Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000667

First-tier Tribunal Nos: HU/62689/2023
LH/05538/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 11th November 2025

Before

UPPER TRIBUNAL JUDGE KEITH

Between

‘EH’ (ALBANIA)
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr A Chakmakjian, instructed by Lillywhite Williams & Co Solicitors
For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer

Heard at Field House on 16th October 2025

Order Regarding Anonymity

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

DECISION AND REASONS
Background
1. This is the remaking of the appellant’s human rights appeal, following the decision dated 27th April 2025, in which I found that a Judge of a First-tier Tribunal had erred in law. That decision is annexed to these reasons.
2. At the beginning of this hearing, I identified the issues with the representatives and then considered the appellant’s evidence. I refer to the witnesses as the appellant, and his wife as the ‘sponsor,’ for ease of reference. In the error of law decision, I had not discussed in detail the sponsor’s medical condition because it was unnecessary to do for the purposes of deciding whether the Judge had erred in law. However, I agreed with the representatives that when remaking the appellant’s appeal, it would be necessary to explain the sponsor’s medical condition, which I now disclose as serious anorexia nervosa. The sponsor’s medical condition, which is not disputed, forms one of the bases on which the couple maintain that the consequence of the appellant’s removal or refusal of leave to remain would have unjustifiably harsh consequences; or in the alternative that there would be very significant obstacles to the couple’s integration in Albania.
The hearing
3. The appellant provided a paginated and indexed bundle, the pages of which I refer to in the format, ‘X/AB.’ He adopted a witness statement, as did the sponsor, and they both gave witness evidence on which they were cross-examined. In addition, on occasion, it was necessary to refer to passages in earlier witness statements provided to the First-tier Tribunal, but the references were sufficiently limited that I do not refer to separate pagination, but instead to those specific documents.
4. The respondent accepted that the sponsor is a vulnerable witness, and also that I should treat the appellant as a vulnerable witness by virtue of his own mental health issues.
5. I identified and agreed with the representatives the issues as follows.
The issues
6. As recorded in the appellant’s skeleton argument, the respondent accepted that the appellant had met the requirement of the Immigration Rules under Appendix Family Life on the basis of suitability; the relationship between the appellant and sponsor (they are a married couple); their finances; and their proficiency in English language. The appellant did not meet the Immigration Rules’ requirement of eligibility, on the basis of having no lawful status in the UK at the date of his application. Put simply, the appellant had entered the UK in or around 2014 without any leave to do so.
The appellant’s immigration history
7. The appellant is an Albanian national. He claimed, although it is disputed, that he had been trafficked and that he managed to escape those trafficking him in Gloucestershire in 2016 and travelled thereon to London. He had subsequently married the sponsor, who is now a dual Australian-Polish national. They met in July 2019, began a relationship around August 2019, have cohabited since January 2020, and deciding to marry on 7th November 2020. They were eventually able to marry on 13th May 2021. The date of the marriage is important because by virtue of Appendix EU and the authority of Celik (EU exit, marriage, human rights) [2022] UKUT 00220, the appellant was not able to rely upon the provisions of Appendix EU as a spouse of an EEA national. The sponsor herself was granted pre-settled status on 22nd March 2021. On her case, she had applied in or around December 2019 for Polish nationality, having entered the UK on a work visa, as an Australian national. By virtue of her grandparents being Polish, she was entitled to register (as opposed to being born) Polish and that registration was completed and she was recognised as a Polish citizen in mid December 2020. That is important as on her case, had she been able to marry the appellant earlier, for example in November 2020, by virtue of subsequently becoming a Polish citizen and exercising treaty rights, the appellant would have been able to rely on the provisions of Appendix EU. Nevertheless, he is not, and he accepts that by virtue of the authority of Celik, he cannot rely upon Appendix EU. However, his case is that in the proportionality analysis for the purposes of his human rights claim, it is relevant that had the couple been able to marry earlier in 2020, when they were not because of delays and backlogs within the marriage registry system, he would otherwise have been able to regularise his status under Appendix EU.
8. I do no more than summarise the parties’ respective positions, followed by my discussion of their witness evidence, my findings, and conclusions.
The Appellant’s position
9. The appellant claims to have been the victim of trafficking from Albania to the UK by a criminal gang. He had been coerced into thefts and drug distribution in Albania, which was consistent with country evidence on human trafficking. However, he accepted that he had not brought an asylum claim in the UK, partly for fear that his claim would be unsuccessful and also because he had been advised to keep his ‘head down’ whilst remaining in the UK. It was only later that he had, on marrying the sponsor, applied to regularise his status. As a consequence, he recognised that an analysis of his claimed fear from traffickers faced hurdles because of the respondent’s lack of an ability to have interviewed him. All he sought was a finding that his fear of return to his hometown, from where he had been trafficked was a genuine one and that was the reason that he could not return to his hometown. His subjective fear, even if not objectively well founded, was the reason for his acute anxiety and PTSD.
10. The appellant also pointed to having left Albania aged 18 with limited qualifications. He accepted that he had worked cash-in-hand on occasion in the UK in the construction industry but if required to return to Albania would do so without any family members there, who had since emigrated to Italy, because of their fear of those persecuting him. Wages in Albania were low. His parents now lived in Italy, along with his sister who spoke good English. He accepted that his father continued to own the family home in Albania, but this was now occupied by a tenant and in any event, he could not return to the family home, because of his fear.
11. Moreover, there was the position of the sponsor. It was now clear, in light of the medical evidence, that the sponsor had a very serious medical condition. His undisputed role in supporting her was critical. They lived together, he cooked to ensure she had warm meals, talked to her when she had difficulties in managing her condition and provided all the support of a loving husband. Moreover it was not merely his role, but her relationship with her counselling therapist in the UK from whom she had received treatment for around 14 months. Support from the couple’s close friends in the UK was also important. If the couple were separated, with the appellant returning to Albania and the sponsor remaining alone in the UK, the impact on the sponsor’s medical condition would be very serious, as the medical report made clear. If the couple were to relocate together to Albania, the impact would be different, but also severe. The sponsor had never been to Albania, spoke no Albanian, and would be highly unlikely to be able to access medical treatment for her anorexia, including counselling in English with a trusted counsellor, and the likelihood was that her condition would also deteriorate, even if returning with her husband. In both cases, there would be both very significant obstacles to the appellant’s integration and also that the impact on the sponsor’s medical condition, either in the so called ‘go’ scenario (where the couple both moved to Albania) or the ‘stay’ scenario, where the sponsor remained in the UK and the appellant relocated would have equally devastating effects on the sponsor’s medical condition. This was setting aside the impact on the appellant’s acute anxiety.
The Respondent’s position
