Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000611

First-tier Tribunal No: PA/62598/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 12 August 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE CONNAL
UPPER TRIBUNAL JUDGE BRUCE

Between

SB
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Katani, Katani & Co. Solicitors
For the Respondent: Mr Mullen, Senior Home Office Presenting Officer

Heard at Edinburgh on 9 April 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and any member of her family are 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 and/or any member of her family. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
General background
1. The appellant has been granted permission to appeal the decision of the First-tier Tribunal dated 11 December 2024 (the Decision) in which, following a hearing which took place on 29 November 2024, the First-Tier Tribunal Judge (the Judge) dismissed the appellant’s appeal against the respondent’s refusal of her application for asylum.
2. Permission to appeal was granted on limited grounds by the First-tier Tribunal on 31 January 2025.
Anonymity Direction
3. An anonymity direction was previously made in the First-tier Tribunal. We consider it appropriate for that direction to be continued. The appellant, who has two young children, has made a claim for protection, is a victim of childhood abuse, and has mental health conditions which are the focus of this decision.
Brief factual background
4. The appellant is a national of India. She was born in Kotdwara in the state of Uttarakhand, India. She is of the Brahmin caste, and was born and raised a Hindu (the appellant is said to have converted to Islam in 2020). In December 2009, the appellant married a Muslim man, BA, who is also an Indian national. She says that she did so unbeknownst to, and against the wishes of, her immediate family.
5. The appellant first arrived in the United Kingdom as a student in September 2010, with BA joining her in February 2011. The couple lived in the UK until March 2013 when they returned to India. In 2014, the appellant and BA had their first child together, a son, who was born in India.
6. The appellant most recently entered the UK on 27 February 2019 in order to begin her doctoral studies. BA and the couple’s son joined the appellant in the UK in February 2020. On 10 September 2020, the appellant applied for asylum, on the basis that she would be at risk of persecution on the ground of religion if removed to India. In 2021, the appellant and BA had a second child, another son, who was born in the UK. BA and the couple’s two sons are dependents on the appellant’s claim.
7. The claimed background to the appellant’s asylum application is set out in detail in the Decision. However, among other matters, it includes that: the appellant was abused by her family as a child; her father is a devout Brahmin, a retired government servant, and the owner of agricultural ancestral lands; the appellant’s father and his family are influential and well connected with local communities and government officials; the appellant and BA had married secretly after her family had refused their permission; the marriage, and the birth of their first child, had only been discovered by the appellant’s family some 2-3 months before the appellant’s screening interview in September 2020, when her family had seen some online photographs; as a result, the appellant had received a series of threatening emails purporting to come from her brother; and the appellant’s brother and father had also made a report to the Indian police in this regard.
8. The reasons for the respondent’s refusal of the appellant’s application are set out in a letter dated 20 November 2023 (the RFRL). The respondent accepted the appellant’s identity and nationality, but found the appellant not to be credible. The respondent did not accept the material facts of the appellant’s claim, including that the appellant had faced adverse attention from her family because she had married BA. Alternatively, if the material facts of the appellant’s claim were accepted, the respondent found that the appellant would be able to avail herself of sufficient protection and could also internally relocate within India. In addition, the respondent found that removing the appellant from the UK would not be contrary to the rights of the appellant and her family under Article 8 of the European Convention on Human Rights (the ECHR) and nor did the appellant qualify for discretionary leave.
9. The respondent subsequently reviewed the matter (in the undated Review) but maintained her decision.
The Decision
10. At the outset of the Decision, the Judge set out the background to the appellant’s claim and recorded the issues to be determined as taken from the documents lodged by the parties (it is not in dispute that this is an accurate summary of the issues identified and pursued by the appellant at the First-tier Tribunal hearing):
Issues to be Determined
15. The respondent identifies the following schedule of issues taken from Mr Khan’s skeleton argument:
(i) Whether the appellant’s claim is credible;
(ii) Whether the appellant has a genuine fear according to a Convention reason;
(iii) Whether the appellant is likely to be exposed to inhuman or degrading treatment contrary to articles 2 and 3 of the Convention for the Protection of Human Rights;
(iv) Whether the respondent has erred in law in assessing the issue of sufficiency of protection;
(v) Whether it would be unduly harsh for the appellant to relocate internally within her country of nationality.
11. Having proceeded to set out the applicable legal framework, the Judge then addressed an issue which arose in the hearing regarding the appellant’s emotional state which, in light of its relevance for the matters with which we are now concerned, we include in full below:
18. The hearing was a difficult one because of the appellant’s emotional state that caused her to break down early on in the proceedings. Mr Khan did not alert me at the outset of the hearing to any particular vulnerability in his client but did interject early in the cross-examination to draw my attention to evidence from a consultant psychologist that she had been diagnosed with Post Traumatic Stress Syndrome. I adjourned the hearing for about 20 minutes to allow her to rest and regain her composure. After that break she was able to respond rationally and coherently to Mr McCallum’s further cross-examination. Throughout the closing submissions she sat in an apparently dejected state.
12. The Judge then set out his findings at [19] onwards. At [23] to [46], the Judge found that the appellant was not a witness of truth in regard to her core claim but, alternatively, that there was a sufficiency of protection and an internal relocation option available to her.
13. The Judge then went on to address Article 3 health grounds and Article 8 family and private life grounds on the basis that, while not pursued by the appellant, these had been addressed in the presenting officer’s submissions. In relation to Article 8 of the ECHR, the Judge found that the appellant could not meet the requirements of the immigration rules, and that the factors raised by the appellant were outweighed by the public interest. In relation to Article 3 of the ECHR, as this is the focus of this appeal we set out the Judge’s findings in full below:
47. Article 3 ECHR is not raised in regard to the appellant’s health condition, neither is Article 8 ECHR pleaded in the grounds of appeal or mentioned in the skeleton argument. Mr McCallum nonetheless made submissions on both issues in line with the terms of the RFRL. In fairness to Mr Khan, I did not seek confirmation from him as to whether these articles were being relied upon or not and it is for completeness I address them. The fact that I do does not mean Mr Khan ought to have pursued them on behalf of the appellant.
