UI-2025-000209

• Status of case: Unreported
• Hearing date: 13 Oct 2025
• Promulgation date: 10 Nov 2025
• Publication date: 25 Nov 2025
• Last updated on: 25 Nov 2025

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000209

First-tier Tribunal No: HU/02005/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 10 November 2025

UPPER TRIBUNAL JUDGE KEITH
UPPER TRIBUNAL JUDGE GREY

Between

‘GB’ (JAMAICA)
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Chirico KC, Counsel instructed by Bindmans LLP
For the Respondent: Ms S McKenzie, Senior Home Office Presenting Officer

Heard at Royal Courts of Justice on 13th 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. The reason is that the appellant was the victim of rape as a minor and therefore is entitled to anonymity by virtue of having been the victim of a sexual offence.


DECISION AND REASONS
Background
1. This is a decision of the Tribunal to which both judges have contributed. It is to remake the appellant’s appeal, following our decision dated 16th July 2025, in which we concluded that a First-tier Tribunal Judge had erred in law. That decision is contained in the Annex to these reasons. We identified only very narrow errors of law. The remainder of the Judge’s detailed and clearly structured findings were unaffected by our decision. Two Articles of the European Convention on Human Rights were engaged: Articles 3 and 8.
The Article 3 issue – rapidity of decline
2. In relation to Article 3 ECHR, the parties accepted the expertise of two experts: a consultant clinical psychologist, Dr Turton; and Dr de Noronha, a researcher at Associate Professor level with a specialism in the conditions in Jamaica for those being removed to that country. The contents of their reports have also not been challenged. The respondent now accepts that the appellant has discharged the burden of establishing that he is a “seriously ill person” and that he has adduced evidence capable of demonstrating that substantial grounds have been shown for believing that he would face a real risk, on account of the lack of access to appropriate treatment in Jamaica, of being exposed to a serious and irreversible decline in his health, resulting in intense suffering. We take these concepts from the headnotes of AM (Art 3; health cases) Zimbabwe [2022] UKUT 00131 (IAC). The one area of factual dispute was how rapid that decline would be. In our previous decision, we concluded that the Judge had not adequately explained why she concluded that a decline would not be rapid.
The Article 8 issue – remaking the proportionality assessment
3. In relation to Article 8, the parties agreed all of the relevant facts. We need to answer again the question of whether the appellant’s deportation amounts to a disproportionate interference with his Article 8 rights, in light of the tests set down by parliament in Sections 117A to C of the Nationality, Immigration and Asylum Acts 2002 (the “2002 Act”). We need to do so because of our conclusion that the Judge had misdirected herself on the law, in how Section 117C(4) of the 2002 Act applied. The Judge had concluded it was sufficient that the appellant was not in the United Kingdom unlawfully, to meet the test of being “lawfully resident” for the purposes of Section 117C(4)(a) of the 2002 Act. This is not correct, as to be “lawfully resident” requires a positive right to reside in the UK. It does not follow that a person who is not “in the United Kingdom unlawfully” for the purposes of Section 117B(4) of the Nationality, Immigration and Asylum Act 2002 applying Akinyemi v SSHD [2017] EWCA Civ 236 (‘Akinyemi No. 1’), will necessarily be “lawfully resident” for the purposes of Section 117C(4)(a). Although the statutory ‘short-cut’ provided by Section 117C(4) was not available to the appellant in view of the length of his sentence of imprisonment, the Judge approached the proportionality assessment and assessment of “very compelling circumstances” on the basis that the appellant was able to satisfy the provisions of Section 117C(4). We determined that the Judge’s misdirection in respect of Section 117C(4)(a) was a material error because the Judge had repeatedly referred to the appellant’s lawful residence in the analysis of “very compelling circumstances”. It is therefore necessary to conduct afresh a full proportionality assessment to consider whether removal would breach the appellant’s rights under Article 8 as a “foreign criminal”. Although the appellant is unable to meet the requirements of Section 117C(4)(a) of the 2002 Act, the fact that he has been present in the UK for his entire life, was irremovable as a child, and was entitled to be registered as a British citizen, remains relevant in the proportionality assessment when considering “very compelling circumstances” for the purposes of Section 117C(6).
4. The context is that the appellant is a Jamaican national. He was born in, and has never left the UK, let alone been to Jamaica. He was not in the UK “unlawfully” for the purposes of Section 117B(4) (see Akinyemi No. 1). He was irremovable as a child, and had been entitled to acquire British nationality, had the Local Authority in whose care he was, made such an application. It did not. However, as a Jamaican national, he has never been “lawfully resident” in the UK. The question is whether there are “very compelling circumstances” in the appellant’s case, taking into account the very serious nature of his criminal offences.
The hearing before us
5. We had previously held a case management hearing on 1st October 2025 to ensure that the case was ready to proceed. The appellant had applied for this hearing to be adjourned, because the appellant has recently pleaded guilty to further offences since our last decision. He had pleaded guilty to importation of a controlled drug (class B – cannabis) and possession of criminal proceeds, and intended to plead guilty to possession of an offensive weapon. He was remanded in custody and was awaiting sentencing. He has also made an asylum claim, claiming to fear persecution in Jamaica because he is bisexual, and was awaiting an interview. He has also received a ‘positive’ Reasonable Grounds decision following his referral into the National Referral Mechanism, as a potential victim of modern slavery.
6. We refused the adjournment application, on the basis that it was premature. The respondent had not indicated whether she will consent to the asylum claim as a new matter and needed the opportunity to do so. She may decide not to consent, in which case there was no reason to delay. The respondent has since confirmed that she did not consent to this Tribunal considering a protection claim. The fact of further convictions was not necessarily a justification for delaying the hearing. Whether the respondent sought to pursue removal at an earlier stage, even if the appellant received a custodial sentence, was a matter for her. The NRM process was also not a reason for delaying the remaking. Separate issues might arise in future as to whether, if there were a Conclusive Grounds decision in the appellant’s favour, any grant of temporary permission for ‘VTS’ would be granted, or whether such decision would be considered on the basis that the appellant is a ‘threat to public order’ as referred to in the respondent’s case worker guidance: ‘Temporary Permission to Stay considerations for Victims of Human Trafficking or Slavery’. That was a matter for the respondent.
7. At the case management hearing, Mr Chirico indicated that the appellant would not be tendered to give witness evidence, because of his vulnerability and mental ill-health, in the context that we had preserved the Judge’s findings, and there were no disputes of fact as they existed at the error of law hearing, save as to the question of the rapidity of decline in the appellant’s mental health. He would attend instead only to provide instructions. No updated expert evidence would be relied on in connection with the NRM process, in light of our refusal to adjourn the hearing. As it transpired, the appellant was unwilling to leave his prison cell on the morning of this hearing, but Mr Chirico was instructed that the appellant was content for the hearing to proceed in his absence. Mr Chirico indicated that a factor in the appellant’s non-attendance was his fear of being transferred to another prison at the end of the hearing rather then being returned to HMP Brixton, which he had experienced after attending other court hearings.
8. In these circumstances, we proceeded on the basis of the representatives’ submissions alone.
Corrections to the error of law decision
9. Before addressing us on the disputed issues, Mr Chirico corrected two factual errors in our error of law decision. These were not material to our conclusion that the Judge had erred in law, but might be relevant to our remaking. The first was to correct our reference at §6 that the appellant had been raped when he was aged 9. He was in fact aged 11. The second was our reference §7 to the appellant having a ‘violence reduction mentor’ while in prison. In fact, he was a mentor.
The preserved findings of the FtT Judge
10. We repeat the preserved findings, before setting out the parties’ cases. The Judge found as follows:
“3. The circumstances which I find collectively to be very compelling circumstances sufficient to outweigh the public interest in his deportation, are as follows:
• the Appellant was born in the UK on 12th September 2002, to a Jamaican mother; within 2 weeks of his birth he was placed by his mother in the care of [JS] and since then has had very little contact with his mother, and regards her as a mother-figure, who has been a consistent figure in his life,
• his father died/was killed in Jamica when he was very young; he does not know the identity of his father, and has no relationship with the paternal side of his family (nor maternal), who have had no part in his upbringing,
• he has never left the UK, and lived here continuously since birth………,
• he has not been to Jamaica, has no family known to him who live there, is unaware of Jamaican culture or society, has no job, shelter, practical or emotional support there,
• JS brought him up, a residence and parental order made by the family court, and he lived with her until aged 15 or so, in South London; though a loving and consistent figure, JS had dependency issues (drugs and alcohol), and there was violence in the home (towards her, towards him) and chaotic,
• he was cared for under the eye of the Local Authority….., his corporate parent, as a "looked after” child, between September 2012 and 2019 he had a right to seek naturalisation, but being a child, did not do so; there are no reasons why this would not have been granted had [the Local Authority] done so; he has always regarded himself as British, and was surprised to find that he was not,