12. The respondent did not now challenge the sponsor’s medical condition. However, and without belittling the gravity of it, the respondent argued that the sponsor would have the benefit of remaining in the UK with her close friends, a supportive employer via whom she obtained counselling, and with means of ‘modern communication’ with the appellant. Alternatively, if the couple relocated to Albania, she had not fully explored an ability to get an alternative job. Her employer who was a European conglomerate. Even if it did not have a presence in Albania, they might permit some form of home working in a different role. In terms of access to counselling, Albanians now were routinely taught English language at school, so the availability of an English-speaking counsellor could not be ruled out. The couple could return together and provide one another with solace and support. The appellant had failed to adduce evidence that counselling and a job for the sponsor were not available. His claimed fears were not truthful. He could work and the couple could live in the family home in Albania.
A summary of the witness evidence
13. The appellant and the sponsor both gave witness evidence. I do no more than summarise it before reaching my findings.
14. In relation to the sponsor’s evidence, he confirmed that he had a mother and father who now lived in Italy, with his sister, who was a student. He had attended middle school in Albania, was constantly bullied and intimidated by a criminal gang known as ‘Tullac’ who wanted him to steal mobile phones and sell drugs, which he had refused to do. He was young at the time, vulnerable, from a very poor background although, as he suggested in a witness statement to the medical expert, was from a family which was neither rich nor poor, but he had no influence with the authorities to ask for any help. He had been trafficked, treated like a slave in the UK, worked under round-the-clock supervision and unable to escape for many years, until 2016, when his captors allowed him to go food shopping in Gloucestershire, and whilst out shopping, he had fled. After that, he slept rough, undertook cash jobs with no documents, was dependent on food banks and charities and only was able to register with a GP after COVID. He suffered from anxiety and panic attacks and only upon meeting the sponsor did his situation turn around. He claimed in his witness statement that his traffickers were still looking for him and he had indirectly received threats on the basis that he owed them a substantial amount of money, namely £20,000. However, he clarified under cross-examination that this was as a result of a recent discussion that he had had with his sister, which related to her having been told of the threats in 2016, before she and her parents had left Albania. He accepted that he had had no further direct contact from his traffickers or captors since 2016, nor had his family. Nevertheless, he maintained that he would not be safe and that they would be able to use their influence to get to him.
15. The appellant described beginning his relationship with the sponsor in 2019, moving in together in January 2020, that she proposed to him on 7th November 2020 and that although they had wanted to marry, they were not able to do so because they could not get a marriage booking at the Register Office. They referred to correspondence confirming this and their eventual marriage in 2021. He referred to having applied under Appendix EU for pre-settled status, which the respondent had rejected. He discussed his wife’s full-time employment as a compliance specialist for a large European conglomerate. The couple lived in rented accommodation. The appellant did not have the right to work but had had a job offer in the UK with a potential salary of over £30,000 annually. He reiterated that the sponsor did not speak the Albanian language, would be unlikely to find employment, that medical care was expensive, the quality of care was poor and that many Albanians were forced to leave Albania to seek treatment abroad in places such as Turkey, Italy and Greece. He also added that both he and his wife had serious mental health issues, which would risk deterioration were they removed, in particular the possibility of his wife’s early death.
16. Moreover, Albania was a traditional society, and people did not like ‘mixed’ marriages. The appellant explained that he was of Muslim faith, and the sponsor was not. She would be treated poorly and unfairly when looking for employment and would be stigmatised due to her health diagnosis. There was also a lot of corruption and extortion in Albania, without proper law and order.
17. In terms of his own health issues, the appellant referred to having been admitted to A&E in November 2023 with upper left side chest pain and shortness of breath, due to stress he had been suffering, and panic attacks. As a consequence, he had been admitted to hospital, received zopiclone and had had suicidal ideation, but these thoughts were now rare since meeting the sponsor.
18. With regard to the sponsor’s witness evidence, she referred to having come to the UK on a working visa as an Australian national and paying her UK taxes, applying for Polish nationality, and now working for a European conglomerate with responsibility in an insurance compliance role. She accepted that she had not specifically asked her employer about the availability of internal transfers within the EU, although Albania is not of course an EU country. She indicated that she spoke no Albanian. While she understood that people may have been taught English at school, and for example her sister-in-law spoke good English, her parents-in-law did not.
19. The sponsor also described the challenges of her anorexia nervosa. She described the importance to her of the appellant caring for her, cooking her hot meals, ensuring that her compulsive control caused by her condition was moderated, including her compulsion to over-exercise. She had contemplated self-harm in the event that the appellant was removed, and she was separated from him. She also described the importance of the couple’s friends in supporting her, and also her counselling. She had had support for a significant period of time, from a single counsellor, with whom she had developed an important rapport. She could not envisage how this would work either with a new counsellor or in particular via an interpreter, because part of the challenge was overcoming her reticence in discussing some very sensitive matters with the counsellor. If there were barriers to that, that would only increase the risk of her health worsening.
Findings
20. There are elements of the appellant’s position which I find, on balance, as plausible and reliable, and others which I do not accept and so reject.
The appellant’s circumstances
21. In relation to the appellant’s claim that he was trafficked from Albania to the UK, there are a small number of minor inconsistencies in his story, in particular in relation to the original witness statement in the First-tier Tribunal. He had referred to being bullied, but not ‘constantly’ as he since claimed and he referred in the FtT to having a number of friends. He further accepted, when asked by Ms Isherwood, that he had played truant from school. I accept there is therefore an element of exaggeration in that small part of the account of how he became isolated before he claimed to have been the target of a criminal gang.
22. There is also plainly a potentially misleading comment by the appellant, in his more recent up-to-date statement (§7, 110/AB), where he refers to his sister informing him that the alleged traffickers had claimed that he owned them a debt of £20,000 and were threatening to kill him. It was only on cross-examination that it transpired that the threats and claim of a debt were made to the appellant’s family before they left Albania in around 2016, so were made around 8 years ago, but the appellant’s sister had only referred to the claim of a debt recently. Even then, the appellant’s oral evidence was that his sister had merely heard of suggestions of a debt. In other words, the appellant’s oral evidence was far less concrete than the apparently direct claim that there had been a specific threat. There is also a contrast between the detail which the appellant provided to the psychologist, Mr Ahmed, on 20th May 2024, as recorded in the report, concerning the main trafficker of the appellant, at §5.6 245/AB onwards, about an individual who asked him to sell phones, not tell anyone and keep it from his parents, at which time his own parents then intervened, where the appellant was threatened with a gun and was told that he must travel to Tirana, and the far more limited evidence in the appellant’s witness statement at §3, 98/AB. Ms Isherwood had challenged the appellant, and I accept her criticism that the appellant has been unwilling to name the individual, nor has he been willing to provide any evidence on the gang in question, which he claims is sufficiently well-known and high profile, across Albania, that its influence speaks for itself. On the one hand, there is no requirement of corroboration but on the other, there is obvious evidence, in the context of the appellant’s claims about the notoriety of the gang and its countrywide reach, which could have and has not been adduced.