48. I have a report from Mary Keenan Ross, consultant clinical psychologist dated 12 June 2024. In a very detailed assessment of her psychological history, she notes a number of issues, including domestic and sexual abuse as a child, post-natal depression and a multiplicity of consequences such as panic attacks and hallucinations connected with her grounds for claiming asylum. She is taking Amlodipine for her high blood pressure and Metformin 5mgs and Perindopril 2mgs. She has also been diagnosed with type II Diabetes and is receiving medication for this.
49. Ms Ross in her report relates a previous diagnosis of complex PTSD with recurrent depressive episodes. She says the present psychological diagnosis of PTSD is attributable to childhood trauma and the reported death threats from her family in July 2020. She also says that she is at very high risk of completed suicide in circumstances in which a decision is made to return her to India.
50. Her entire account of past experiences has been related by her and accepted by Ms Ross. There are other factors in her evidence that it seems to me may be at least relevant e.g. the uncertainty of her position having launched her asylum claim, her tenuous economic circumstances, her falling pregnant when she was embarked on a PHD course, past difficulties in securing employment in India such that she had to move to Thailand, her post-natal depression, and the strain of coping with her physical illnesses. And there is of course her claimed abuse as a child.
51. The respondent deals with the issue of her medical condition under the heading Discretionary Leave. Her mental complaints are accurately described and the CPIN India: Medical and healthcare provision, Version 2.0. April 2023 is extensively quoted in support of the respondent’s contention that there is adequate healthcare provision in India. The respondent says she has not provided a reasonable explanation as to why she would not be able to this.
52. The RFRL refers to the high threshold that must be reached as set out in AM Zimbabwe [2020] UKSC 177 and the similar article 3 ECHR test applicable to mental health cases set out in Bensaid v The United Kingdom.
53. THTN v Secretary of State for the Home Department [2023] EWCA Civ 1222 confirms that an appellant “must provide sufficient evidence to cast doubt on the availability or accessibility of treatment in the receiving state” before there is any evidential obligation on the respondent to rebut the appellant’s prima facie case. If the appellant fails to establish this prima facie case, then the appeal falls to be dismissed on this ground without more.
54. A risk of suicide is alluded to by Ms Ross. The issue was considered in MY (suicide risk after Paposhvili) [2022] UKUT 0023.
55. In the event that the claimed risk of suicide is credible, there are six key points to consider (MY at [16]-[18]):
(i) Determine the severity of the treatment (i.e. the experience) which A will suffer if removed.
(ii) There must be a causal link between the (threatened) act of removal or expulsion, and the inhuman treatment relied upon.
(iii) The Art 3 threshold is a particularly high one, and even higher when the inhuman treatment is resulting from naturally occurring illness, rather that the direct or indirect treatment of the state.
(iv) An Art 3 claim can in principle succeed in a suicide case. The risk of suicide must not stem from a voluntary act, rather from impulses which A is not able to control because of their mental state (R (Carlos) [2021] EWHC 986 (Admin) at [159] quoted in MY at [19].
(v) Can A establish that there is a genuine fear, even if it is without objective foundation, such as to create a risk of suicide in the event of enforced return?
(vi) Will the removing and/or the receiving state have effective mechanisms to reduce the risk of suicide? If so, that will weigh against there being a violation of Art 3.
56. The medical evidence does not permit me to make a finding on the issue. Specialist psychiatric evidence would be necessary with the specialist carefully instructed on the relevant legal criteria. In the final analysis an article 3 health claim has not been raised in this appeal.
The appeal to the Upper Tribunal
14. Permission to appeal to the Upper Tribunal was initially sought on six grounds (the PTA Application). The first five grounds related to the Judge’s findings and reasons regarding the appellant’s protection appeal, including her credibility and the evidence she relied on in this regard. The sixth ground focused on the appellant’s health:
7. The FTT erred in law because it concluded that the medical evidence did not permit her to make a finding on whether the appellant might commit suicide (paragraph 56). There was sufficient evidence of a suicidal ideation that the appellant might act upon. There was evidence from Dr Ross whose report (HB 100 to 134) observes her suicidal tendencies at several stages including at HB 119 where she describes the appellant as having such tendencies approx two/three times a month; also at page 127 where she states that “…the most considerably described risk s [sic] a past history of suicide attempts…”. There was also evidence from a Consultant Psychiatrist (at Pages 104 and 105 of the Respondent’s Hearing Bundle) who states that the appellant is prone to “…acute suicidality…”. Both reports (as well as the appellant’s own evidence – see above) were more than sufficient to meet the test in the MY case referred to by the FTT at paragraph 55. To conclude that they were not and further evidence was necessary was an error in law. (emphasis original; the reference to “see above” appears to be to the reference within the preceding fifth ground to “previous attempts by the appellant to commit suicide because of how her family were treating her (see paragraphs 34 to 43 in her statement (HB 41-48)”)
15. We pause to note here that nothing is said in the sixth ground regarding the fact that such a claim was not – as is agreed – pursued by the appellant before the First-tier Tribunal nor why, in those circumstances, any failure in this regard amounted to an error of law.
16. The First-tier Tribunal subsequently granted permission to appeal on this sixth ground only, noting:
7. It is argued that the IJ was wrong to conclude that the medical evidence presented did not permit her to make findings on whether the Appellant was a suicide risk in line with MY (suicide risk after Paposhvilli [2022] UKUT 00023. The Appellant provided a detailed psychological report at page 101 of the appeal bundle. The report makes repeated references to suicide attempts and risk. The determination fails to explain why this was not sufficient evidence to undertake fact finding for the purpose of Article 3 ECHR. As such, this is an arguable error of law.