• he experienced sexual abuse aged 9 [corrected to be 11], over which no action was taken; PTSD has been attributed in part to this experience; he was diagnosed at an early age with ADHD and PTSD, with frequent references to CAMHS; the former was addressed unsuccessfully with medication,
• he was educated in the UK and expelled from various schools for very challenging behaviour; his placement with JS broke down when he was 15, so he was placed in foster care, which broke down, he became homeless, then lived in semi-independent accommodation,
• absent of immigration status, he has not worked, nor otherwise financially supported himself,
• he was tried for murder in 2020 and acquitted, for part of that time on remand in an adult prison; he pleaded guilty to possession of a bladed instrument in March 2021, and was sentenced to 4 months YOI,
• the index offences committed on 23rd October 2021 was (sic) a street robbery, involving 6 masked men, including the Appellant, who felled a lone man from behind in the street at night, then kicked him on the ground, threatened to chop his legs off with a machete, and cut him on the leg to reinforce the threat; he gave up some cash and a card, which was found in the Appellant’s possession,
• Having pleaded guilty to robbery, possession of a machete (joint enterprise possession) and possession of cannabis, the Judge sentenced him to 4 years YOI, delivering a determinative sentence following the pre-sentence report, finding that the appellant was not “dangerous”,
• The OASYS report (from September 2022) assesses him as at risk as risk of serious harm caused by re-offending, as 18% within 12 months, 30% in 24 months,
• He has 17 proven adjudications in YOI, but in late 2023 achieved enhanced prisoner status, and violence reduction mentor towards the end of his stay in YOI,
• He has recently started to engage with “Redtread”, a charity who run a café and food bank, who comment on his willingness to contribute positively to society; he is volunteering with them,
• He is living with and supported both financially and emotionally, by [MA], 20 years his senior, whom he has known since birth, who regard each other as in a parent/child relationship; they have a close bond and have a family life, and the Appellant is dependant on him for guidance,
• The Appellant and JS maintain contact, and are still attached to one another,
• The Appellant has never visited Jamaica, has no family there, no cultural or social experience of it, does not know the patios (sic), has no accommodation or job available; he has never worked, supported himself, sourced accommodation, or negotiated,
• He has been diagnosed with ASD which makes communication difficult, and he has difficulty managing his emotions; those with ASD find coping with new situations to be difficult and to build new relationship[s]; he is prone to going along with the crowd, and being led astray,
• Self-reliance in Jamaica is very difficult for outsiders (which he is), and the social support/charitable sector in Jamaica is sparse, difficult to source, and would require time and an ability to manage for a period of time before it might kick in,
• The Appellant does not have the skills or resources to integrate, to sustain himself,
• There are considerable risks for returned deportees to Jamaica, being an inherently dangerous and violent place, particularly for outsiders, and he is at considerable risk to himself there; the opportunity for rehabilitation there is significantly reduced,
• there is a lack of state/charitable infrastructure there to support him, and whilst he may receive some very limited financial support from MA for a short time, he is already very stretched, as he has 4 young children to support; this is unlikely to be sufficient to give the Appellant a real start and enduring help,
• If returned to Jamaica the Appellant is not likely to - absent of the emotional and practical support that he needs - integrate positively; rather, his mental and physical help is likely to significantly decline, albeit that I do not find that he would suffer an immediate catastrophic event…”
“Social and Cultural Integration
6. The Respondent’s decision is ambivalent about whether or not the Appellant is socially and culturally integrated, saying that offending detracts from what otherwise would be found. I find that despite his offending, he is integrated as required. He has lived here all his life, in the South London area, and speaks with a South London accent. He was educated until 15, albeit expelled from several schools, a “looked after” child, under the care of his corporate parent, and considers himself British. He certainly has shown anti-social cultural traits, and whether or not he is part of a gang - or just perceived to be so - he nevertheless identifies as British and South London; this is unsurprising as he has lived all his life here, and these are his social and cultural references. He has no affiliations elsewhere, and certainly not to Jamaica. His entire frame of reference is the UK. Latterly, he has shown interest in and was committed to volunteering, to trying to help lower violence in the YOI in which he was placed, and is keen to resolve his immigration status and to contribute to Society productively rather than negatively. I therefore find that he is socially and culturally integrated.” [In repeating this finding, we will address the appellant’s further offences later in these reasons].
“Very significant obstacles to integration
7. The Appellant relies on the expert country report of Luke de Noronha, July 2024, the expertise of which the Respondent does not challenge; in closing the Respondent correctly says that it is a matter for me what weight is given, and in [sic] makes and observation that one letter from an organisation called FURI has not been produced in evidence. That relates to the expert taking issue with the Respondent’s assertion that this organisation (FURI (International) provides services in Kingston, Jamaica, for deported Jamaican citizens who have no family, so can provide transitional shelter, meals, support to find work, counselling and up-skilling. This would support the Respondent’s case that the Appellant could be helped to find the basics. The report is well sourced, well-researched and in considerable detail. The expert has recently visited the country, has made contact with the organisation, and opines that it has never has (sic) provided such services to return[ee]s from Britain. I find that the evidence given is reliable.
8. I accept the expert’s conclusion (para 85-89) drawn from well-researched sources, that persons deported to Jamaica without family and social support routinely face destitution and isolation; added to this, for the Appellant having not been there before, with mental health problems, and a history of irrational and impulsive behaviour he will be disoriented and destitute. He will be hyper visible, and very vulnerable. He is unlikely to be able to access secure housing, social protection or health, and absent of having independent means will have to be dependant on state protection. Added to this the extreme and endemic levels of crime, he simply will be unable to safely negotiate this.
9. The Respondent did not suggest that the Appellant had previously visited Jamaica, had family or friends there. The most that could be said was that MA financially supports him in the UK, and would do so in Jamaica. I heard MA's evidence and accept that he cannot really afford to support the Appellant now, but does so by getting into debt; he has 4 other children to support, and has to juggle all commitments. I find that he is willing but not able to financially support the Appellant for any length of time either in the UK nor in Jamaica.
10. The Respondent's submission that as the Appellant currently has no mental health medication or support, so that this aspect was not a significant factor, was met and answered with a point well-made by Mr. Chirico that the Appellant derives emotional support from MA and JS. The Respondent conceded that there is a family life currently between the Appellant and MA. Further, whilst the Appellant does not currently take any medication for his mental health, he would not in Jamaica have any emotional support to negotiate all the challenges he would face there. He is simply not equipped to do so.
11. I find that there would be very significant obstacles to his integration into Jamaica.”
“Article 3 ECHR
…
23. Reliance is placed on the psychologist report of Emily Turton, specifically, that on return because of a combination of practical and environmental factors in Jamaica combined with his mental health difficulties, that he could enter a state of psychosis, a total emotional collapse (15.18). Whilst, that was not specifically challenged by the Respondent, it was argued that there was support as a safety net, which would act as protection; I have earlier in this decision rejected that argument in light of the report of Dr. de Norohna….”
The Respondent’s case
11. We should say that in light of the agreement on the facts, Ms McKenzie's submissions have been very limited. Moreover, to the extent that she did make submissions, in two aspects, they appeared initially to cross over, at least partly, into undisputed facts. However, following our question to her about whether these had already been resolved, she no longer developed these submissions. For completeness, we summarise them.
Points already addressed in the preserved findings
12. The first was in relation to the support which the appellant could expect to receive from a mutual friend of JS and the appellant’s biological mother. The mutual friend, C, was Jamaican and had visited Jamaica when the appellant was around four of five (so around 2006 or 2007, i.e. 17 years ago), and JS remained in contact with C’s children. MA had been on holidays to Jamaica. Ms McKenzie referred to what she said were comparable circumstances. In NA (Pakistan) v SSHD [2016] EWCA Civ 662, the appellant had lived in the UK since he was sixth months old, but there were still not very significant obstacles to his integration in Pakistan (although we note the Tribunal’s reasons, referred to by the Court of Appeal at §53, as including that NA had “chosen to retain cultural and other ties with that country, including choosing a wife who remained in Pakistan for 6 years after their marriage and who continues to speak Urdu as her main language”). Second, in Sanambar v SSHD [2021] UKSC 30, at §59, the Supreme Court noted the Tribunal’s finding that the fact that the appellant's mother had visited Iran, retained a connection with the country and had a close friend there was relevant, and could reasonably be said to afford the appellant some assistance in terms of integration, as he had at least one point of contact in the country to which reference could be made by or on behalf of the appellant. Mr Chirico pointed out that the existence of C and a visit to Jamaica in 2006 or 2007 had been discussed in JS’s witness statement, as had MA’s holidays there, and if relied on as the basis for support, this could and should have should have been argued before the Judge.