23. In summary, while not compartmentalising the witness evidence from the medical evidence, and while there is some detail provided to the psychologist, the respondent has been unable to question the appellant at the time (before this hearing), and his witness statements and oral evidence are relatively brief. He has refused to name the lead perpetrator or to provide further details of the high profile and national reach of his claimed traffickers. I bear in mind that the claim of trafficking may be plausible, but I also accept the challenge based on JA (human rights claim: serious harm) Nigeria [2021] UKUT 00097 (IAC) of the fact that the appellant has not brought an asylum claim. He has raised different explanations for not doing so, either because he was not aware of his ability to do so or alternatively because he did not think that he had a valid claim. (The former was contended in oral evidence before me. The latter was reflected in a witness statement that the appellant had provided to the First-tier Tribunal at §17, where he stated that it was “unlikely that I would succeed with a claim for asylum, therefore, I have decided not to put in a claim for that remedy.”)
24. However, I bear in mind the need to consider the appellant’s claims in light of the medical evidence. I had been critical of Mr Ahmed’s report, beginning at 259/AB, in the error of law decision. This was in particular because of the potential availability of GP records which the expert had not addressed, (see §31 of the error of law decision). I had similar concerns about the absence of evidence with regard to the sponsor, at §32 of the earlier decision. However, there is more detailed evidence now. In particular I have before me the GP records for the appellant. Whilst they are for a limited period from the end of 2024 to the current date, by virtue of the appellant not registering with a GP, the records nevertheless referred to post-traumatic stress disorder (370/AB) for which the appellant is taking propranolol, in April 2025. The records referred to a history of anxiety, panic attacks, and some suicidal thoughts and not being able to work; and his having tried talking therapies about a year and a half earlier (in a record of 23rd December 2024 for PTSD, at 373/AB) and having been seen in a mental health clinic on 25th November 2024 because of safeguarding and suicidal thoughts (374/AB). The record of 3rd September 2024, (376/AB) refers to the appellant ‘having had zopiclone’ (a common sedative) in 2022, with a ‘good support network’, but having suffered ‘stress and anxiety’ and ‘insomnia’ and having been prescribed propranolol in September 2024. The same GP refers, at 392/AB, to having witnessed how the stress and uncertainty surrounding the appellant’s immigration status has profoundly affected his wellbeing, with resulting severe and frequent panic attacks due to the ongoing pending decision regarding leave to remain. The GP describes this being compounded by history of PTSD, link to trafficking in 2014. Separately, the respondent itself noted at 393/AB the appellant’s claim to have been hospitalised in 2023 with a severe panic attack.
25. As noted above, the appellant has mentioned to those treating him about having been trafficked. While it is not their role to assess the veracity of that claim, which may be exaggerated or unreliable, the evidence suggests that the appellant does suffer panic attacks, has done for a number of years, although their focus appears to be the resolution of the appellant’s immigration status, his feelings of marginalisation and his inability to work.
26. In the circumstances, weighing all the evidence together, on the one hand, the evidence about the claims of trafficking is slim. The appellant has not undergone an asylum interview. He has provided more detailed comments to the psychologist, some of which appears to contradict his witness statement. He accepts that he is not seeking to claim asylum and has provided no recent evidence about those whom he claims to fear (the alleged threats via his sister were in 2016). On the other hand, I bear in mind the medical records with which I have now been provided. On the balance of probabilities, I find that the appellant does suffer from and has suffered for a number of years from acute anxiety. However, the medial records are consistent with the focus, from a medical perspective, of the appellant seeking to regularise his immigration status and the resolution of that over five years, which I have no doubt is genuine and has caused him significant anxiety and panic attacks. That is different from a psychological distress which would be the result of return to Albania because of a genuine, even if of a misguided, fear of persecution. I find that the appellant has acute anxiety because he fears to leave the UK and wishes very much to remain with his wife in the UK, given her acute medical needs and his fear if they were separated, or how they would cope in Albania. I reject the claim that the appellant is afraid to return to Albania because of a fear of traffickers.
The sponsor’s circumstances
27. With regard to the sponsor, the medical evidence is unchallenged and frankly, even if it were challenged, it is impeccable. Whilst Ms Isherwood was not able to comment on the medical author’s expertise, I note that the author is a consultant psychiatrist at a leading mental health partnership in the NHS. I do not name them, but they have been working in the area as a consultant for the past seven years and the evidence is coauthored by a counselling psychologist.
28. The medical evidence confirms that the sponsor meets the diagnostic criteria for severe atypical anorexia nervosa as well as severe anxiety and depression. She has struggled with her mental health from a young age. She had a formal diagnosis of anorexia nervosa in Australia in 2019, and her symptoms are currently described as “severe”. Whilst she is currently engaging with treatment, she requires regular review, due to how low she can feel with suicidal ideation. Her treatment includes private psychotherapy funded by her employer. She finds it beneficial and has a good rapport with her psychotherapist, but due to the severity of her low mood and anxiety, which serves to worsen her anorexia symptoms, she has also been started on psychotropic medication and is being reviewed on an ongoing basis. Whilst the medical authors are careful to caveat their advice, adding it is difficult to comment on prognosis, when coupled with significant social stresses such as a separation from the appellant, forced separation, “would be likely to increase her suicidal ideation, and significantly worsen her mood and anxiety along with anorexia symptoms. Without treatment her prognosis is likely to be significantly worse and likely require crises service involvement.”
29. The authors were also asked to comment on the appellant’s role in supporting the sponsor. They describe the relationship as being very protective, helping her wellbeing, promoting her stability and better mental ill-health, and if they were forcibly separated this would likely cause a significant deterioration in the sponsor’s wellbeing and safety, her functioning and would increase her risk of harming herself.
30. In relation to the scenario of the couple returning together to Albania, I accept as valid the respondent’s challenge, which the authors themselves recognised that they are not experts in the provision of mental or other health provision in Albania, and what living there would involve in terms of integration, but they also note that the sponsor is not able to speak Albanian. That would have a likely detrimental impact on her ability to access appropriate therapy and healthcare. They also note that the sponsor finds work helpful in terms of routine and structure and so would be unlikely to find employment there. That would affect her wellbeing, and given her current difficulties with her mental state, and already worsened by the thought of her partner being forcibly removed which means that she is anxious and depressed, would make relocation very difficult and potentially worsen her wellbeing once there, meaning that she may require urgent mental healthcare, which may or may not be available in Albania (414/AB).
31. Having rejected the appellant’s genuine claim to fear traffickers but accepting that he suffers from acute anxiety in seeking to remain in the UK with his wife, I turn to the scenarios of the appellant’s removal with or without the sponsor. She provided compelling witness evidence about the importance of the appellant in her life, in seeking to help her manage a condition which focuses upon control. A feeling of an absence of control inevitably makes her condition worse and it is already very serious, with the possibility of a need for crisis intervention. I have absolutely no doubt about the diagnosis and severity of the sponsor’s condition.
The ‘separation’ scenario