The error of law hearing
17. The matter comes before the Upper Tribunal to determine whether the Decision contains an error of law and, if it is so concluded, to either re-make the decision or remit the appeal to the First-tier Tribunal to do so.
18. The hearing was attended by representatives for both parties as recorded above. Mr Katani confirmed that he had taken over conduct of this appeal from the Appellant’s previous solicitors after the PTA Application had been filed, and a break was taken during the hearing to enable Mr Katani to lodge the relevant mandate.
19. At the outset of the hearing, Mr Katani confirmed that there had been no renewal of the application for permission to appeal on the excluded grounds.
20. In relation to documentation, we had access to a bundle of 564 pages, compiled by the Tribunal, which included, among other documents, the RFRL, the Decision, the PTA Application, the grant of permission to appeal, and the bundles relied on by the parties before the First-tier Tribunal. While both representatives appeared to have a different bundle of just over 400 pages, following discussion with the representatives we were satisfied we could proceed.
21. In relation to the ground of appeal on which permission was granted, Mr Katani’s submissions included, among other matters:
a. Reliance was placed on the PTA Application, and reference was made to that stated by the First-tier Tribunal in granting permission to appeal. Mr Katani was not in a position to confirm whether an Article 3 health grounds claim had been advanced by the appellant at the time of her initial application for asylum (no copy of the same was before us). It was, however, accepted that an Article 3 health grounds claim had not been pleaded in the grounds of appeal nor mentioned in the appellant’s appeal skeleton argument (the ASA).
b. In relation to [56] of the Decision, if the Judge’s view was that the medical evidence did not permit him to make the required findings, then he ought to have raised this with the parties as a preliminary matter or during submissions, given that the Judge recorded, at [47] of the Decision, that the presenting officer had made submissions on the issue in line with the RFRL.
c. In terms of the evidence on this point, it had not been limited to the psychology report from Ms Ross; there had also been evidence from the appellant’s GP records, and other documentary evidence from psychiatrists and psychologists. Ms Ross was qualified to opine that the appellant suffered from PTSD and Major Depressive Disorder, and she had recorded the appellant’s suicidal ideation which was a finding that had been made previously. The medical evidence was that the appellant did entertain suicidal ideation and that the risk of suicide increased with the prospect of removal, and the appellant’s mental health would deteriorate on point of removal. There had been no countervailing medical evidence before the Judge. It was simply not clear why the Judge felt he was not able to make any findings on Article 3. Further submissions could be made regarding the medical evidence if it were found that the Judge had erred in failing to undertake any proper assessment of it and, in this regard, the evidence supported that the risk of suicide existed in the UK.
d. In response to the Respondent’s reliance on Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC) (Lata), the Judge had acknowledged that an Article 3 health grounds claim had not been raised, but had noted that the presenting officer had made submissions on it and had proceeded to state, “In fairness to Mr Khan, I did not seek confirmation from him as to whether these articles were being relied upon or not and it is for completeness I address them”. In circumstances where the presenting officer had made such submissions, it was not clear why the Judge had not sought to clarify with the appellant’s then representative if he was seeking to rely on Article 3. The Judge was required to look at the matter if the presenting officer made submissions on it or, alternatively, was required at least to raise it with the parties either as a preliminary matter or in submissions. Whether the appellant’s representative had in fact relied on it was a neutral point.
e. In response to the Respondent’s position regarding the psychology report from Ms Ross, Ms Ross was clear that the complex post-traumatic stress disorder (c-PTSD) could be attributed to what had happened to the appellant when she was a child but was also related to the threats received by the appellant from her family in July 2020.
f. The medical evidence before the Tribunal was such to support an arguable breach of the UK’s obligations in light of the findings regarding completed suicide.
22. On behalf of the respondent, Mr Mullen’s submissions included, among other matters:
a. The appellant was in difficulty with regard to [4] and [7] of Lata. It was a misconception that it was sufficient to be silent on an issue. The Judge was not required to trawl through the papers, but rather was required to deal with the issues identified by the parties. An Article 3 health grounds claim was not going to be an obvious one; the Appellant’s mental health conditions were linked to the appellant’s childhood trauma and not her claim for asylum.
b. Although the presenting officer had addressed the matter in submissions, this was because the material was there and he had undertaken a “belt and braces” approach; this could not be a substitute for the appellant raising it in her grounds. A Robinson obvious point had to be uncontroversial, in the sense that it could be objectively demonstrated, and there was agreement between the parties on it.
c. In circumstances where the appellant had not sought to prove an Article 3 health claim, it was hard to say that the presenting officer making submissions that the appellant had not proved it, and the Judge finding as he had, should lead to a positive finding in favour of the appellant.
d. Alternatively, and if the submissions made regarding Lata were not accepted, then the Judge had reached conclusions open to him on the evidence. A finding could be inferred at [56] of the Decision that the evidence was insufficient to support a breach of Article 3 but that the claim had not been raised in any event.
23. Both Mr Katani and Mr Mullen submitted that, if we found the error of law to be made out, the matter should be retained by the Upper Tribunal for rehearing.
Discussion
Robinson obvious errors
24. The key issue in this appeal is whether or not an Article 3 health grounds claim was Robinson obvious, and so required to be considered and determined by the Judge, despite not having been identified and pursued by the appellant. We therefore start by considering the requirements for a matter to be Robinson obvious.
25. In R v SSHD, ex parte Robinson [1997] 3 W.L.R. 1162, the Court of Appeal was concerned with an application for judicial review of a refusal by the Immigration Appeal Tribunal of permission to appeal against a decision of a special adjudicator. Handing down the judgment of the court, Lord Woolf M.R., held (our emphasis):
It follows from what we have said that it is the duty of the appellate authorities to apply their knowledge of Convention jurisprudence to the facts as established by them when they determine whether it would be a breach of the Convention to refuse an asylum-seeker leave to enter as a refugee, and that they are not limited in their consideration of the facts by the arguments actually advanced by the asylum-seeker or his representative….