13. The second was in respect of the appellant’s alleged failure to be socially and culturally integrated in the UK, in light of his offending. The Judge had already answered this in respect of the evidence before her. However, we have also considered the appellant’s further offences, for which he has yet to be sentenced.
The remainder of the Respondent’s submissions
Article 3
14. By way of summary only, Ms McKenzie argued that while the respondent accepted the diagnoses of ADHD, PTSD and ASD, the appellant had not provided evidence of any medication that he was taking. The respondent relied on §13.2.4 of the Country Policy and Information Note, Jamaica: Medical and healthcare issues, March 2020, for the availability of treatments (both inpatient and outpatient) at a hospital in Kingston, Jamaica for psychiatric illnesses. The appellant had adduced no medical records, and it was difficult to identify what treatment would not be available in Jamaica, such as to support the contention that the decline in the appellant’s health would be rapid. Whilst Dr Turton had referred at §15.18 to potential factors contributing to the development of psychosis, which would be a possible scenario in terms of the impact of deportation, there was a gap of GP records and nothing to counter the evidence of availability of treatment in Jamaica.
Article 8
15. In relation to very compelling circumstances, Ms McKenzie reiterated the serious nature of the appellant’s index offence, his persistency in offending, and recent reoffending. The index offence was serious and described by the sentencing judge as “horrific”. He had 17 adjudications whilst in a YOI and had little regard for authority or UK laws, whether in or out of detention.
16. The weight to be attached to the public interest in the appellant’s deportation was “moveable” (see §39 of Akinyemi v SSHD [2019] EWCA Civ 2098). The cases where there were “very compelling circumstances” were rare (see §50 of HA (Iraq) & Ors v SSHD [2022] UKSC 22). This was not such a case, considering all the evidence holistically.
The Appellant’s case
17. We have considered, but do not recite, Mr Chirico’s skeleton argument.
18. The appellant had had an extremely chaotic childhood. He was diagnosed with ADHD, aged 10 years old. JS, his carer, had alcohol and cannabis dependency issues and whilst he had some contact with his birth mother, that has since ceased. He was raped as a child and went into care when he was 15 years old. His life had largely been in various institutions since then, following an escalation in his criminal offending. He was in HMP Belmarsh when he was 18 years old, which was hardly likely to be a therapeutic setting. That was not to minimise the impact of his offending, but it explained the context of his lack of current medication or treatment.
19. Mr. Chirico returned to the two expert reports. Dr. Turton's report was neutral as to the country of return, but it illustrated that on the basis of the appellant's health and personality issues alone, the effect of deportation would result in psychosis or have such an impact on his dignity as to breach his rights under Article 3 (see headnote (ii) and §57 of Ainte (Material Deprivation: Art. 3: AM (Zimbabwe)) [2021] UKUT 203 (IAC)). There was no suggestion that the appellant was malingering. He has a long history with CAMHS (§8.1 of Dr Turton’s report). Dr Turton had referred to him taking medication for his ADHD (‘Concerta’) which he had ceased because of side effects (§8.2). The diagnoses of ADHD, ASD and PTSD relating to his traumatic experiences were recorded and unchallenged (§§8.1, 8.17, 12.27 and 15.2). None were short-term. Dr Turton had also referred to his regular cannabis use, which had not helped matters. Close relationships often resulted in verbal disagreements (§10.1). In the context of assessing his ASD, Dr Turton noted that the appellant had never lived by himself (§12.20). He had suffered deep distress as a child, had associated with anti-social groups, and as a consequence of his conditions had lost the ability to think about the impact of his actions on others, particularly where he breached boundaries. This was a consequence of his own attempts to deal with stress which resulted in “acting out”. He had been diagnosed with ADHD but possibly too late, resulting in a lack of appropriate help at school and instead his exclusion (§15.3). Dr Turton explained the likelihood of distressed behaviours caused by a change in routine (§15.5). The various adjudications whilst the appellant was in a YOI reflected his behaviour when disturbed and were evidence of obvious stresses and his inability to cope in unknown situations. Dr Turton had expressed her strong view of her deep concern about the effect of deportation, bearing in mind his ASD, ADHD and PTSD, regardless of where he would be returning, with no family or friends (§15.17). There was, she opined, a risk of significant emotional collapse and development of psychosis.
20. From this evidence, it was clear that the appellant’s ASD and ADHD were particularly likely to be adversely affected by a change such as being forced to go onto a plane, to leave the UK for the first time, and permanently. The risk of psychosis, which only needed to be a real risk, clearly breached Article 3.
21. If this were not enough, Dr de Noronha’s report provided evidence on the situation in Jamaica, which would only worsen the risk to the appellant. Mr Chirico reiterated aspects of this in the context that Ms McKenzie had relied on additional evidence, namely a two page advert from an NGO called the “Open Arms Development Centre”, which listed support for returnees to Jamaica up to 24 months after their return, including accommodation for up to five nights, help with mental well-being and help finding a job. As the respondent acknowledged, Dr de Noronha had considered this in his report (§65). There was a difference between what it promised or purported to offer and what it, and other NGOs did. Dr de Noronha had carried out in-country field research on multiple occasions, interviewing returnees and representatives at government level, as well as homeless shelters including “Open Arms” (§7). One NGO offered limited support and was run on a “shoestring” (§61). Another was no longer operational, and Open Arms had never been able to help people find housing beyond emergency accommodation or find employment. The UK Home Office had reduced set funding and replaced it with piecemeal support. At most, the appellant might hope for five days’ emergency shelter in a hostel so insecure that some chose not to stay in for fear of being subjected to violence (§57).
22. Dr de Noronha also confirmed the limited health provision in Jamaica in relation to mental health (§74). The appellant was likely to face an absolute lack of care and support, at least in the first few months. There was under-resourcing of community health services, and even if medication were available, it was often unaffordable. The Judge had accepted that the appellant had not been receiving intensive mental health treatment whilst in prison, but crucially had the benefit of close family support in the UK from MA and JS (§10). Without that emotional support, he would be unable to cope with the shock and distress of removal. Even if there were access to a small number of inpatient psychiatric beds on an acute basis, he would have no means of understanding how he could access them, and the risk was simply too high.
23. Dr de Noronha had concluded (at §§85 to 89) that the appellant was at risk of destitution, would be extremely vulnerable, unlikely to access secure housing, social and health support, in a society with extreme and endemic levels of crime and violence.
24. The appellant would face this on removal, all while suffering from an extremely high level of stress. Even noting Dr. Turton's view which was neutral as to the country of return, in the case of return to Jamaica, the appellant was at added risk of emotional collapse and inhuman or degrading treatment, which would be rapid. The two reports needed to be read together, just as Dr de Noronha had considered and referred to Dr Turton’s report. At best, there might be accommodation for perhaps a five-day period, but after that, the appellant would have no access to accommodation and his mental health would spiral down. There would be no effective signposting as he would still be poorly and not able to access work, a job or accommodation. The additional evidence on which the respondent sought to rely, namely the two page ‘flyer’ from “Open Arms” gave no details of its capacity to help someone with the appellant’s complex medical needs. Whilst there was no direct legal authority on “rapidity”, in this case there was a real risk of immediate decline in the appellant’s mental health.
25. Referring to AM (Zimbabwe) v SSHD [2020] UKSC 17, two forms of harm could give rise to an Article 3 breach: a sufficiently serious decline in a state of health, namely a serious, rapid and irreversible decline in the appellant's health resulting in intense suffering; or a significant reduction in life expectancy. The appellant met both. The causes of harm could be because of the unavailability of treatment, or the lack of access to available treatment which was adequate. That was in contrast to an emphasis on bare availability, in the line of authorities such as N v United Kingdom (2008) 47 EHRR 39. The term “adequate treatment” was broad. It was not a reference to the bare availability of drugs, but a structure of treatment which could avoid forms of harm meeting the Article 3 threshold. There was no distinction between physical illnesses and mental health illnesses (see MY (Suicide risk after Paposhvili) [2021] UKUT 00232 (IAC)). In addition, this Tribunal had held in Ainte that the same threshold established in AM (Zimbabwe) was applicable in cases where a person faced a real risk of degradation incompatible with human dignity (§61 of Ainte).