32. In relation to the ‘separation’ scenario, whereby the sponsor remains in the UK and the appellant is removed to Albania, I also have no reason to doubt the consultant psychiatrist’s view that this would be likely to cause a significant deterioration both in the sponsor’s wellbeing and also her safety. She would be at risk of harming herself. On the one hand, she would continue to have a job and also a circle of friends but on the other, I do not accept that means of communication with the appellant from Albania would begin to replace the central role that he plays in helping her managing her condition, whether it be ensuring that she comes home to a hot meal which he can ensure that she eats, or supporting her in reducing her desire to over-exercise. The lack of control which would be occasioned by separation of the couple would naturally result in a likely deterioration in her health.
The ’go’ scenario
33. In relation to the ‘go’ scenario, whereby the appellant and sponsor live together in Albania, I regard as wholly unrealistic any suggestion that the scenario would not involve a significant amount of risk for the sponsor in terms of her health. On the one hand, I accept that the sponsor has not specifically asked her employer, which has EU subsidiaries (although there is no suggestion of an Albanian subsidiary) for some form of remote working, whether she would be permitted to work from an entirely different country, in a different role. Her current compliance role requires her to work in the UK office. In other words, there may or may not be vacancies within the European conglomerate although I repeat no suggestion of any roles in Albania. That being said, without the risk of any speculation, the chances of the appellant obtaining and succeeding in such a role must be challenging, where the sponsor already has significant ill-health which is managed carefully in her home environment. She is able to manage (just) her condition with a supportive line-manager, counselling funded by her employer and with a psychotherapist with whom she has developed a rapport. In her stable current arrangements, her management of her condition is precarious. Any suggestion that she would also be able to practically access counselling, even if it were available in Albania via an interpreter (taking the respondent’s case at its highest) is wholly unrealistic. I accept the psychiatrist’s view it would present obstacles to the continuing counselling which is an important aspect of the sponsor’s treatment. This all assumes that even by virtue of the appellant not having a fear of return to his hometown that the couple would find accommodation and be able to work. It may well be that the appellant would be able to find some form of job, although he is acutely anxious. Notwithstanding having been absent from Albania, he is keeping up with the news in Albania, as he accepts and so is in touch with Albanian culture. The practical difficulty is that the coping strategies that the couple have around the sponsor’s significant ill-health is part of one package. In other words, a specific employer is willing to provide private counselling, through which the sponsor has accessed the same counsellor for a significant period of time, in circumstances where she has lived in a safe and secure environment and has made her home for the last six years. I bear in mind that the couple may not be destitute and that may have access to accommodation in Albania and some form of work. They will nevertheless be isolated from their existing support network of friends. I also find it highly likely that even if the sponsor were able to obtain some kind of counselling, that this would be with a different counsellor via an interpreter. The sponsor’s ability to continue working for her current employer is, even taking the respondent’s case at its highest, highly questionable. In this context, without needing to be an expert on the availability of medical care in Albania, it is clear that the ‘go’ scenario would present a serious risk to the sponsor’s health.
Conclusions
34. Applying the law to these findings, I bear in mind Section 117B of the Nationality, Immigration and Asylum Act 2002; Section GEN.3.2 of Appendix FM (as was) and Appendix private life. I am satisfied first, in relation to private life, that up until the appellant met his wife, any private life in the UK was limited. I have little evidence about it and the appellant’s limited integration is clear, whether his account of trafficking is accepted or not. He was effectively ‘off radar.’ I accept that little weight should be attached to such private life as he had developed. I accept that since then, he is still without status, albeit in circumstances where he is seeking to regularise his status and although the couple should not have any expectation that they would have been entitled to leave to remain because of its precarious nature, there is a greater degree of integration. The appellant does not work, but I accept as reliable that they have a sufficient group of network and supporters that he would be able to get a job swiftly and indeed, as reflected in the doctor’s evidence, part of the reason for his stress is his guilt at not being able to work. I accept that if he were returned to Albania without the sponsor, he would be desperately worried and acutely anxious, not so much because of any fear of traffickers but because of the likely significant deterioration in his wife’s health, requiring crisis intervention. His ability to integrate in Albanian society would naturally be hampered, even if he had access to accommodation and some form of means of supporting himself. I similarly accept that he would have the same anxiety in light of the likelihood of his sponsor’s deterioration in health if the couple were to move to Albania, where they have no immediate family and the sponsor has never lived and has no familiarity with Albanian society, even assuming some limited chance of her working. In reality, such a chance will be prevented by the deterioration in her health and so the couple will be left potentially able to house themselves but with the sponsor’s condition spiralling out of control. There would be very significant obstacles to integration in both the ‘separation’ and ‘go’ scenarios.
35. With regard to Section GEN.3.2 and the consequences of the appellant’s removal on himself and the sponsor, I conclude that the consequences would be severe. In both scenarios, the spouse’s medical condition would significantly deteriorate requiring possible crisis intervention and risk of self-harm. Turning to the question of whether this is unjustifiably harsh, I stand back in the proportionality analysis and consider the factors in Section 117B of the 2002 Act. The couple are self-sufficient in the sense that the appellant has not claimed any form of benefits, and he speaks English. Those are neural factors. Of the factors weighing against the appellant, I bear in mind on the one hand that he entered the UK unlawfully in 2014. I have not accepted that he was a victim of trafficking, and I know little of the circumstances of his presence up to 2019 when he met the sponsor. I stress and acknowledge the importance of immigration control in that context and the lack of any expectation the couple can have had unless they had been able to regularise the appellant’s status through the Immigration (EEA) Regulations 2016 and corresponding Appendix EU.
36. On the other hand, I first bear in mind and find as likely that the couple were keen to marry in the latter part of 2020 and, as the sponsor has given oral evidence, they attempted to take steps to do so in the latter part of 2020. Whilst timing would undoubtedly have been tight, had they been able to do so and upon the sponsor being registered as a Polish citizen and subsequently exercising treaty rights in mid December 2020, there is at least a possibility that the appellant would then have been able to apply for pre-settled status along with his wife. The fact that he was not able to do so is, I find because of a backlog in registry office marriages. That is however only one factor. The other factors are the couple’s health and the impact of the appellant’s removal. If it were the appellant alone, the focus upon him has been on regularising his status and the stress and anxiety that that has caused, but that stress does not relate to his presence alone. It naturally relates to his fear about his wife’s ill-health and the clear role he plays in supporting his wife. Her condition is undoubtedly gravely serious. Bearing in mind my findings on the consequences of either the stay or the go scenario, I am satisfied that the impact both on family life and also health for both of them in light of her likely need for crisis intervention would be severe, bordering on the bleak.
37. In the circumstances and in this exceptional case, I am satisfied that the respondent’s decision to refuse the appellant leave to remain is disproportionate.
38. As a consequence, the appellant’s appeal succeeds on human rights grounds.