It is now, however, necessary for us to identify the circumstances in which it might be appropriate for the tribunal to grant leave to appeal on the basis of an argument not advanced before the special adjudicator, or for a High Court judge to grant leave to apply for judicial review of a refusal of leave by the tribunal in relation to a point not taken in the notice of appeal to the tribunal.
Because the rules place an onus on the asylum-seeker to state his grounds of appeal, we consider that it would be wrong to say that mere arguability should be the criterion to be applied for the grant of leave in such circumstances. A higher hurdle is required. The appellate authorities should of course focus primarily on the arguments adduced before them, whether these are to be found in the oral argument before the special adjudicator or, so far as the tribunal is concerned, in the written grounds of appeal on which leave to appeal is sought. They are not required to engage in a search for new points. If there is readily discernible an obvious point of Convention law which favours the applicant although he has not taken it, then the special adjudicator should apply it in his favour, but he should feel under no obligation to prolong the hearing by asking the parties for submissions on points which they have not taken but which could be properly categorised as merely "arguable" as opposed to "obvious." Similarly, if when the tribunal reads the special adjudicator's decision there is an obvious point of Convention law favourable to the asylum-seeker which does not appear in the decision, it should grant leave to appeal. If it does not do so, there will be a danger that this country will be in breach of its obligations under the Convention. When we refer to an obvious point we mean a point which has a strong prospect of success if it is argued. Nothing less will do. It follows that leave to apply for judicial review of a refusal by the tribunal to grant leave to appeal should be granted if the judge is of the opinion that it is properly arguable that a point not raised in the grounds of appeal to the tribunal had a strong prospect of success if leave to appeal were to be granted. (at pages 945E-946D).
26. It was not in dispute before us that the Robinson obvious approach also extends to matters involving the UK’s obligations under the ECHR. In this regard, Lord Justice Maurice Kay, delivering the judgment of the court in AM (Serbia) and others v SSHD [2007] EWCA Civ 16, held (our emphasis):
29. … The significance of Robinson is in its demonstration of the role of the courts and the Tribunal in ensuring that the United Kingdom does not fall foul of the Refugee Convention, even where an obvious point of Convention law has been missed by the practitioners. It surely applies on the same basis to the ECHR, where the argument is even stronger because, by section 6 of the Human Rights Act 1998, it is unlawful for a public authority to act in a way which is incompatible with an ECHR right and courts and the Tribunal are “public authorities” for this purpose: section 6(3)(a)….
27. Similarly, in his decision in the petition of Muhammad Mohsan Javaid for Judicial Review 2021 CSOH 22 (Javaid), Lord Harrower held (our emphasis):
[16] Secondly, and in the alternative, counsel for the petitioner argued, under reference to R v Secretary of State for the Home Department, ex parte Robinson, supra, that the UT had erroneously failed to identify readily discernible and obvious points of Convention jurisprudence in favour of the petitioner. As is well known, ex parte Robinson involved consideration of the 1951 Geneva Convention and the 1967 Protocol Relating to the Status of Refugees. It held that, since the immigration authorities were obliged to ensure that the applicant's removal would not contravene the United Kingdom's obligations under the Convention and Protocol, where there was a readily discernible and obvious point in his favour, which had not been taken on his behalf, they, and the High Court exercising its supervisory jurisdiction by way of judicial review, should nevertheless apply it (at p945E-F). Analogous considerations apply in order to ensure that the United Kingdom does not contravene its obligations under the ECHR.
28. For a matter to be Robinson obvious, it must therefore be both (i) readily discernible and (ii) obvious, in the sense of having a strong prospect of success.
The FTT procedural requirements
29. The above does not, of course, detract from the obligation on the parties, particularly where represented, to identify the principal controversial issues which require to be determined by the First-tier Tribunal. The Upper Tribunal has emphasised that the reformed appeal procedures are specifically designed to enable the parties to do so, with the core nature of this requirement being emphasised in Lata (see also TC (PS compliance – “issues-based” reasoning) Zimbabwe [2023] UKUT 00164, in particular at [27]-[34] and [39]). As set out in the headnote of Lata:
3. The reformed appeal procedures are specifically designed to ensure that the parties identify the issues, and they are comprehensively addressed before the First-tier Tribunal, not that proceedings before the IAC are some form of rolling reconsideration by either party of its position.
4. It is a misconception that it is sufficient for a party to be silent upon, or not make an express consideration as to, an issue for a burden to then be placed upon a judge to consider all potential issues that may favourably arise, even if not expressly relied upon. The reformed appeal procedures that now operate in the First-tier Tribunal have been established to ensure that a judge is not required to trawl though the papers to identify what issues are to be addressed. The task of a judge is to deal with the issues that the parties have identified.
…
7. Unless a point was one which was Robinson obvious, a judge's decision cannot be alleged to contain an error of law on the basis that a judge failed to take account of a point that was never raised for their consideration as an issue in an appeal. Such an approach would undermine the principles clearly laid out in the Procedure Rules.
8. A party that fails to identify an issue before the First-tier Tribunal is unlikely to have a good ground of appeal before the Upper Tribunal.
30. The Practice Direction of the Immigration and Asylum Chamber of the First-tier Tribunal, 1 November 2024 (which applied at the time of the hearing before the Judge), further provides (again, our emphasis):
1.1. The Overriding Objective of the Tribunal is that cases are dealt with fairly and justly. A thread that runs through the entirety of the appeals process in the Immigration and Asylum Chamber of the First-tier Tribunal (the “Tribunal”) is the requirement that the parties identify, articulate, agree and then focus upon the principal controversial issues, or the disputed issues, thereby adopting an issues-based approach to the appeal….