26. In this case, it had already been accepted that the appellant's deportation would result in a serious and irreversible decline in his health, for the purpose of Article 3. The question was the rapidity of that decline. Given both reports, there was every expectation that it could happen in a matter of days.
27. Dealing with a number of the respondent’s points, the appellant did not need to show that no treatment was available. The question instead was whether the appellant could access it. The problem of the CPIN evidence was that it simply provided a list of therapies at a hospital, with no evidence as to the waiting times for such treatment, the availability of acute care, and the duration of available treatment. With regard to very significant obstacles to integration, and in particular, a friend of JS, ‘C’, who might assist having visited Jamaica some 17 years previously, it was simply too late to raise that point in circumstances where the Judge had already found that there would be very significant obstacles. Finally, in relation to the seriousness of the index offences and recent reoffending, there was no stepping aside from this, but the appellant's conduct in prison reflected his inability to cope, with his responses resulting in breaching boundaries.
Discussion and conclusions
Article 3
28. We first remind ourselves that Article 3 ECHR is an unqualified right, as mandated by Parliament. That means that if removal of a person would otherwise breach Article 3, the public interest in the maintenance of effective immigration controls and consideration of any justification is not relevant. Article 3 is nevertheless a high threshold. That being said, the issues in this case are largely unchallenged by the respondent. The question is the rapidity of the decline in the appellant’s health in the event of his removal. This case is in some respects similar, but in others far removed from the paradigm case of Bensaid v United Kingdom (App. No. 44599/98). In that case, the ECtHR had noted at §38 that the applicant faced the risk of relapse even if he stayed in the UK as his illness was long term and required constant management. Removal would arguably increase that risk, as would the differences in available personal support and accessibility of treatment. Nonetheless, medical treatment was available to the applicant in his country of origin, Algeria, and the fact that his circumstances in Algeria would be less favourable than those enjoyed by him in the UK was not decisive from the point of view of Article 3 of the Convention. The risk of a deterioration was speculative (§39).
29. On the one hand, like Bensaid, the appellant has a long-standing mental health issue of PTSD. This is alongside his ASD and ADHD. As noted at §8.1 of Dr Turton’s report he also was previously diagnosed with hyperkinetic conduct disorder in 2011 and Childhood Emotional Disorder in 2014. He has a number of adjudications whilst in prison and has continued to offend on release. However, he has not yet descended into a form of psychosis. Although he is not currently taking medication or receiving treatment, he lives in an environment in which he is familiar, namely UK society, and with the support of family members. That, of course, has not gone on to prevent him from re-offending, but that is not the question here. Two factors which the Judge had considered and decided on, was that there was a changed risk of a complete emotional collapse or psychosis, and that a lack of access to treatment was not speculative. Nothing in Ms McKenzie’s submissions (either the “Open Arms” flyer or the CPIN cited) leads us to doubt the two expert reports, which, as we had explored with the representatives at the case management hearing, had not been challenged since. To do so, the respondent would have needed to give the experts the chance to respond, as we had explored at the case management hearing (see TUI UK Ltd v Griffiths [2023] UKSC 48, in particular §70).
30. The question is whether a risk of a descent into psychosis which is rapid in nature, due to a lack of access to adequate medical treatment, was speculative. Adopting the analysis in AM (Art 3; health cases) Zimbabwe [2022] UKUT 00131 (IAC), in particular §17(6), the appellant had met the threshold of providing evidence to establish a “prima facie case” on rapidity. The unchallenged evidence is of someone with various medical conditions, which have not yet worsened, but by their nature are exacerbated by change. The expert evidence is that “distressed behaviours” may be due to several factors including a change in routine, as the appellant has a narrowed view of the world and a rigid cognitive style (§15.5 of Dr Turton’s report). Dr Turton confirmed (if it needed confirming) that people with ASD find it difficult to cope with new situations and the appellant’s distressing behaviours are in the context of his stressful environment.
31. In this context, the change in the appellant’s environment on his deportation could hardly be greater. It would be immediate. It is permanent removal from the only country the appellant has ever known, to a country about which he knows nothing of any practical use and no one. On Dr Turton’s evidence alone, there is no reason to suppose that the predicted serious decline would be anything other than rapid. The only additional question, which Dr de Noronha’s report answers, is whether the risk of rapid decline would be mitigated by swift access to acute medical care and support. Dr de Noronha’s report unarguably provides sufficient prima facie evidence that care would be entirely lacking (he states this explicitly, as noted above).
32. The respondent has not countered the appellant’s case to raise any doubts about it (AM (Zimbabwe) UKUT at §17(6)). The respondent has referred to the “Open Arms” document, which Dr de Noronha had already addressed. Dr de Noronha also addressed the CPIN which was out of date at the time of writing his report, and we accept that the CPIN’s list of treatments at a Kingston Hospital, without any discussion about practical access to them, does not raise any serious doubts regarding the appellant’s case. Taking a step back, the appellant's case is simple. He has no financial means. He has never worked. He has effectively, for large parts of his life, been either subject to abuse or has been institutionalised. He would therefore ‘return’, in the context of having ASD, ADHD and PTSD, to a complete change of circumstances. Dr de Noronha’s unchallenged evidence, in terms, was that within a matter of days, the appellant would be at risk of destitution, homelessness and poverty, which, even setting aside the question of destitution, would only compound the risk of a breakdown in the appellant's mental health. In the circumstances, the combination of the evidence on the appellant's medical conditions combined with the country evidence answers the question of whether the appellant's deportation would risk breaching his rights under Article 3 ECHR.
33. Despite having committed crimes described as “horrific,” the test laid down by Parliament is an unqualified right. We have absolutely no doubt that, on the evidence before us, the appellant’s deportation would breach his Article 3 right. It was open to the respondent to adduce additional evidence showing any serious doubt in the appellant’s evidence. The respondent has not done so. The appeal therefore must succeed on Article 3, based on the effect on the appellant’s health.
34. Separately, although it is not necessary to make a finding on this point, we also find that the appellant's likely destitution would be below the level of dignity, such as to engage Article 3, as per Ainte. This is for the reasons set out above, namely the risk of destitution, poverty and ill-health.
Article 8
35. On the one hand, Mr Chirico suggests that it is axiomatic that, having succeeded on Article 3, the appellant must also succeed on Article 8. This does not always follow, so we go through the proportionality analysis. We reiterate, again, our consciousness of the nature and seriousness of the appellant’s index offences, and the fact that he continues to offend. We are acutely conscious of the number of adjudications while in detention, and that he reoffended only a short period after his earlier release. He has never been lawfully resident in the UK and the public interest in his deportation is weighty, such that there must be very compelling circumstances.
36. On the other hand, a number of countervailing factors are relevant. Whilst the appellant has not been lawfully resident in the UK for the purposes of Section 117C(4)(a) of the 2002 Act, we accept Mr Chirico’s submission that he remains socially and culturally integrated into the UK, notwithstanding his most recent offending. He has the continued support of family members whose witness statements have been provided to us. There would also, as found by the Judge, be very significant obstacles to his integration in Jamaica, namely the emotional collapse and other factors cited by the Judge. There is therefore unquestionably private life which would be interfered with.
37. With regard to the appellant’s family life, his family life, albeit not preventing him from offending, is a protective factor in respect of his mental health. In simple terms, his UK family members, MA, JS and a brother in the UK, are the only family he has ever known. There is no suggestion that any of those family members would return or travel with him to Jamaica.
38. It is also relevant that the appellant has only ever lived in the UK. He was a victim of rape aged 11 and apparently no protective action was taken. He was taken into care and the Local Authority failed to act in his best interests in seeking to register him as a British citizen.
39. Without in any way excusing the nature of the appellant’s offending, this is an individual who has been let down by his carers, his parents, and the Local Authority, and has been in and out of state institutions since aged 15. He has complex health needs, which are linked to his behaviour in challenging authority and an inability to cope with change. His health would rapidly deteriorate on permanent removal where he would be destitute, homeless, unable to access adequate medical treatment and in a Jamaican society with endemic and extreme violence. In our view, these circumstances are very compelling. Refusal of leave to remain would also breach the appellant’s rights under Article 8.
Notice of decision
40. The appellant’s appeal succeeds on the basis of Articles 3 and 8 ECHR.
41. The respondent’s decision to refuse the appellant’s human rights claims is not upheld.