Notice of Decision
39. The appellant’s appeal under Article 8 ECHR succeeds. The respondent’s decision to refuse leave to remain is not upheld.

J Keith

Judge of the Upper Tribunal
Immigration and Asylum Chamber

10th November 2025

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000667

First-tier Tribunal Nos: HU/62689/2023
LH/05538/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE KEITH

Between

The Secretary of State for the Home Department
Appellant
and

‘EH’ (ALBANIA)
(ANONYMITY ORDER MADE)

Respondent

Representation:
For the Appellant: Mr J Nappey, Senior Home Office Presenting Officer
For the Respondent: Mr A Chakmakjian, instructed by Lillywhite Williams & Co Solicitors

Heard at Field House on 9th April 2025

Order Regarding Anonymity

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

DECISION AND REASONS
1. These written reasons reflect the full oral reasons which I gave to the parties at the end of the hearing.
2. The appellant is the Secretary of State. The respondent is ‘EH.’ To avoid confusion, I will refer to the parties for the remainder of these reasons as the Claimant and the Secretary of State. This decision comprises two parts – a decision on the Claimant’s purported application to adduce evidence which was not before the FtT Judge under Rule 15(2A) of the Upper Tribunal Rules; and a decision on whether the same Judge erred in law.
The application to adduce new evidence
3. I do not recite the full litigation history in the matter, except to say that at the beginning of the hearing, as this was the Secretary of State’s appeal, Mr Nappey, Senior Presenting Officer on behalf of the Secretary of State, outlined his case. He dealt with both grounds. We then came on to representations from Mr Chakmakjian. At the beginning of his submissions, when he began, he asked whether I would need to deal with an application under Rule 15(2A) first. I indicated to him that I had no such application before me, as far as I was aware and in doing so, I checked this Tribunal’s case management system, referred to as CE-File. I indicated that there was nothing on the system or pending and enquired the circumstances in which it had been made. Without criticism of him personally in any way, although obviously of concern, as there has clearly been a failure to comply with relevant directions, Mr Chakmakjian indicated that an application had been made by email (not CE-File) last Friday afternoon, which is Friday 4th April. That was made to an Upper Tribunal email address at Field House and also to the Secretary of State. When I queried with him whether the Claimant’s solicitors had filed the documents on CE-File, as mandated by the Practice Direction for the Immigration and Asylum Chamber of the Upper Tribunal: Electronic filing of documents online – CE-File of 31 August 2023, Mr Chakmakjian indicated that they had not. There was no explanation for non-compliance with the Practice Direction. Although I was later informed that he had told Mr Nappey of this before the commencement of the hearing, the issue was not raised with me until after Mr Nappey’s submissions, and I was unaware of the fact of a Rule 15(2A) application. The parties could not expect that emails, even if marked ‘urgent’, and sent to a different administrative team, would be directed to a Judge, when the Practice Direction has required filing via CE-File since September 2023, and the Tribunal’s administrative staff work on that basis.
4. The application itself also is, as Mr Chakmakjian accepts, deficient in other respects. In particular, the covering letter from Lillywhite Williams & Co Solicitors, which I have not seen, but which Mr Chakmakjian read out to me in the hearing, indicates that a bundle of additional documents is relied upon and that an oral application would be made at the hearing. When I asked why the letter gave no reasons for the application, and instead relied on oral submissions at the hearing, Mr Chakmakjian suggested that this was perhaps because of the pressure of time. I queried further whether the application complied with Rule 15(2A), on the basis that a party must send a notice indicating the nature of the evidence and explaining why it was not submitted to the First-tier Tribunal. Instead, the covering letter merely indicated that an oral application would be made the following week. Mr Chakmakjian did not demure from my preliminary view that the application did not comply with the need for a compliant notice, but instead he invited me to relax the Rules in relation to that, particularly where the Secretray of State was, in his words, ‘inviting the evidence’ in its grounds of appeal and the documentation had been sent to it.
5. I indicated that I was surprised, to say the least, that not only has application not been made in compliance with longstanding mandatory requirements for filing with CE-File, but that the apparent explanation for not setting out clearly a compliant notice, was a pressure of time. What this has meant was that having heard detailed submissions from Mr Nappey, it was only halfway through the hearing, that the oral application has been made. I made no criticism of Mr Chakmakjian, as I knew not where the fault lay for this, but I was significantly concerned that upon conclusion of this hearing, I issued direction requiring a witness statement from the Compliance Officer for Legal Practice (the ‘COLP’), at Lillywhite Williams & Co Solicitors, to explain how the litigation process has resulted in what has occurred. I would then consider whether it was appropriate to refer the matter to a relevant regulatory authority. However, I emphasised, again, two things. First, at this stage, I know not where the fault lies, and second, the apparent breaches have not been material to my refusal of the application, for reasons I set out below.
6. Mr Chakmakjian summarised the gist of the medical evidence relating to the Claimant’s wife, (which I have not seen in detail) which he says address the question of her health issues, as included in her GP records. Given its sensitivity, I do recite the nature of her medical condition, as it is unnecessary for me to do so. If it is as outlined, I can see that the condition is potentially relevant to the Claimant’s case, had it been before the Judge (it was not).
7. The application, as framed to me orally when I asked for Mr Chakmakjian to address me in by reference to the principles in Ladd v Marshall [1954] 1 WLR 1489 as a starting point and the wider discretion in Kabir v SSHD [2019] EWCA Civ 1162 was as follows. First, Mr Chakmakjian accepts that the evidence could have been obtained with reasonable due diligence for use at the First-trier Tribunal trial and I pause to observe in its Review documentation, filed and served in advance of any hearing as part of a standard FtT process, the Secretary of State had expressly raised the issue of HA (expert evidence; mental health) Sri Lanka [2022] UKUT 00111 (IAC), so that the absence of the Claimant’s wife’s GP records before the hearing was a live one before the hearing. I went to go consider the second and third conditions in Ladd v Marshall, namely that the evidence would probably have an important influence on the result of the case; and that the evidence must be such as presumably to be believed. I am also conscious that my discretion is broader than simply the Ladd v Marshall principles, as Kabir confirms. However, I accept Mr Nappey’s submission that this case is perhaps less common, in that the Claimant has succeeded in his appeal, in part based on expert reports, with which the Secretary of State took issue, relying on HA (expert evidence) and the absence of underlying medical records. It is the Claimant, who succeeded, who now seeks to rely on the missing GP records, and Mr Chakmakjian accepts that the logic of his submission is that the absence of GP records would have made no difference, as the Judge would have been bound to have reached the same decision.
8. I reiterate that I have not seen the detail of the evidence. But even taking, for one moment, the evidence at its highest, that would require a detailed evaluation of it in two aspects of the Secretary of State’s appeal, about which I had made no decision at this stage. The first was the extent to which the expert evidence was flawed, because of the missing evidence. It is a significant step to say that by virtue of that evidence the only answer is that the Claimant’s appeal would have succeeded. The expert report did not consider it. It was not before the Judge.