…
1.3. The disputed issues represent the parameters, or scope, of the appeal and will operate as the foundation and structure for all judicial decisions. Subject to ‘Robinson obvious’ matters and the need for extra care when litigants in person are involved in proceedings, judges should not be expected to infer issues which have not been clearly identified and articulated by the parties. The Tribunal will not tolerate a rolling consideration of issues and will not permit the issues to evolve at will for procedural advantage.
31. The position is therefore clear; subject to Robinson obvious matters, judges in the First-tier Tribunal will not fall into error of law by failing to infer or search for issues which have not been clearly identified and articulated by the parties.
Was an Article 3 health grounds claim Robinson obvious in this appeal?
32. We now turn to whether an Article 3 health grounds claim was Robinson obvious in this appeal. In doing so, we address, in turn: (i) the applicable legal framework for Article 3 health ground claims; (ii) whether such a claim was readily discernible in this case; and (iii) whether such a claim was obvious in this case, meaning it had strong prospects of success.
- The Article 3 legal framework
33. In relation to the applicable legal framework, we refer first to the guidance provided by the Upper Tribunal in AM (Art 3; health cases) Zimbabwe [2022] UKUT 00131 (IAC) (AM). In AM, the Upper Tribunal summarised the applicable legal principles at [17], including that the first step was for an appellant to establish a “prima facie” case / meet the “threshold test” (the Upper Tribunal had explained, in MY (Suicide risk after Paposhvili) [2021] UKUT 00232 (IAC) (MY), that raising a prima facie case meant a case which, in the absence of challenge, would establish infringement (at [124])). At [22]-[28] of AM, the Upper Tribunal went on to address the questions that had to be answered in relation to this initial threshold test. The headnote summarises the position in this regard:
1. In Article 3 health cases two questions in relation to the initial threshold test emerge from the recent authorities of AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 and Savran v Denmark (application no. 57467/15):
(1) Has the person (P) discharged the burden of establishing that he or she is “a seriously ill person”?
(2) Has P adduced evidence “capable of demonstrating” that “substantial grounds have been shown for believing” that as “a seriously ill person”, he or she “would face a real risk”:
[i] “on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment,
[ii] of being exposed
[a] to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering, or
[b] to a significant reduction in life expectancy”?
2. The first question is [a] relatively straightforward issue and will generally require clear and cogent medical evidence from treating physicians in the UK.
3. The second question is multi-layered. In relation to (2)[ii][a] above, it is insufficient for P to merely establish that his or her condition will worsen upon removal or that there would be serious and detrimental effects. What is required is “intense suffering”. The nature and extent of the evidence that is necessary will depend on the particular facts of the case. Generally speaking, whilst medical experts based in the UK may be able to assist in this assessment, many cases are likely to turn on the availability of and access to treatment in the receiving state. Such evidence is more likely to be found in reports by reputable organisations and/or clinicians and/or country experts with contemporary knowledge of or expertise in medical treatment and related country conditions in the receiving state. Clinicians directly involved in providing relevant treatment and services in the country of return and with knowledge of treatment options in the public and private sectors, are likely to be particularly helpful.
4. It is only after the threshold test has been met and thus Article 3 is applicable, that the returning state’s obligations summarised at [130] of Savran become of relevance – see [135] of Savran.
34. The applicability of the test confirmed by the Supreme Court in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 to mental health and risk of suicide cases was confirmed by the Upper Tribunal in MY. The Upper Tribunal in MY also confirmed that the six points set out in J v SSHD [2005] EWCA Civ 629 (J), as partially reformulated in Y (Sri Lanka) v SSHD [2009] EWCA Civ 362, remained valid, but did not impose an additional test or a burden on an appellant; rather they were guidance on how to deal with subjective fear (see in particular at [14]-[18], and [119]–[123] of MY). The overall question remained whether the test set out by the Supreme Court was met.
35. In THTN v SSHD [2023] EWCA Civ 1222 (THTN), the Court of Appeal further confirmed that the initial threshold test requires an appellant to not only provide strong evidence of the seriousness of the illness, but also sufficient evidence to cast doubt on the availability or accessibility of treatment in the receiving state:
48. …Stage one of the process requires the applicant to provide strong evidence of the seriousness of the illness including the treatment involved and the consequences of removal of treatment. Those are matters which will only be within the knowledge of the applicant. She also must provide sufficient evidence to cast doubt on the availability or accessibility of treatment in the receiving state. The SSHD (or on appeal the F-TT) will be well capable of determining whether sufficient evidence has been adduced to cast doubt on the receiving state’s medical facilities….
49. …The threshold test … clearly requires evidence from the applicant about the position in the receiving state before there is any obligation on the returning state…. (our emphasis)
– Was such a claim readily discernible?
36. In relation to whether an Article 3 health grounds claim was readily discernible in this appeal, we take into consideration that:
a. As recorded above, Mr Katani was not able to confirm whether an Article 3 health grounds claim had been raised by the appellant in her initial application for asylum.
b. However, the appellant had raised her mental health difficulties (including suicidal ideation and attempts) in her screening interview, undated witness statement, and substantive asylum interviews and, while the RFRL did not list an Article 3 health grounds claim in the summary of the appellant’s “Basis of claim”, the respondent recorded that, among other documents, medical evidence had been considered when deciding the appellant’s claim, and went on to address the appellant’s mental health, including a potential Article 3 health grounds claim, under the heading “Discretionary Leave”. The respondent’s position included: the appellant had raised that she had stress, panic disorder, depression and PTSD, and that she was taking 100mg Sertraline, 100mg Quetiapine, and Diazepam (as well as medication for high blood pressure); external sources illustrated that there was available healthcare treatment for mental health conditions on return, that healthcare was also available and provided by NGOs, that there was available treatment for a range of mental health conditions in places such as New Delhi, and that there was a wide range of mental health helplines available which offered support for those in similar circumstances to the appellant; reliance was placed on the CPIN India: Medical and healthcare provision, Version 2.0, April 2023; the appellant had not provided a reasonable explanation as to why she would not be able to access this treatment; and the initial threshold test confirmed by the Supreme Court in AM Zimbabwe [2020] UKSC 177 had not been reached.