J Keith

Judge of the Upper Tribunal
Immigration and Asylum Chamber

7th November 2025
ANNEX – ERROR OF LAW DECISION



IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000209

First-tier Tribunal No: HU/02005/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE KEITH
UPPER TRIBUNAL JUDGE GREY

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

‘GB’ (JAMAICA)
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr P Skinner, Counsel instructed by the Government Legal Department
For the Respondent: Ms G Kiai, instructed by Bindmans LLP

Heard at Field House on 6th June 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the respondent is granted anonymity. No-one shall publish or reveal any information, including the name or address of the respondent, likely to lead members of the public to identify the respondent. Failure to comply with this order could amount to a contempt of court. The reason is that the respondent was the victim of rape as a minor and therefore is entitled to anonymity by virtue of having been the victim of a sexual offence.


DECISION AND REASONS
1. We refer to the parties as the Secretary of State and the Claimant, in order to avoid confusion. The Secretary of State appeals against the decision of a Judge of the First-tier Tribunal, who in a judgment promulgated on 22nd October 2024, allowed the Claimant’s appeal under Article 8 ECHR, but rejected the Claimant’s appeal under Article 3. In the Claimant’s response pursuant to Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Claimant has contended that the Judge erred in her analysis, reasons and conclusion in dismissing his Article 3 appeal. We have jurisdiction to consider such a challenge pursuant to Smith (appealable decisions; PTA requirements; anonymity) [2019] UKUT 00216 (IAC), in particular headnote (5) which indicates that there is no jurisdictional fetter on us considering an appeal where the party seeking permission does so on grounds on which he was unsuccessful.
2. Save for one issue in respect of the rapidity of the decline in the Claimant’s health, for the purposes of the Article 3 claim, the parties have not challenged the Judge’s findings. The findings were detailed and clearly structured. We have considered them in full but do not recite them except to explain our decision on whether the Judge erred in law.
The Claimant’s personal history
3. As the Judge found, the Claimant was born in the UK on 12th September 2002 to a Jamaican mother. He is a Jamaican national, as a result. When he was two weeks old, his mother gave care of him to a friend, ‘JS’, and he has had limited contact with his mother since. His father died or was killed in Jamaica when he was very young. The Claimant did not know the identity of his father. He had no relationships, other than the limited relationship with his mother, with either his maternal or paternal families, and they played no part in his upbringing. He has never left the UK.
4. The Claimant has no family known to him in Jamaica, is unaware of Jamaican cultural society, has never had a job, and would not have shelter, practical or emotional support there.
5. JS raised the Claimant, despite her own substance abuse issues, eventually with the permission of a Family Court. He lived with her until aged 15, but there was violence in the home towards her and him. As a result, he became a looked-after child between 2012 and 2019, under the care of the London Borough of Lambeth. During that period, those with parental responsibility for the Claimant could have applied for him to be registered as a British citizen, but they did not do so. The Judge recorded there was no reason why the Secretary of State would have refused registration when the Claimant was a child, had an application been made.
6. At the age of nine, the Claimant was raped. His rapist was never prosecuted. He suffered PTSD. He was referred frequently to Child and Adult Mental Health Services (‘CAMHS’) as a result of his mental ill-health. He was also diagnosed at an early stage with attention deficit hyperactivity disorder (‘ADHD’). His schooling in the UK was interrupted with him being expelled from various schools due to his challenging behaviour. He was placed in local authority approved foster care, when his relationship with JS broke down, aged 15. For a period, he became homeless. Being without any immigration status, he has never worked.
7. The Claimant was remanded in custody, pending his prosecution and trial for murder in 2020. He was acquitted. He pleaded guilty to possession of a bladed instrument in March 2021 and was sentenced to four months at a Young Offender Institution (‘YOI’). The Judge recorded the index offences committed on 23rd October 2021, upon his release from the YOI, of a street robbery involving six masked men including the Claimant, who felled a lone man from behind, in a street at night, kicked him to the ground, and threatened to chop off his legs with a machete. They cut him on the leg to reinforce their threat. Their victim gave up cash and a bank card which was later found in the Claimant’s possession. The Claimant pleaded guilty to robbery, possession of a machete (joint enterprise possession) and possession of cannabis, for which he was sentenced to four years in a YOI, albeit with a finding in the criminal court that the Claimant was not ‘dangerous’ following an assessment in a pre-sentence report. The Judge was nevertheless conscious of 17 adjudications while the Claimant was in detention in the YOI, although he later achieved ‘enhanced’ status by 2023, with a violence reduction mentor. Upon release, the Claimant has lived with, and been supported financially by, a male friend, twenty years his senior, whom he has known since birth. They regard the relationship as akin to father and son. The Claimant has also been diagnosed with autism, which affects his ability to communicate and to manage his emotions. The Judge also considered the risk for returned deportees to Jamaica. The Judge found that in the absence of the Claimant having any skills or resources with which to integrate or sustain himself in Jamaica, his mental and physical health was likely to decline significantly, albeit he would not suffer an immediate catastrophic event so as to engage Article 3 ECHR.
The Judge’s reasons under challenge
8. There are two parts of the judgment which the parties challenge, for different reasons. The first, by the Secretary of State, is the Judge’s conclusion at §5, that:
“Lawful residence
5. In response to the Appellant’s assertion that he met the definition of “lawfully resident in the UK” for most of his life (in fact all his life) applying Akinyemi [2017] Mr. Sartorious [the Presenting Officer representing the Secretary of State] submitted that the question of being lawfully resident for half his life, would not apply, as the clock stopped at the commission of the offence. In light of Akinyemi, as in this case an Appellant born in the UK and is not in breach of any immigration law, cannot be said to have been unlawfully here, and this translates into having been lawfully in the UK. Accordingly, the Appellant was lawfully here until his first conviction in 2021, when he was 18 years of age.”
9. We pause to observe that in fact although the Secretary of State’s Presenting Officer before the Judge argued that lawful residence ended on the commission of the index offence, the Secretary of State had made clear in her decision to refuse the Claimant’s human rights claim that she argued that the Claimant had never had any lawful residence.
10. The Judge concluded that there would be very significant obstacles to the Claimant’s integration in Jamaica. Having carried out a balancing exercise, she concluded there were very compelling circumstances (the test introduced by Parliament) such that the Secretary of State’s refusal to allow the Claimant to remain in the UK on human rights grounds was disproportionate. At §19, the Judge concluded:
“19. ... Importantly, he was born in the UK, and has never been away from it; he was here lawfully, and failed by his corporate parent to resolve his status. He has never been to Jamaica ...”
11. The second challenge, by the Claimant, is to the Judge’s assessment of his claim under Article 3. The Judge accepted that there was a real risk of an irreversible decline in the Claimant’s health on his return to Jamaica, based on the unchallenged expert report of a Consultant Clinical Psychologist, specifically that given his mental health difficulties, he could enter a state of psychosis and a total emotional collapse. However, the Judge noted that the timescales to engage Article 3 ECHR suggested “imminence (ref rapid’)” and she did not find the report, “sufficient to conclude that this would be met” (§23).
The Secretary of State’s appeal
12. The Secretary of State argues that the Judge misapplied the case of Akinyemi v SSHD [2017] EWCA Civ 236 (‘Akinyemi No. 1’) in assessing whether the Claimant could be considered to have been lawfully resident in the UK, which in turn had a material impact on the Judge’s overall decision to allow the Claimant’s appeal. In relying on Akinyemi No. 1, the Judge had concluded that because the Claimant was born in the UK, that meant that he had never breached any immigration law. It followed that he had been lawfully resident in the UK. However, although Akinyemi No. 1 stated that a person born in the UK could not be considered to have resided “unlawfully” for the purposes of Section 117B(4) of the Nationality, Immigration and Asylum Act 2002, (that section addressed general weight to be attached to private or family life when someone was in the UK unlawfully), it was not an authority for the proposition that such person had been “lawfully resident” for the purposes of the deportation provisions in Section 117C(4)(a). That required consideration of whether the Claimant had a right of abode in the UK, for the purposes of Section 1 of the Immigration Act 1971. The Secretary of State’s Immigration Directorate Instructions made clear that although children born in the UK were not present unlawfully and not required to apply for leave to remain, they did not have the right of abode. Unless and until the Claimant obtained registration as a British citizen or leave to remain, his residence in the UK was not lawful.
The Claimant’s ‘Rule 24’ response
13. The Claimant provided a response pursuant to Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008. The Claimant noted that the Secretary of State did not challenge the majority of the Judge’s findings. First, the Claimant argued that the Judge had not erred in her conclusion that he had been lawfully resident, for the purposes of Section 117C(4)(a). Second, and in the alternative, any error was immaterial to the Judge’s overall balancing exercise required by Section 117C(6), as she was bound to have reached the same conclusion.
14. However, the Judge had erred in her conclusion that the Claimant’s removal would not breach his Article 3 rights.
15. On the definition of “lawfully resident” (Section 117C(4)(a)), the Secretary of State could only succeed if the definition had no direct connection or place alongside the definition, “at a time when the person is in the United Kingdom unlawfully” (Section 117B(4)). A fair understanding of their meanings required them to be read coherently, as part of a whole. Bearing in mind §42 of Akinyemi No. 1, what was meant by “lawfully resident” had to be understood by its statutory context. The context was provided by Section 117A. This made clear that the function of Sections 117B and C was to enable a decision maker to strike a fair balance in immigration cases. They were intended to provide shortcuts to measuring the weight to be attached to a person’s private life. The statutory and factual context, as explained in Akinyemi No. 1, (who was also a foreign criminal, born in the UK and liable to deportation) was the same as for the Claimant. The meaning of “lawfully resident” was simply the opposite of presence in the UK, “unlawfully”. As Akinyemi’s presence was not unlawful, his residence must be lawful. The same was true of the Claimant.
16. Such an understanding was consistent with the decision in Chief Adjudication Officer v Wolke [1997] 1 WLR 1640, cited by the Court of Appeal in Akinyemi No. 1, that those who had not required leave to enter the UK, were not required to leave. It was also consistent with the Court of Appeal’s later decision in Akinyemi v SSHD [2019] EWCA Civ 2098 (‘Akinyemi No. 2’). At §40 of Akinyemi No. 2, the Court had concluded that it was important to go back to the facts of the case and to be careful to identify, as a relevant fact, that the individual was in the UK “lawfully for the whole of his life”. Moreover, this Tribunal had confirmed in MS (British citizenship; EEA appeals) Belgium [2019] UKUT 356 (IAC) at §120 that Sections 117B(4) and 117C(4)(a) asked the same question about lawfulness or unlawfulness. Whilst the Court of Appeal had confirmed that presence which was “unlawful” was not necessarily the same thing as “not being lawful” (see §41 of Akinyemi No. 1) the context and purpose of Part 5A of the 2002 Act indicated that the answers to the questions of whether a presence was unlawful or not lawful should be the same.