9. Moreover, there is a second element of the appeal, which is that having been critical of the Claimant’s evidence about his own health conditions, (but not that of his wife), the Judge had been inconsistent in finding that there were not insurmountable obstacles, by reference to paragraph EX.1.(b), but that there were unjustifiably harsh consequences. Assuming, for a moment, that there is an arguable inconsistency, I cannot see how the GP records would mean that the Judge was bound to reach a same decision. This aspect of the appeal relates to a claimed inconsistency in the Judge’s reasons, which the additional evidence does not address. So, whilst potentially relevant to one aspect of the appeal, it does not begin to be probative or relevant to the second part.
10. In any event, the principle that evidence would probably have an important influence on the result ignores the first ground relating to deficiencies in the report. It is a different point to rely on such evidence, to argue that any error was immaterial, because there would have been only the same outcome. I do not accept that the evidence, as summarised, supports that second argument. The GP records may demonstrate the fact of the medical condition, but how that condition may impact on the Claimant’s wife in the event of the Claimant’s removal from the UK is a different matter, and is a nuanced assessment, which presumably was why an expert report was sought.
11. In the circumstances, while the evidence may have an influence on the outcome, this was beside the point in the context of the Secretary of State’s appeal, which is based on the expert having not evaluated the GP records. Even if presumed to be accurate, the evidence could have been adduced before the Judge.
12. The circumstances were not exceptional in the ‘Kabir’ sense to justify the new evidence, which was not before the Judge, being adduced in deciding whether the Judge erred in law. The evidence might be relevant to a remaking, if I decided that the Judge erred in law.
13. For the above reasons, I refused the application.
The Secretary of State’s appeal
Background
14. The Secretary of State appeals against the decision of the Judge, following a hearing on 11th November 2024, in which she allowed the Claimant’s appeal on human rights grounds against the Secretary of State’s decision dated 11th October 2023 to refuse the Claimant leave to remain.
15. In summary, the Claimant is an Albanian citizen born on 18th October 1995, who claimed to have entered the UK illegally on 13th July 2014. He later married his wife, an Australian/Polish national, on 13th May 2021. They claimed to have intended to marry before the Covid lockdown in 2020. They resisted the Claimant’s removal for two separate reasons. The first was said to be that the Claimant claimed that he was trafficked by a criminal gang in Albania, was mistreated and had suffered PTSD as a result; and second his wife, who has leave to be in the UK, has medical issues, the nature of which would be exacerbated, she claimed, either by virtue of her separation from her husband or affect her ability to relocate with him to Albania. It is unnecessary for me to discuss her medical circumstances in any further detail, save to say that there is a claim and a reference to her having been diagnosed with a relevant medical condition prior to leaving Australia in 2019 and that she had also received medical support from a doctor in that country.
16. I turn to the Judge’s findings. The Judge made a detailed assessment of the credibility of the Claimant and his wife. The Judge identified two particular issues, at §4 to §6. The first was whether the Claimant met paragraph EX.1.(b), that is, an exception to the requirement that somebody ought not to be in the UK illegally, as he says he met any other requirements and there are insurmountable obstacles to family life with his wife continuing outside the UK. The second was whether the refusal of leave to remain would result in unjustifiably harsh consequences. The Secretary of State disputed both scenarios in relation to family life and the Judge further recorded that no argument was pursued in relation to private life. The Judge’s focus was on family life and there has been no appeal or cross-appeal against his finding that family life existed, for Article 8 purposes. The Judge correctly identified that the right under Article 8 is a qualified right. The Judge treated both the Claimant and his spouse as vulnerable witnesses and also confirmed that the Claimant was not proceeding with an outstanding out-of-time appeal under Appendix EU, in light of the decision in Celik v SSHD [2023] EWCA Civ 921, albeit as Mr Chakmakjian points out, that was nevertheless an issue in relation to proportionality, by reference to Article 8, as set out in his skeleton argument. Also, and importantly in the Secretary of State’s Review document, the Secretary of State had specifically raised issues about the nature of the medical evidence to the extent that it was relevant to insurmountable obstacles to the partner or spouse pursing family life in Albania. In particular, at §12, the Secretary of State stated that while the Claimant’s spouse may have suffered in the past, there was no evidence to show that she had been treated more recently, no NHS records had been provided and the expert had not had sight of them.
17. At §13 of the Review document, the Secretary of State went on to cite the authority of HA (expert evidence) and the particular emphasis on the requirement that psychiatrists are mindful to acknowledge that fabrication of symptoms can be a real possibility and that GP records may provide a broader picture on a person’s health. In this context, the principle could be applied that the Claimant had failed to provide any GP records or sufficient evidence to show a long-term history of mental ill-health, and that any information or evidence relied on had been raised and postdated the refusal of the Claimant’s application. I should add, in this context, that at the hearing before the judge, although the Claimant himself disclosed GP records in a supplementary bundle, no relevant GP records had been adduced in respect of wife. There was, however, a specific letter in a supplementary bundle, from a person whose credentials and medical expertise is not stated, which refers to the wife’s medical condition being exacerbated by stress and treatment for her condition, but beyond that, nothing else was before the Judge. I bear in mind the Supreme Court authority of TUI UK Ltd v Griffiths [2023] UKSC 48. The medical reports relied upon by the Claimant were clearly in issue, as stated in the Secretary of State’s review, produced before the hearing. The Claimant and the expert had had the opportunity to address the challenge that the report was not underpinned by relevant GP evidence or disclosure of relevant medical records.
18. I summarise the Judge’s findings. The Judge assessed the Claimant’s evidence of his claim of trafficking. At §§16 and 17, the Judge found aspects of the Claimant’s evidence as lacking in credibility. This included his claim of escape from his traffickers in Gloucester after being allowed out alone to buy food, and instead he purchased a ticket and escaped to London; and whether he had told friends and family about connections with traffickers. At §19, the Judge went on to consider the expert medical expert setting out the Claimant’s account. The Judge found that the clinical observation, with little evidence of distress or depression, appeared to be at odds with the expert’s conclusions that the Claimant had PTSD and a severe depressive episode. This was based, the Judge said, on a Patient Health Questionnaire, a Generalized Anxiety Disorder Assessment and an ‘Impact of Events’ scale, all of which were based on self-reporting, which the Judge found hard to accept. At §20, the Judge went on to state:
“I am not satisfied to the requisite standard of proof that the events described by the appellant happened and this leads me to place little weight on this report.”
