable responses for a judge to consider her demeanour. However what is sufficiently unclear is whether the FtTJ did rely on the appellant’s demeanour as to her present mental health rather than considering this issue in the light of the other evidence available and in the context of any submissions made behalf of the appellant as an issue raised. The sponsor’s mental health had not been raised in this context by the respondent during the hearing nor had this been raised with the appellant’s advocate. In the circumstances had the point been raised it is likely that an adjournment would have been made for medical evidence to demonstrate her mental health and present capabilities as the grounds set out or at the very least submissions would have been made on the appellant’s behalf dealing with the issue.
44. The last point relates to care arrangements as relevant to the finding made paragraph 27 the grounds submit that it never be put to the witness JM by either the Presenting Officer or the FtTJ that she was unable to look after the appellant when the sponsor was working because she had 2 children ( see grounds at paragraph 12 (iii)). This may be one of the inherent uncertainties as referred to paragraph 28. As the issue of who would be caring for the appellant was of relevance to the issue under the Rules, if this was to be challenged it should have been done so during the evidence. Reference is made in the grounds to the lack of any questions in this regard to the witness by the Presenting Officer.
45. For those reasons I have reached the conclusion that there are errors of law in the decision which are material to the outcome. As submitted on behalf of the appellant had those issues being raised the likelihood is that they would have been addressed by evidence in particular psychiatric evidence in respect of the appellant but also evidence in relation to the sponsor and evidence relating to the care arrangements alongside any submissions. In those circumstances the errors affected the assessment of whether the relevant Rules were met on the evidence but also the assessment of whether GEN 3.1 and 3.2 was satisfied and were also relevant to the assessment of Article 8 generally. Ground 3 relates to the Article 8 assessment. As stated above that assessment also relies upon the factual assessment made in the earlier part relating to the Rules and cannot be separated. In the circumstances it is not necessary to address those grounds of challenge because the decision and the factual findings made were flawed and upon which the Article 8 assessment was conducted. For those reasons the grounds are made out and the decision is set aside. The
46. The grounds submit that the appeal should be remitted to the FtT and Ms Jegarajah also made that submission in the written response filed. In the circumstances I am satisfied that in view of the nature of the grounds, the submission made for a remittal and also that fact finding is necessary it should be remitted for a hearing before the FtT. It also preserves the second appeal rights.. Having considered the practice statement recited and the decision of the Court of Appeal in AEB v SSHD[2022] EWCA Civ 1512 and that of the Upper Tribunal in Begum (Remaking or remittal) Bangladesh [2023] UKUT 46, and in the light of the overriding objective I am satisfied that the appeal falls within paragraph 7.2 (a) and (b) and as it will be necessary to undertake an assessment of all the factual evidence, oral and documentary, make findings of fact and assess the appeal within the relevant legal framework when reaching a decision. In view of the matters raised it is likely that further evidence will be sought but it is not necessary to make any directions as it will be for the parties to deal with evidential matters before the FtT. There was no challenge made by the respondent to the finding made at paragraph 30 referring to maintenance and accommodation (ECDR 3.1 and 3.2 is met) and this is preserved.
Notice of Decision
The decision of the FtTJ involved the making of a material error of law and the decision to dismiss the appeal shall be set aside. It shall be remitted to the FtT for a hearing with no findings preserved save for paragraph 30 and a Tamil interpreter will be required for the hearing.
Upper Tribunal Judge Reeds
Upper Tribunal Judge Reeds
Dated: 24 July 2025