17. In the alternative, any error was immaterial in the context of the Judge’s balancing exercise, conducted in accordance with Section 117C(6) of the 2002 Act, namely the “very compelling circumstances” test. When deciding what weight should be attached to the public interest in deporting the Claimant, the distinction about whether the Claimant’s residence was lawful or not made no difference to the weight to be attached to that lifetime residence. That was consistent with the approach taken in Akinyemi No. 2, in looking at the substance rather than the form of the legislation.
Article 3 ECHR
18. However, the Claimant contended that the Judge erred in her analysis of the Article 3 claim. Whilst the Judge had accepted that there was a real risk of a serious and irreversible decline in the Claimant’s health, she erred in treating “rapid” (part of the test for Article 3, discussed in AM (Art 3; health cases) Zimbabwe [2022] UKUT 00131 (IAC)) as equivalent to “imminent”.
19. In the alternative, the Judge had failed to give any or adequate reasons for concluding that the harm to the Claimant would not be rapid or imminent, in light of the expert medical evidence. All the Claimant needed to show (as he had shown in this case) was a real risk of the impact of various factors, all of which would impact on his health: destitution in Jamaica, separation from UK family, a risk because of extreme and endemic levels of violence and crime in Jamaica, the Claimant’s inability to access secure housing, social protection or social and health support; and a risk of psychosis or of turning to substance misuse or criminal activities, because of a vulnerability to exploitation.
The parties’ respective submissions
20. The representatives provided us with detailed skeleton arguments and oral submissions, which we do no more than summarise, but which we have considered in full. We then explain our decision.
21. Both parties were agreed that there was no explicit definition or legal authority for the words, “lawfully resident,” for the purposes of Section 117C(4)(a). Instead, there were analogous cases which each party suggested supported its contention as to the clear and unambiguous meaning of the phrase. They accepted that this was matter of ‘pure law,’ in the sense that there was no factual dispute in this case which had any bearing on the definition.
The Secretary of State’s position
Section 117C(4)(a) – “lawfully resident”
22. The Judge had misunderstood and misapplied Akinyemi No. 1. The Court of Appeal had not considered Section 117C(4)(a) at all in that case, rather it had considered Section 117B(4).
23. Instead, the Judge had failed to consider and apply cases which had considered the phrase, “lawful residence” in different contexts: the Court of Appeal in SC (Jamaica) [2017] EWCA Civ 2112, particularly at §§52 to 57; and Tirabi (Deportation: “lawfully resident”: s.5(1)) [2018] UKUT 199 (IAC), at §§8 to 14.
24. Section 117B(4) and Section 117C(4)(a) used different phrases (“when a person is in the UK unlawfully”, compared to “has been lawfully resident”). The reasonable inference was that this reflected Parliament’s deliberate choice in using different concepts. If Parliament had intended otherwise then they could have drafted them in the same terms.
25. In R (ST) (Eritrea) v SSHD [2012] UKSC 12, the Supreme Court had analysed the meaning of the word, “lawfully” in Article 32 of the Refugee Convention (“The Contracting States shall not expel a refugee lawfully in their territory”). The Court had considered context. This implied that the person was not merely present in the territory, but was there lawfully, which implied that that his presence was not just being tolerated, but that he had a right to be there (§32).
26. In the Claimant’s case, the statutory context of the two provisions was different. While there had to be an overall coherence to Part 5A of the 2002 Act, the structure of Sections 117B and 117C meant that they had different purposes and operated differently. The Court of Appeal had considered their structure and operation in MA (Pakistan) and Others v Upper Tribunal (Immigration and Asylum Chamber) and Another [2016] EWCA Civ 705, in particular from §14 onwards.
27. Contrary to the Claimant’s submissions that Sections 117B(4) and 117C(4) both directed decision-makers on the weight (or lack of weight) to be given to specific factors, Sections 117B(2) to (5) identified factors relevant to the public interest and then gave directions as to relevant weight. These sub-sections reflected the full Article 8 proportionality assessment recognised by the Court of Appeal in Huang and Others v SSHD [2005] EWCA Civ 105.
28. In contrast, sub-sections 117B(6); 117C(4) and 117C(5) did not give directions on weight, and were instead ‘short cuts.’ For example, if a foreign criminal, as defined, met Section 117C(4), and his prison sentence was less than four years, the public interest did not require his deportation. If someone were not liable to deportation, and he met Section 117B(6), the public interest did not require his removal. There was no wider proportionality assessment necessary or appropriate in deciding whether someone met those sub-sections. Section 117B(4) was a ‘relevance and weight’ provision, as part of the ‘Huang’ assessment. In contrast, Section 117C(4)(a) was part of a ‘short cut’.
29. The short cuts could not diminish an Article 8 right, and the result of a proportionality assessment provided, as Mr Skinner summarised it, the Huang ‘floor.’ Each of the short cuts might afford respect of greater practical benefit to a foreign criminal, because without them, the Huang floor would often permit deportation. It was understandable, in this context, why Parliament would choose to limit the benefit of the Section 117C short cut to foreign criminals who were not merely being ‘tolerated’, but had a positive right to reside in the UK, in contrast to Section 117B(4). In answer to a question from this Tribunal as to whether the Court of Appeal’s discussion of ‘short cuts’ in HA (Iraq) v SSHD [2020] EWCA Civ 1176 (particularly §29) reflected an understanding of how Sections 117B and 117C applied in practice, rather than a process in relation to a ‘floor’, Mr Skinner responded that if a person did not meet the short cut in Section 117C(4), then their circumstances required a further Article 8 proportionality assessment.
30. Moreover, a justification for the ‘little weight’ provisions of Sections 117(4) and (5) was that those with precarious immigration status or present unlawfully in the UK had no legitimate expectation of their continuing presence and could be removed at any time. In contrast, someone who was legally irremovable and who was entitled to acquire British nationality (such as someone born in the UK, without leave to remain, even if not a British citizen) would have such a legitimate expectation (see §42 of Akinyemi No. 1). In contrast, a foreign criminal who was liable to deportation had no legitimate expectation to remain, regardless of their immigration status.
31. None of the authorities which the Claimant relied on supported the proposition that “lawfully resident” merely meant “not unlawful”. On the Court of Appeal’s own analysis, it had not considered in Akinyemi No. 1 the meaning of “lawfully resident” in Section 117C(4)(a). Akinyemi No. 2 similarly did not provide any assistance. The Claimant had relied on §40 of that case, where the Court had referred to the fact that the Claimant was in the UK “lawfully for the whole of his life.” That statement had not been based on any detailed consideration of the meaning of “lawfully resident” in Section 117(C)(4a).
32. The Upper Tribunal’s decision in MS did not support the proposition that the each of Sections 117B(4) and 117C(4)(a) had to be given the same meaning, only that the same question arose in respect of each. In that case, the issue had been whether an EEA national who was not exercising treaty rights required to leave/enter, absent which they were in the UK ‘unlawfully’ and, a fortiori, were not lawfully resident if they did not have it.
33. The Claimant’s entitlement to apply for registration as a British citizen on his tenth birthday, as a child born in the UK, who had not been absent from the UK, pursuant Section 1(4) of the British Nationality Act 1981, did not assist him. There may be a whole host of reasons why those with parental responsibility for such children might not apply. They may chose not to do so, or may not have the money to do so, or, as it was suggested here, apply at the last moment, or a combination of all three. An application by the Claimant aged ten would not have resulted in being lawfully resident for more than half of his life, as he was 18 when he committed the index offence.
34. The authorities in which Courts had considered Section 117C(4), and so which were more relevant, were SC (Jamaica) and Tirabi. In SC (Jamaica), the Court considered Paragraph 399A of the Immigration Rules, which contained terms identical to Section 117C(4). At §§54 to 57, the Court confirmed that “lawful residence” in Paragraph 339A had the same meaning as in Paragraph 276A(b) (the long residence route to gaining indefinite leave to remain), namely existing leave to enter or remain, or temporary admission followed by a later grant of leave, within the meaning of Section 11 of the Immigration Act 1971. This reflected that the concept of precarious status was not relevant to a child. It was consistent with the Secretary of State’s position in this case, which was that what was required for lawful residence was more than mere tolerance, but a positive conferral of some positive right even if, as in SC (Jamaica), that was a positive right less than the right to remain or enter, i.e. only temporary admission. This Tribunal in Tirabi applied SC (Jamaica) by further analogy, treating the meaning of paragraph 276A as relevant to Section 117C(4)(a) (§9 of Tirabi).
35. In light of the above, there was no reason to give “lawfully resident” in Section 117C(4)(a) the strained construction which one otherwise would need to do, to make it comparable to Section 117B(4).
36. In response to our questions, Mr Skinner accepted that the logic of his submissions resulted in there being three groups of people to whom Sections 117A to C might apply, and which were exclusive:
36.1. Those whose presence in the UK was unlawful (relevant to weight in Section 117B(4)). This comprised those who entered without leave, and those who entered with leave but who had overstayed. It did not include those with temporary admission or immigration bail.
36.2. Those who were lawfully resident, including those with temporary admission, even if lawful residence was later ended because of the effect of a deportation order.
36.3. Those whose presence was merely ‘tolerated,’ who had never been granted leave to enter or remain or temporary admission. The Claimant fell into this group, rather than the first group, because of Akinyemi No. 1. Just because he was not a member of the first group did not make the Claimant a member of the second group.
37. Mr Skinner also submitted that there was no need to consider any external aids to construing the meaning of “lawfully resident.” Its meaning was clear. For the purposes of the ECHR and associated case law, the Secretary of State’s interpretation did not violate the ‘Huang’ floor. In any event, neither party had relied on any external aids to construction and none were before us. The only obvious aid was the Immigration Rules, which would be circular. The Claimant had not suggested that the Rules or any policy or instructions provided a more expansive definition of the phrase. Understanding its meaning was a matter of pure statutory interpretation.