19. The Judge next considered the Claimant’s spouse, but in contrast found her to be a credible witness. The Judge referred to the Claimant’s spouse’s medical condition for which she received counselling, a diagnosis before the spouse leaving Australia, a discussion around the control and management of that condition and her description of it as credible. The Judge then went on discuss the Claimant’s spouse’s evidence of the impact of separation on her, and the genuineness of her subjective fear that were Claimant were removed, he would be at risk of his traffickers. The Judge found as a fact that the spouse had only been able to manage her illness with the support of the Claimant and that were she separated from him, that it was probable she would face difficulties in managing her condition and that there would be a significant deterioration in it. The Judge concluded at §29 that the description of the illness was consistent with what the spouse had told the medical expert and a period of medical treatment. The Judge was prepared to accept the conclusions of the medical expert who assessed her as being consistent with her current situation. The Judge went on to reach two conclusions. The first, at §30 was that the spouse would not be able to go to Albania on a temporary basis. She had a job, needed to provide financial support to the Claimant if he were returned to Albania, had no connection there and she would, most likely, suffer a deterioration in her medical condition. The Judge considered, nevertheless, in the circumstances of Agyarko v SSHD [2017] UKSC 11 whether there were insurmountable obstacles. The Judge concluded that the couple would not face very significant difficulties in continuing their family life together, which could not be overcome. Family life would be interrupted but nevertheless they would be able to maintain family life by means of social media, WhatsApp calls and the like and family life could be reinstated by a grant of entry clearance. In conclusion, the Judge was not satisfied that they would face insurmountable obstacles if the Claimant were to return to Albania and make an application for entry clearance. The couple did not satisfy paragraph EX.1.(b).
20. Separately the judge went on to consider the test under GEN.3.2 and the impact on the spouse if the Claimant were to return and make an application for entry clearance. The Judge had found that even though he did not accept the Claimant’s account of having been trafficked, the Claimant’s spouse did. Further, while the spouse’s medical condition was under control, it partly through the support of the Claimant and that her condition may well worsen in the event of the Claimant’s removal. Conducting a balancing exercise, the effect on the Claimant’s spouse of the Claimant’s removal would result in unjustifiably harsh consequences, even if it were a temporary separation. Article 8 was engaged and the Judge concluded that the decision to refuse the Claimant leave to remain was disproportionate.
The Secretary of State’s Appeal
21. The Secretary of State appealed against the decision, purportedly on one ground, but in reality, in relation to two distinct aspects. For the sake of convenience, I therefore label these grounds (1) and ground (2).
22. Ground (1) was that the Judge had failed to give reasons or adequate reasons for findings on material matters, in particular the Judge had failed to explain how the expert medical evidence resulted in the Claimant not being believed, but the similarly structured report for the spouse supported her credibility. Having placed little weight on the Claimant’s report and self-reported symptoms, the Judge had failed to explain why the report for the Claimant’s wife, also based on self-reported symptoms, should be afforded significant weight despite the absence of GP records and by reference to the authority of HA (expert evidence). No explanation for failure to provide those records had been provided. The issue had been raised, and the psychological report was deficient in many other respects. The Secretary of State contended, in addition, that the only logical conclusion for the failure to provide relevant medical records was that they did not reflect the expert’s findings. Instead, the only objective medical evidence was a single letter from one person treating of 19th September 2024, which I have already mentioned briefly. The Secretary of State also argued that the Judge made a finding unsupported by the evidence that the Claimant’s spouse was receiving weekly therapy when in fact she only six sessions. The Secretary of State further alleged that the findings went beyond what was supported by the expert evidence. In particular, the spouse’s condition was under control because of emotional support given, but a further finding that the illness may flare up once again and she would be likely to struggle to concentrate. It was unclear how that met the very high threshold of unjustifiably harsh consequences, with such equivocal evidence.
23. Ground (2) was that the Judge’s analysis of unjustifiably harsh consequences in contrast to his analysis of insurmountable obstacles was potentially contradictory and insufficiently explained.
24. Permission was granted on 5th February 2025. There was no Rule 24 reply, and I do no more than summarise the gist of the additional submissions before me before coming on to explain my reasons.
The Secretary of State’s submissions
25. Mr Nappey emphasises the two grounds: the engagement with the expert medical report and in particular the impact on credibility; and the failure to resolve potentially conflicting findings between EX.1.(b) and GEN.3.2.
26. In relation to ground (1), the two reports were structurally identical. Neither had the benefit of any GP records, which had plainly been available as the Claimant’s records were later produced, and the Claimant now sought to adduce his wife’s records in the Rule 15(2A) application. The Secretary of State did not challenge the Judge’s criticism of the Claimant’s credibility. But just as the Judge had not accepted his credibility, there was no reason or insufficient reasons to explain why, consequently, the spouse had been assessed as credible. The Judge had failed to engage with the deficiencies in the report, given the guidance in HA (expert evidence). Moreover, whilst the Claimant’s spouse may have a subjective fear, it was further undermined by the fact her fear was not objectively well-founded. The Judge had not addressed the issue of the spouse’s credibility with appropriate care and had not provided good reasons for his conclusion (contrary to the principles confirmed at §21 of SS (Sri Lanka) v SSHD [2012] EWCA Civ 155.
27. In relation to ground (2), Mr Nappey accepted that the two tests, namely insurmountable obstacles and unjustifiably harsh consequences, were different. However, in this case where the conclusions in relation to the former were so strongly put, it was unclear why the Judge had then reached the conclusion that he had in relation to the second analysis. There was no barrier either to the Claimant or his spouse that could not be overcome. How then, he asked, could that amount to unjustifiably harsh consequences?
The Claimant’s submissions
28. In response, in relation to ground (1), the Judge had explained adequately and was entitled to reach his findings about the spouse’s credibility in contrast to that of the Claimant. That is referred to including at §24, at §27 and §29. The expert medical report was merely consistent with that and there was, for example, no error by reference to Mibanga v SSHD [2005] EWCA Civ 367, because in this case, pieces of evidence pointed in the same direction. It was sufficiently clear why the Judge had believed the Claimant’s spouse. True it was that in the Review document the Secretary of State had raised the issue of HA (expert evidence), but it was also important to understand the limitations of the principles in that case. These principles were not that a medical report should have no weight attached to it because the author had not considered GP records. Similarly, it was not authority for the proposition that the GAD-7 and PHQ-9 assessment tools were of no diagnostic weight at all. Rather, in that case, the expert had reservations about them because of the ability of the person assessed, to give answers to the standard questions, in order to achieve a desired ‘score.’ In this case, where the expertise of the report’s author had not been impugned, the Judge had not erred in law in reaching conclusions based on all of the evidence.
29. Dealing with ground (2), the tests were, as the Secretary of State accepted, different. It was important to focus upon the structure of the Judge’s decision. At §31, the Judge did not say that there were no barriers. The Judge said was that there may well be an interruption to family life for a period of time, which could be reinstated, and the focus was upon the continuation of family life and whether obstacles were insurmountable. That was a different focus from the question, a broader question, of the impact of refusal and whether that was unjustifiably harsh. That in turn was answered by a separate analysis, unchallenged at §30 to §35, namely in relation to the Claimant’s spouse’s medical condition and the impact of her worsening condition. In relation to the further challenge that her subjective fear that her husband had been trafficked was irrelevant, that was incorrect, by analogy to Y & Anor (Sri Lanka) v SSHD [2009] EWCA Civ 362. There was no speculation and no deficiency in the evidence where, as per §28 and §35, the underlying report of the expert at §11.2 had opined on the effect on the Claimant’s spouse. In the circumstances there was no error in the Judge’s decision.
Discussion and conclusions
Ground (2)