c. No Article 3 health grounds claim was then included in the list of issues set out in the ASA (and thus no such claim was responded to by the Respondent in her Review). Indeed, while the ASA provided detailed submissions on the identified issues, the only reference to the appellant’s mental health was contained in the section in which the appellant engaged with the respondent’s findings on credibility, and specifically within the appellant’s response to the respondent’s finding that little weight should be accorded to the threatening emails relied on by the appellant:
…The Appellant’s claim of receiving threats from her family is apparent in the emails. These emails are directly relevant to the Appellant’s claim and should be given due weight. The Appellant is having mental health difficulties. The lack of family support and ostracism are among the causes of mental health issues. The conclusions reached by Dr Ross are relevant and should be given due weight.
d. There was, however, documentary medical evidence before the Tribunal regarding the appellant’s mental health, including not only the Psychology Report, but also letters from the medical professionals who were treating the appellant. In addition, the appellant addressed her mental ill-health in her witness statement, and her diagnosis had, as recorded above, been brought to the Judge’s attention early in her cross-examination, at least by way of explanation for her emotional state.
37. Taking the above into consideration, we are satisfied that such a claim was readily discernible, and indeed we are satisfied that it was for this reason that the Judge sought at least in part to address such a claim in the Decision, despite it not being actively pursued by the appellant.
- Was such a claim obvious, meaning it had strong prospects of success?
38. This leads to the question of whether such a claim was obvious, meaning that it had strong prospects of success. To consider this question, we need to turn back to the applicable legal framework, and the steps that an appellant has to meet to establish a prima facie case.
(1) First step
39. As set out above, the first step is for an appellant to establish that they are a seriously ill person (1(1) in AM). In this regard, we are satisfied, having had regard to the evidence which was before the First-tier Tribunal regarding the appellant’s mental health and the treatment and medication which she was receiving, that the appellant had strong prospects of successfully meeting this requirement.
40. The documentary medical evidence from those involved in the Appellant’s treatment and associated support (the majority of that evidence either being dated in 2022 or undated) clearly supported, among other matters, that: the Appellant had long-term mental ill-health, including suicidal ideation and self-harm; she had been under the care of the Perinatal Community Mental Health Service for a year from around June 2021, before transitioning to a general adult community mental health service after her second child turned 1; she had been diagnosed with complex post-traumatic stress disorder (c-PTSD) with recurrent depressive episodes/disorder; she was prescribed Sertraline, an anti-depressant, Quetiapine, an anti-psychotic, and Diazepam (the extract from the appellant’s GP records, which appears to have been printed in April 2023, records 100mg Quetiapine once daily, 150mg Sertraline once daily, and 2mg Diazepam to be taken for severe agitation only, up to twice daily); she had previously required two psychiatric hospital admissions due to a rapid and severe deterioration in her mental health and her experience of suicidal ideation; the appellant’s poor mental health had also resulted in a child protection order being put in place for her children; she received extensive input and support from a variety of mental health professionals, including psychologists and psychiatrists, as well as receiving input from agencies external to the NHS including, among others, social work and Action for Children; and she was said to require long term support and therapy to manage her extreme and debilitating mental health difficulties.
41. Further, while there was no updated evidence before the First-tier Tribunal from those treating the appellant, there was a psychological report dated 12 June 2024 from Mary Ross, Consultant Clinical Psychologist, written following a psychological assessment conducted by WhatsApp video on 10 June 2024 (the Psychology Report), and both Ms Ross’s record of the appellant’s self-report regarding her condition and treatment, and Ms Ross’ own assessment of the appellant, was consistent with the earlier medical evidence lodged. We note in particular:
a. The appellant reported experiencing anxiety, occasional panic attacks, sleep disturbance, occasional hallucinations, rarely going out due to fear, and 2-3 suicidal thoughts a month. The appellant also reported that her GP was very supportive, she had been provided with a Community Practitioner, she had been invited to several groups (but was unable to attend due to the level of her anxiety), she was still on the waiting list for the Anchor Trauma Service, and she was in contact with a psychiatrist every two weeks. In relation to medication, the appellant confirmed that she was (still) prescribed 150mgs of Sertraline and 100mgs of Quetiapine medication. The appellant confirmed that although she continued to experience mental health difficulties, these medications had reduced some of her symptoms, and she was also occasionally prescribed Diazepam by her psychiatrist to reduce her symptoms of panic.
b. Ms Ross, who confirmed that she observed no evidence of exaggeration or manipulation either during the assessment or during the administration of the psychological tests, opined that the appellant’s presentation fulfilled the DSM-5 diagnostic criteria for PTSD 309.81 (complex), Major Depressive Disorder (severe), and Adjustment Disorder with Anxiety 309.24.
c. Ms Ross set out details of the psychological tests which were administered and her conclusion, including that the assessment confirmed the diagnosis made by the Principal Clinical Psychologist in a letter dated 10 May 2022, of c-PTSD with recurrent depressive episodes, and that:
▪ The present psychological assessment conducted on 10th June, 2024 confirms the diagnoses made by Ms McLeod, Principal Clinical Psychologist, as complex PTSD with recurrent depressive episodes.
• The present psychological assessment indicates that [the appellant’s] presentation also fulfils the DSM-5 diagnostic criteria for an Adjustment Disorder with Anxiety 309.24 attributable to her present immigration proceedings in relation to her asylum claim and her fears about being returned to India where she believes her life will be at risk.
• The present psychological assessment confirms a diagnosis of complex PTSD 309.81 attributable to childhood trauma and also to [the appellant’s] reported death threats from her family in July/August 2020.