38. The Judge’s error was material. To argue otherwise would be to contend that this Tribunal ought not set aside the Judge’s decision, pursuant to Section 12 of the Tribunals, Courts and Enforcement Act 2007, because the Judge “would have been bound to”, “must” or “would inevitably” have reached the same conclusion or if, “on the materials before the [Judge] any rational tribunal must have come to the same conclusion”. The authorities for these propositions were: Detamu v SSHD [2006] EWCA Civ 604 (§§14 and 18); Sadovska v SSHD [2017] UKSC 54 (at §31); AJ (Angola) v SSHD [2014] EWCA Civ 1636 (at §49); and ASO (Iraq) v SSHD [2023] EWCA Civ 1282 (at §§43 and 44). Those tests were not met in this case. The test of “very compelling circumstances” in Section 117C(6) on which the Claimant succeeded was a high bar. The lawfulness of the Claimant’s residence was material to that analysis, in the sense that it could not be said that any rational Tribunal must have come to the same conclusion.
Article 3 ECHR
39. The Judge had not erred in law. The Judge had correctly directed herself on the law and had referred explicitly to a decline in any health being ‘rapid’. This Tribunal was only entitled to interfere with the Judge’s conclusions on primary facts if the Judge was “plainly wrong,” applying the principle in Volpi v Volpi [2022] EWCA Civ 464, at §2. The Judge had given sufficient reasons for her findings and conclusion. It was clear why the Judge had rejected the Claimant’s claim. There was a gap in the evidence on the rapidity of a decline in the Claimant’s health.
The Claimant’s position
Section 117C(4)(a) – “lawfully resident”
40. Ms Kiai also accepted that the meaning of “lawfully resident” was unambiguous, that it was not appropriate to consider any external aid to understanding its meaning, and that the question was one of pure statutory construction.
41. The Claimant accepted that the words “unlawfully” and “lawful” were different words, with different meanings, but that took the Secretary of State’s case no further. The question was whether “not lawful” meant something different from “unlawfully”, i.e. whether there was a third group, as Secretary of State contended, or only two, as the Claimant argued. Ms Kiai argued that to construe a third group which was required if the Secretary of State’s position was correct, was artificial and created a group with an unclear boundary. In contrast, the Upper Tribunal in MS made clear at §120 that Sections 117B(4) and 117C(4)(a) asked the same question about lawfulness or unlawfulness, in the context of the coherence of the provisions in Sections 117B and 117C.
42. The Secretary of State’s reliance on the concept of a “right of abode” was misconceived. That conflated a “right of abode” with “lawful residence.”
43. Moreover, neither SC (Jamaica) nor Tirabi assisted the Secretary of State. They were cases decided on the facts. Neither appellants in those cases was born in the UK, nor had they lived their entire lives in the UK.
44. Instead, the Court in SC (Jamaica) considered whether temporary admission pending a successful asylum claim counted as “lawful residence” for the purposes of Paragraph 339A of the Immigration Rules. It concluded that it did. However, the Court of Appeal confirmed in CI (Nigeria) v SSHD [2019] EWCA Civ 2027, (at §44) that SC (Jamaica) was not authority for the proposition that “lawful residence” meant the same in section 117C(4) as in Paragraph 276A. Rather, it reflected recognition of a pre-existing status as a refugee.
45. In Tirabi, the Upper Tribunal noted at §9 that the Court in SC (Jamaica) had been asked to consider whether “lawful residence” for the purposes of Section 117C(4) and Paragraph 339A could begin with temporary admission where leave was subsequently granted, by analogy to Paragraph 276A; or only on the grant of leave. The Court had decided the former. The Court had not considered arguments or issues that arose in this appeal, namely someone who had been born in the UK, and who had a positive right to register as a British citizen after 10 years, subject to certain conditions, pursuant to Section 1(4) of the British Nationality Act 1981. The case of Tirabi added nothing further to SC (Jamaica). As a consequence, the Claimant’s immigration status was not precarious and he had a legitimate expectation of continuing presence. Contrary to Mr Skinner’s argument that he could not have applied for British citizenship and then gone on to live more than half his life in the UK by the time of the index offence, the Claimant could have applied for leave to remain years before, had those with parental responsibility for the Claimant done so.
46. In terms of materiality, any error of law was immaterial. If the two provisions of Sections 117B and 117C created a limbo where an individual was neither lawfully resident in the UK nor unlawfully present, that would have made no difference to the outcome of the balancing exercise. In Akinyemi, the facts were clear that the appellant was not in the UK unlawfully from 2002 to 2020 when he was convicted of the first index offence. The facts of this case were virtually identical to those in Akinyemi.
47. Moreover, the Judge had found that there were “very compelling circumstances” over and above Exceptions 1 and 2 (Sections 117C(4) and 117(5) for the reasons already outlined. Those facts reduced the public interest in deportation, and the Judge’s analysis was consistent with Hesham Ali v SSHD [2016] UKSC 60 (particularly at §26).
48. In terms of the materiality of any error, the question was not whether it was a foregone conclusion that any rationally directed Judge would reach the same conclusion, but what would this Judge have concluded but for falling into a specific error and whether they would have reached the same decision.
Article 3 ECHR
49. The Claimant asserted that the Judge’s conclusions were either perverse, inadequately reasoned or based on a misdirection of law, for the reasons already set out.
Discussion and Conclusions
50. We begin from the position, accepted by both parties, that there is no binding case law about what “lawfully resident” in Section 117C(4) of the 2002 Act means. It might have been thought, on a reading of the decisions in Akinyemi No. 1 and Akinyemi No. 2 that they considered and resolved the question, particularly as the facts in those cases and the Claimant’s have relevant facts which are identical, namely birth in the UK without a grant of leave to enter or remain, or temporary admission. However, nowhere in Akinyemi No. 1 did the Court consider and apply Section 117C(4). Instead, it considered the proportionality assessment in Section 117B(4). At §40, Underhill LJ highlighted the difficulty in trying to understand the meaning of the language in following decisions on “cognate” language (i.e. derived from a common root) in different legislation, with a different purpose. Context, as his Lordship pointed out, was key. He also noted that “unlawful” was not necessarily the same thing as not being “lawful,” (§41), and went on to consider the purpose of Section 117B(4) in the context of legitimate expectations of remaining in the UK, relevant to the weight to be placed on private life. The clear link was with weight. That was emphasised again at §49, when considering proportionality – the weight to be given to lifelong presence was of “central importance.”
51. Having remitted the appeal to be considered again, the new appeal decision came once again before the Court of Appeal in Akinyemi No. 2. The Court had regarded as an error the introduction, in an analysis of “very compelling circumstances”, as a significant factor, public concern about a foreign criminal’s “facility” to “preclude” deportation (§29(b)). Once again, as the Court made clear, this was a factor in “the balance” (§39). The Court then went on to state that:
“40 In support of that general proposition, it is necessary to go back to the facts of this case and this court’s reasoning in the first appeal. First, one has to be careful to identify as a relevant fact that the appellant was in the UK lawfully for the whole of his life. It was a feature of the first appeal to this court that the UT had wrongly factored into the balance that his residence was unlawful or at least that it had the character of the absence of any lawful leave (see Akinyemi v Secretary of State for the Home Department [2017] 1WLR 3118, paras 30 and 31). The conclusion of this court was unequivocal: subject to the deportation provisions of the 1971 Act, the appellant was irremovable because he was in breach of no legal obligation by being here (see Underhill LJ at para 35).”
52. The Court then went on to analyse the flexible or moveable weight of the public interest, and regarded the Upper Tribunal’s assessment of proportionality as flawed, including as it did in relation to public concern (§§52 to 53). With due deference to the Court of Appeal, what the Court did not do was to explain its reasoning that Mr Akinyemi was “lawfully in the UK” for the whole of his life. No where in Akinyemi No.1 have we discerned a finding to that effect. It may have been conceded as an issue between the two Court of Appeal cases, but we do not speculate further. Suffice it to say, we accept Mr Skinner’s submission that the Court of Appeal did not appear to have before it submissions on the issue, nor do we regard the passage we have cited, or the fact of Mr Akinyemi having been born in the UK and lived here for the whole of his life, as authority for it being axiomatic that his residence was lawful. Instead, what both cases reaffirm is the danger of considering or construing words by reference to other legislation or sources; and the importance of context and function.
53. With regard to the danger of considering words from other legislation, we reject the Secretary of State’s submission that R (ST) (Eritrea) assists us. The context of the Court’s statement at §32 that the phrase “lawfully” means a “right,” not merely being “tolerated”, was in construing a sovereign state’s power to admit or exclude people, consistent with the “travaux préparatoires” or the records of negotiations leading to the Refugee Convention. That is a very different context to the framework of ‘weights’ and ‘short cuts’ in Sections 117B and C of the 2002 Act.
54. Returning to the context and function, on the one hand, we accept Ms Kiai’s submission that the definition of “lawfully resident” must form part of a coherent structure within Sections 117A to 117C. After all, Section 117A(2) mandates consideration of both Sections 117B and C for foreign criminals. On the other hand, the provisions work in different ways. Sections 117B(2) to (5) unarguably direct a Court or Tribunal to weight. In contrast, Section 117B(6) is unquestionably a short cut, which may provide a more generous approach to parents with a genuine and subsisting relationship with a British child (see §53 of SR (subsisting parental relationship – s117B(6)) Pakistan [2018] UKUT 00334 (IAC). As Underhill LJ noted in the Court of Appeal’s decision in HA (Iraq) v SSHD [2020] EWCA Civ 1176:
“29. Turning specifically to the case of foreign criminals, the effect of section 117C can be summarised as follows:
(A) In the cases covered by the two Exceptions in sub-sections (4)-(5), which apply only to medium offenders, the public interest question is answered in favour of the foreign criminal, without the need for a full proportionality assessment. Parliament has pre-determined that in the circumstances there specified the public interest in the deportation of medium offenders does not outweigh the article 8 interests of the foreign criminal or his family: they are, given, so to speak, a short cut. The consideration of whether those Exceptions apply is a self-contained exercise governed by their particular terms.
(B) In cases where the two Exceptions do not apply – that is, in the case of a serious offender or in the case of a medium offender who cannot satisfy their requirements – a full proportionality assessment is required, weighing the interference with the article 8 rights of the potential deportee and his family against the public interest in his deportation. In conducting that assessment the decision-maker is required by section 117C (6) (and paragraph 398 of the Rules) to proceed on the basis that "the public interest requires deportation unless there are very compelling circumstances over and above those described in Exceptions 1 and 2".
30. Logically it follows that the correct decision-making structure in the case of a medium offender is, as the Court said in NA (Pakistan), at para. 36:
"In relation to a medium offender, first see whether he falls within Exception 1 or Exception 2. If he does, then the Article 8 claim succeeds. If he does not, then the next stage is to consider whether there are 'sufficiently compelling circumstances, over and above those described in Exceptions 1 and 2'. If there are, then the Article 8 claim succeeds. If there are not, then the Article 8 claim fails."