• There is also a diagnosis of Major Depressive Disorder (severe) and a diagnosis of Adjustment Disorder with Anxiety 309.24.
d. For completeness, we note that Ms Ross did not appear to have reviewed the appellant’s full medical records, but rather only the 10 May 2022 letter from a Principal Clinical Psychologist at the Perinatal Mental Health Service. However, while we acknowledge the relevance of GP records to the assessment of an individual’s mental health (HA (expert evidence; mental health) [2022] UKUT 00111 (IAC)), we consider that in this case the lack of review of the same is of less significance given the consistency of Ms Ross’ report with the other medical evidence lodged.
- Second step
42. The next, multi-layered, step is set out at (2)[i] and [ii] of AM.
43. Turning first to (2)[ii], we are satisfied that the appellant had strong prospects of successfully showing that, absent appropriate treatment in India, she would face a real risk of being exposed to a significant reduction in life expectancy, as a result of completed suicide. As referred to above, the evidence supported, among other matters, that: the appellant suffered from suicidal ideation; she had twice required psychiatric hospital admissions; she was prescribed medication which included an anti-psychotic in addition to medication for depression and anxiety; and she received significant professional input including fortnightly sessions with a psychiatrist. Further, Ms Ross’s conclusion included that: “DSM-5 notes on page 278 that post-traumatic risk factors for the onset of PTSD include subsequent exposure to repeated upsetting reminders, subsequent adverse life events and financial or other trauma-related losses. There would be a very high risk of re-traumatisation with a return to India” and “The psychological assessment indicates that [the appellant] is at very high risk of completed suicide in circumstances in which a decision is made to return her to India”.
44. We therefore turn back to 2[i] of AM. As confirmed in THTN, a successful appellant in an Article 3 health claim case must provide sufficient evidence to cast doubt on the availability or accessibility of treatment in the receiving state. We are not persuaded that the appellant had strong prospects of success in this regard, on the evidence as it was before the First-tier Tribunal.
45. The only external evidence in this regard before the First-tier Tribunal was that lodged by the Respondent, namely the Australian Government Department of Foreign Affairs and Trade (DFAT) Country Information Report, India, 10 December 2020 (the DFAT Report) and the Country policy and information note: medical and healthcare provision, India, April 2023 (updated 18 December 2023) (the Medical CPIN).
46. The DFAT Report covers a wide range of country information. It includes a section on India’s health system at 2.32 – 2.38 which, among other matters, covers the challenges faced, the disparities in services and health outcomes between the Indian states and between urban and rural areas, the heavy reliance on the private sector (non-profit and private hospitals are said to provide 70 per cent of health care), the growing health insurance market, and a health insurance scheme introduced in 2018. It also includes a section specifically on mental health care at 2.39 – 2.42:
2.39 Access to mental health care is difficult and patients are subject to stigma and discrimination. In July 2017, the Mental Healthcare Act (MHC Act) came into force, repealing the earlier Mental Healthcare Act (1987), which had been widely criticised for not recognising patients’ rights. Interest groups consider the MHC Act an improvement as it contains a ‘right to mental health care’ and repeals section 309 of the Penal Code (1860), which had criminalised attempted suicide by a mentally ill person. Other policy and programmatic interventions in this area include the National Mental Health Programme, 1982; and the District Mental Health Programme, 1996. In 2014, the government released the first National Mental Health policy of India, ‘New Pathways New Hope’, and in 2016 undertook the first National Mental Health Survey of India.
2.40 Access to mental health care is not uniform across the country, with availability of services significantly more limited in rural areas than in urban cities and large towns. Across the country, an estimated 150 million people (12.5 per cent of the population) are in need of active interventions for mental illnesses, including nearly 12 million who are living with serious mental disorders. Given the shortfall of specialist and health services for mental illness, treatment is often unavailable or inaccessible even for those who actively seek health care.
2.41 According to India’s National Health Profile 2018, there are 43 government mental health hospitals in India. West Bengal has five facilities; Gujarat and Maharashtra have four; Kerala and Uttar Pradesh have three; Jharkhand, J&K, Karnataka, Madhya Pradesh and Rajasthan have two; and the remaining states have one facility each. India has fewer than 4,000 mental health trained professionals – fewer than one per 100,000 population. Most services are located in major cities, which often leads to local healers and non-qualified providers being the first point of care, even for serious mental health conditions.
2.42 In practice, mental health programs continue to suffer from severe constraints in technical, human and material resources, and remain a low priority on the public health agenda. A 2017 WHO report that examined improving access to, and the appropriate use of, medicines for mental disorders found significant barriers to accessing medicines at all levels of the health care system. Many barriers are linked to stigma associated with mental disorders, duration and costs of treatment, and, in many areas, the geographical distance from health care providers.
47. The Medical CPIN provides country of origin information for decision makers in Article 3 or 8 health ground claims. Section 1 includes general information regarding health care in India, in both the public and private sector (as well as noting that some services are provided by NGOs), including addressing the availability and coverage of state and private insurance schemes, as well as, in general terms, the availability and accessibility of drugs and medication. Mental health care is then specifically addressed at section 15. Among other matters, this includes: the National Mental Health Programme was launched in 1982, and now provides community mental health services in 123 districts through a District Mental Health Programme; the Mental Healthcare Act 2017 provides for mental healthcare and services, and sets out the rights of a person with a mental illness, including the right to access mental health care and treatment services run by or funded by the appropriate state government or central government (as well as providing that the right to access mental healthcare and treatment shall mean mental health services of, among other matters, affordable cost, good quality, available in sufficient quantity, and accessible geographically, without discrimination); despite policy measures to strengthen mental health care, resources are extremely limited (and reference is made to 2.40 of the DFAT Report set out above); the mental health workforce faces major shortages, including that there are few trained psychiatrists and other mental health workers for the size of the population (various statistics are provided from different sources, including, for example, an estimate that there are 3 psychiatrists per 1 million population); a significant proportion of the mental health workforce is concentrated in the private sector; national health initiatives have established psychiatric centres within specialised public hospitals and with the launch of the National Health Protection Scheme, comprehensive mental health care will also be available for beneficiaries at newly established Health and Wellness Centre programmes; inpatient or outpatient treatment and follow up by a psychiatrist, outpatient treatment and follow up by a psychologist, and psychotherapy, was confirmed as being available at the All India Institute of Medical Sciences in New Delhi, a public hospital at which treatment costs are subsidised; there is stigma around those suffering from mental health issues; and some NGOs offer mental health support and services (including some for those experiencing suicidal thoughts) via telephone helplines. In relation to medication, the Medical CPIN states that CPIT was unable to find information about the availability of drugs used to treat mental illnesses and their costs from the sources used and consulted.
48. While the DFAT Report and the Medical CPIN highlight various issues and challenges in the treatment of mental health conditions in India, this evidence also supports that, notwithstanding the issues highlighted, India has a functioning health care system, with legislation supporting the right to access mental health care in particular. Psychiatric treatment is available, albeit with the resourcing issues noted. While the appellant’s evidence included, for example, that she would be unable to access private treatment because it was very expensive (second substantive interview, Answer 41), our attention was not drawn to any documentary or expert evidence before the First-tier Tribunal regarding the availability or affordability of the medication the appellant is currently prescribed (or its equivalent), or regarding the affordability to the appellant of, for example, psychiatric (or other) treatment if she were to seek this on a private basis. While we accept that the appellant is seriously unwell, we find that as a result of the appellant’s decision not to pursue an Article 3 health claim, the appellant simply did not lodge any additional evidence sufficient to meet the evidential burden on her in relation to the availability and accessibility of treatment in India. It follows that even if Mr Katani could establish other errors in the approach taken by the Tribunal, it matters not, since the claim was, on the final analysis, bound to fail for a lack of evidence. Accordingly, we are not satisfied that the ground is made out.
49. Perhaps in tacit acknowledgement of the above, Mr Katani’s submissions included that the risk to the appellant would arise regardless of the availability and accessibility of treatment in India, as it would arise within the UK at the point of, but prior to, removal. For these purposes, we considered both the position in the UK and also in transit to India. However, putting to one side the question of whether such a claim was supported by the medical evidence lodged by the appellant, the appellant is, in any event, receiving treatment and support in the UK for her mental health conditions and our attention was not drawn to any evidence before the First-tier Tribunal supporting that this would not continue with such precautionary steps taken as deemed necessary by those treating the appellant. The appellant is in regular contact with her psychiatrist and it would be open to the appellant’s treating clinicians to arrange for her re-admission to hospital, as they have done twice previously, if she was considered to present an immediate risk of suicide. Further, the First-tier Tribunal would have been entitled to rely on the existence of sophisticated mechanisms being in place in the UK, as a signatory to the ECHR, to protect people from self-harm in such circumstances, and to infer that the Secretary of State would take all reasonable steps to discharge her obligations under section 6 of the Human Rights Act 1998 (J at [33] and [61]-[62]).
50. We do, however, take this opportunity to note that it is not immediately clear to us why an Article 3 health grounds claim was not actively pursued by the appellant before the First-tier Tribunal, particularly given the matters we highlight above regarding her serious ill-health. It may, of course, be the case that a view was taken at the time by those representing the appellant that the high threshold applicable to such claims simply could not be met, and that may well be the position (we are only concerned in this decision with whether there was a Robinson obvious error, in circumstances where no such claim was pursued). However, the possibility of a fresh claim being made in this regard may be a matter the appellant wishes to consider further with her new representatives.
Additional matters
51. Finally, and for completeness, we briefly address here additional matters that were raised at the outset of the hearing regarding other potential Robinson obvious errors, albeit noting that these matters did not form part of the grounds for permission to appeal, and were not developed in detail at the hearing.
52. Mr Katani submitted that there was a Robinson obvious error which flowed from the Article 3 health grounds claim that infected the protection aspect of the appeal. In short, Mr Katani submitted that there was a Mibanga v SSHD [2005] EWCA Civ 367 type error, in that the Judge had rejected the appellant’s credibility, but had failed to make any findings on the medical evidence which, Mr Katani submitted, was independent evidence which supported the appellant’s account. Mr Katani also submitted that there was a further possible Robinson obvious error, relating to the consideration of the best interests of the appellant’s children. However, while the Judge declined to make any findings in relation to an Article 3 health grounds claim, it is clear that the Judge did consider the Psychology Report and found that there were other factors relevant to the appellant’s mental health conditions (see at [50] of the Decision), which we consider was a finding open to him on the evidence (including having regard to the matters recorded in the other documentary medical evidence). Further, while there were some references in the papers before the First-tier Tribunal to the children being (or having been) subject to a child protection investigation and order, there was little information before the First-tier Tribunal in this regard. The Judge found that the best interests of the children, neither of whom were qualifying children for the purposes of section 117D of the Nationality, Immigration and Asylum Act 2002, were with their parents (at [57]) and, in circumstances where the appellant’s protection appeal was refused, the family could return to India as a family unit. Again, we consider this a finding which was open to the Judge on the evidence. We can see no Robinson obvious error in the Judge’s approach on these matters.
53. We had also queried with the representatives whether, in circumstances where it had been accepted by the Respondent (as confirmed by Mr Mullen) and the Judge that the appellant was Hindu, married to a Muslim man, and from a BJP stronghold area, it might be said that there was a Robinson obvious error in a failure to conduct a discrete risk assessment and to then consider the particulars of the case in light of that assessment. However, we accepted Mr Mullen’s submissions on this point that the Judge had considered this matter in his analysis of the expert report and had made a finding in the alternative that the appellant and BA could relocate internally (in particular, at [30]-[36] and [46]).
Notice of Decision
1. The making of the decision of the First-tier Tribunal did not involve a material error on a point of law.
2. The decision of the First-tier Tribunal shall stand.
3. There is an anonymity order in this protection appeal.

L.C. Connal
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
28 July 2025