It will be convenient to refer to the second stage as the exercise "required by section 117C (6)" or similar phrases, but that is arguably slightly misleading. The second stage is necessary not because of section 117C (6) but because the effect of article 8 is that a proportionality assessment is required in every case (at least where the issue is raised): what section 117C (6) does is to prescribe the weight that has to be given to the public interest in deportation when carrying out that assessment (in a case where neither Exception applies).”
55. This passage was cited with approval by the Supreme Court in HA (Iraq), RA (Iraq) and AA (Nigeria) v SSHD (Appellant) [2022] UKSC 22. Two points follow from this. First, while they are part of a wider context of Sections 117A to 117C, Sections 117B(4) and 117C(4) fulfil different functions, in different ways. Were “unlawfully” in Section 117B(4) to be interpreted expansively, i.e. as meaning those without leave to enter or remain, those innocent of any crime, who had been born and lived the entirety of their lives in the UK, who were not removable and were not in breach of any legal obligation, would have little weight attached to their private life. As the Court of Appeal stated at §42 of Akinyemi (No. 1):
“… it seems to me that a construction which focuses on removability rather than a positive right to remain is more in keeping with the statutory context. Section 117B (4) is concerned with the establishment of a "private life" over a period of presence in the UK. The reason why it is reasonable to place little weight on private life established while a person's presence in the country has been "unlawful" is surely that he or she has no legitimate expectation of their continuing presence in the country and may be removed at any time. It is similar, but a fortiori, to that underlying section 117B (5), relating to private life developed while a person's immigration status is "precarious". It is hard to see how that policy can apply to the situation of a person born in the UK to parents who were lawfully present and who in due course became settled, who is legally irremovable and who is entitled to acquire British nationality: such a person's expectation that they will continue to live indefinitely in the UK is entirely legitimate.
56. In contrast, the context of those liable to deportation and defined as “foreign criminals” is different. First, those liable to deportation cannot rely on the short cut in Section 117B(6). Second, the short cut in Section 117C(4) is in a context of a starting point different from a legitimate expectation of an entitlement to remain in the UK. Section 5(1) of the 1971 Act provides that a deportation order against a person “shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force.”
57. As Underhill LJ noted in HA (Iraq), there is indeed a “Huang” proportionality floor, in the sense that if a foreign criminal cannot meet one of the two statutory short cuts in Section 117C(4) or (5), they may yet rely on the wider proportionality assessment. The potential benefit to a foreign criminal of either short cut is further confirmed because if they do not meet the test for a short cut, the very compelling circumstances test in Section 117C(6) is a higher threshold, as the Court of Appeal confirmed in Yalcin v SSHD [2024] EWCA Civ 74, in particular, §62. In contrast to the difficulty of understanding the policy sense of giving little weight to private life for those in Mr Akinyemi’s situation in the wider proportionality assessment, (Section 117B(4)), the context is different for someone relying on a beneficial short cut in Section 117C. That is not to say that presence, without being lawfully resident in the UK, is irrelevant for the purposes of Section 117C. It is clearly potentially relevant to Section 117C(6), i.e. very compelling circumstances, as part of a the wider “Huang floor”. The fact that those who cared for the Claimant could have applied for his registration, but did not, is also relevant to a wider proportionality assessment. That is different, however, from the short cut where no wider proportionality assessment is needed (Section 117B(4)).
58. Having considered the context and different ways in which Sections 117B(4) and 117C(4) operate, nothing in the authorities relied on by the Claimant counter the interpretation of Section 117C(4), as being to provide a short cut to those who, before the deportation order was issued, had a positive legal right to reside in the UK, as opposed to being irremovable, or having the right to apply for registration as a British citizen.
59. We accept that the logic of this conclusion is that Sections 117A to C potentially apply to three groups: those present in the UK unlawfully; those who are lawfully resident, and the third group who fall into neither category. However, we do not accept Ms Kiai’s submission that this renders the groups unclear, or that it leads to results that context and any policy intention do not permit.
60. As Mr Skinner points out, the “Huang” floor remains, in the sense that life-long tolerated presence in the UK remains relevant as a potentially very compelling circumstance in Section 117C(6). This is so, noting Underhill LJ’s concern at §43 of Akinyemi No. 1 that the ECHR might “jib[e]” at regarding him as anything other than settled; and the line of cases culminating in Maslov v Austria [2009] INLR 47, namely the very serious reasons needed to justify expulsion of someone who had spent all or a major part of their childhood in the host country, about which the Court had submissions in Akinyemi No. 1.
61. Moreover, contrary to Ms Kiai’s submission that such an interpretation leads to a lack of coherence, the construction of law which provides for residence as meaning having a lawful, positive right to reside, fits into a clear structure, and avoids the strained construction of equating “lawfully” with “not unlawful,” which as we have noted, Underhill LJ recognised did not necessarily follow.
62. We are fortified in this interpretation, as none of the authorities relied on by the Claimant undermine it. This Tribunal stated in MS (British citizenship) at §120 that Sections 117B(4) and 117C(4) pose the same question. However, it is also clear from the Tribunal’s analysis at §§130 to 134 that they yield answers by a different logic – someone who was unlawfully present for the purposes of Section 117B(4) could not be lawfully resident. As stated at §134:
“134. A fortiori, when one turns to section 117C(4)(a) and the concept of being “lawfully resident in the United Kingdom”, a person who has no basis under the 2016 Regulations/EU law to be in the United Kingdom, or any other legal entitlement to be here, cannot be described as “lawfully resident”. The fact that the respondent may not have taken action under the EEA Regulations to have the person removed cannot be said to render that person’s residence lawful. Here too, there is no coherent distinction to be drawn between EU nationals and others. The fact that the respondent may not have taken enforcement action against non-EEA nationals present in the United Kingdom without leave has never, to our knowledge, been advanced as an argument for describing them as being lawfully present. Manifestly, they are not.”
63. The Claimant has sought to distinguish the decisions of SC (Jamaica) and Tirabi on their facts, on the basis that the appellants had not been born in the UK nor had they spent their entire lives in the UK. Reminding ourselves of the danger of considering definitions from other sources (Paragraph 276A of the Immigration Rules) neither authority is necessary for the construction of “lawfully resident” in Section 117C(4), but equally, neither are inconsistent with our construction.
64. We therefore conclude that the interpretation of the meaning of “lawfully resident” for the purposes of Section 117C(4) is to be considered in its context, as a statutory short cut. We accept Mr Skinner’s submission that it has a clear meaning. That clear meaning indicates lawful residence. The factors of life-long presence since birth, and a lack of any blame in not applying for registration as a British citizen remain relevant, but they are relevant to “very compelling circumstances” for the purposes of Section 117C(6).
Materiality of the error of law in relation to Article 8
65. Without hesitation, we conclude that the Judge’s error was material. This is because in the analysis of very compelling circumstances, on which the Claimant needed to rely by virtue of the length of his prison sentence, the Judge had referred repeatedly to the Claimant’s lawful residence. Such a wider proportionality assessment will be intensely fact-specific and nuanced. We cannot be satisfied that the Tribunal would necessarily have reached the same decision. In the circumstances, whilst we do not disturb any of the findings, which have not been the subject of any appeal or challenge, it is appropriate that the Judge’s conclusions (but not the findings) are set aside and will need to be revisited.
Article 3
66. We accept first Mr Skinner’s proposition that the Judge’s conclusion was not perverse, in the sense that it was open to the Judge to conclude there was not sufficient evidence to conclude that a deterioration in the Claimant’s health would be rapid. However, on the challenge as to the adequacy of reasons, we do not accept Mr Skinner’s submission that the Claimant’s challenge amounts to a requirement to give “reasons for reasons”. Instead, the reader is left wondering about the gap in the evidence. The reasons on this narrow but important aspect have the quality of a bare statement. We are very conscious of the authority of Volpi v Volpi and of island hopping between passages of the judgment but we are nevertheless satisfied that the reasons are not adequate. The expertise of the expert is not challenged, and their reports confirm the seriousness of the Claimant’s medical issues and the possible irreversibility of a decline. Where the gap lies on the rapidity of that decline is unclear. The Judge’s conclusions on Article 3 are not safe and cannot stand.
Notice of Decision
67. The Judge erred in concluding that the Claimant was lawfully resident for the purposes of Section 117C(4)(a) of the Nationality, Immigration and Asylum Act 2002. Whilst her findings about the Claimant’s circumstances in relation to Article 8 are undisturbed, the decision on whether the Secretary of State’s refusal of his human rights claim was disproportionate needs to be reconsidered afresh.
68. We also accept that the Judge’s conclusion in relation to Article 3 ECHR in relation to the rapidity of the deterioration in the Claimant’s health is not adequately explained. The Judge’s conclusions on the seriousness and the irreversibility of that decline are undisturbed.
Disposal of the Appeal
69. We canvassed with the representatives what we should do in the event that we were to find there to be an error. Both were satisfied in relation to Article 8 that because there was no substantial dispute on the facts, it was appropriate, in light of the Senior President’s Practice Statement, in particular paragraph 7.2(a) and (b) that we should retain re-making in the Upper Tribunal. However, where there was less certainty was if we were to find that there had been an error in relation to Article 3 such that there needs to be additional fact-finding and in particular a desire by the Claimant to adduce additional evidence.
70. We are satisfied that neither exception is met and that we should retain re-making in the Upper Tribunal. In relation to Article 8, the parties are in agreement on all of the facts. The proportionality assessment can be based on the detailed and clearly explained findings of the Judge and merely require an assessment of the application of those facts to the law as we have decided it.
71. We pause to reflect in relation to Article 3. The effect of the error was not such as to deprive the Claimant of a fair hearing. The scope and nature of the fact-finding is extremely limited. There is no dispute as to the expertise of the expert or the content of their reports. There is no dispute as to the seriousness of the Claimant’s health issues or the irreversibility if, for example, he suffered from psychosis. The question is the rapidity of his decline if he were removed. Given the narrowness of that issue we are satisfied that it is appropriate that we retain re-making in the Upper Tribunal.
Directions
72. The resumed hearing to consider re-making the Claimant’s appeal will be heard at Field House. It remains open to the Claimant to adduce any further additional evidence if he so wishes but equally it is open to him and this Tribunal to consider the bundle that was before the First-tier Tribunal. The matter will be relisted on the first available date without the need for an interpreter, at Field House.


J Keith

Judge of the Upper Tribunal
Immigration and Asylum Chamber

16th July 2025