30. I deal with ground (2) first. Both representatives accepted that the legal tests are different. I remind myself that the Judge’s phrases should not be considered out of isolation, and it is not for me to cherry pick particular passages of evidence, noting the Court of Appeal’s guidance in Volpi v Volpi [2022] EWCA Civ 464. I am satisfied when the judgment is read as a whole, that the Judge carefully considered different questions: the first in relation to insurmountable obstacles to family life continuing; the second, the unjustifiably harsh consequences, which, as both parties agreed, is a ‘balance-sheet’ style assessment. As §31, when read in its entirely makes clear, family life could continue, albeit even where the couple were separated, because of continued communication via social media. The phrasing of ‘no barrier’ at §33 referred to barriers which could not be overcome, and it was reasonable to expect them to face. That reflects the high test of ‘insurmountable obstacles.’ That is a different assessment from the balancing assessment, under ‘unjustifiably harsh consequences,’ which in turn was explained at §34 to §36 because of the impact on the Claimant’s spouse, because of her medical condition. I do not accept that this amounts to an error of law by the Judge, as contended. I also reject any suggestion that because the Judge had found the Claimant’s husband is not credible in his claim of trafficking, this somehow undermined the Judge’s assessment that the Claimant’s spouse believed that account to be true and that in turn had a subjective but real impact on her medical condition. One reflects a subjective fear which nevertheless may have a genuine impact on a medical condition and, as Mr Chakmakjian rightly submits, means that the subjective fear remains relevant.
Ground (1)
31. Where I do conclude that the Judge erred in law is in relation to ground (1). I bear in mind that all the Judge needs to do is to explain sufficiently the reasons why one party has lost or not. They do not need to recite evidence in detail. I also bear in mind that an expert cannot be criticised in circumstances where a party criticising their evidence has not raised the issue previously (see TUI UK Ltd v Griffiths). I further accept the point that it is possible in the absence of GP evidence, as Mr Chakmakjian points out, to make an assessment of credibility and that HA (expert evidence) is not authority for the proposition that a medical report must be disregarded because GP records have not been provided or that it relies, in part on the two tests in PHQ-9 and GAD-7, merely that there are reservations around the latter and as the Upper Tribunal observed, in HA (expert evidence) that GP records are likely to be directly relevant. Nevertheless, the Judge has failed to explain why, where the Secretary of State expressly referred to the absence of disclosure of GP records, the expert report in conjunction with the Claimant’s spouse’s testimony was regarded as sufficient. True it may be that the Claimant was assessed on her oral evidence as being a credible witness. However here, the Secretary of State had laid her cards on the table. She was not satisfied that there had been appropriate disclosure of GP records which would inform the expert report. That expert report had unquestionably been part of and consistent with the Claimant’s spouse’s witness evidence. To suggest, as Mr Chakmakjian did, that it is possible to separate out the expert report from the witness evidence of the spouse and that because her evidence is to be preferred, any weaknesses in the expert evidence matters not, is to commit the same error which unfortunately, in the absence of a counter appeal nevertheless appears to have infected the Judge’s decision in relation to the assessment of the Claimant’s credibility, namely to disregard or separate out the two strands of evidence when the evidence must be considered together – the so-called ‘Mibanga’ error.
32. The practical difficulty in this case is that there is said to have been a formal diagnosis prior to the Claimant’s spouse coming to the UK from Australia of her particular condition. There is said to be evidence of, and I take judicial notice of the possibility of that condition reoccurring, none of which was for the Judge and all of which could and, as Mr Chakmakjian now accepts, should have been adduced before the Judge. The fact that the Secretary of State raises clearly is a matter that the Judge needed to have addressed and is not satisfactorily resolved at §29 by ‘implication’, as Mr Chakmakjian sought to persuade me.
33. In the circumstances, I am satisfied that the Judge’s assessment of the risk and the effect, and indeed the overall credibility of the Claimant’s spouse (without discourtesy to her), is not safe, and cannot stand. However, as I also canvassed with Mr Nappey, the phraseology at §20 that because the Claimant himself has been disbelieved, little weight has been placed on his report, is something that clearly falls into the ‘Mibanga’ error. Therefore, the critical findings of the Claimant’s credibility are also unsafe and cannot stand.
Notice of Decision
34. The Judge’s decision is not safe and cannot stand. I set it aside, subject to the preserved findings.
Preserved Findings
35. There was no dispute that the couple are in a genuine relationship and that they are married. No other findings are preserved.
Disposal of the proceedings
36. I have considered §7.2.(a) and (b) of Senior President’s Practice Statement and the well-known Court of Appeal authority of AEB v SSHD [2022] EWCA Civ 1512. I bear in mind the nature and scope of necessary fact-finding and whether the effect of the errors has been to deprive either party of a fair hearing. The latter has not been suggested and in relation to the former, although credibility is an important issue, the genuineness of the relationship is not. Rather there are two issues, the issues as to the claimed trafficking insofar as it relates to the Claimant’s mental health issues and the Claimant’s spouse’s mental health issues. Those issues, whilst important, are narrow and specifically when canvassing the views of the representatives, both parties urged me to retain remaking in the Upper Tribunal. I therefore do so accordingly, and I ordered that it be listed on the first available opportunity in person at Field House for three hours. There is no need for an interpreter.
37. Just in terms of the scopes of the appeals I have already discussed with the representatives, it is a human rights appeal, and EX.1.(b) and GEN.3.2 are in issue. Mr Chakmakjian specifically canvassed the question of the couple’s intention to have married but were prevented from doing so during the Covid pandemic. He reiterated that no EUSS appeal was being re-instigated in light of Celik but rather this was a proportionality issue in the light of the couple’s intention to marry. There was no objection for this from Mr Nappey in the context of the proportionality assessment, so this is a matter that may be argued.
Directions on remaking
38. The remaking hearing will be for three hours at Field House, on the first available date.
39. By 9th June 2025, the Claimant’s representatives will file and serve written confirmation that they are ready for the remaking hearing to proceed. In default of compliance with this direction, a case management hearing will be listed. The parties are required to proactively seek assistance from the Tribunal one another if any extension of time in relation to directions is anticipated.
40. Not later than 4pm, 21 days before the resumed hearing, the Claimant’s representatives are to file via CE-File and serve (not via CE-File) a composite, electronic, text searchable, indexed and paginated bundle which shall comprise all of the evidence on which they seek to rely, in particular any additional expert medical reports as to which leave is given (if it were needed) and any written witness statements which shall comprise their evidence-in-chief. No oral examination-in-chief shall be permitted without leave and adequate explanation, so that the witnesses shall be tendered for cross-examination and re-examination only.
41. The Secretary of State shall have leave to adduce any further additional evidence on which she seeks to rely in response not later than 4pm, 14 days before the resumed hearing.
42. The parties shall then exchange and file with this Tribunal, written skeleton arguments 7 days before the hearing.
43. Finally, in relation to composition of the bundle and by way of assistance, only medical information in relation to the medical records, which is necessary for the disposal of the proceedings is required to be disclosed. In doing so, the Tribunal is conscious that matters are of a personal medical nature, so that unless they need to be referred to explicitly in the remaking judgment, they will not be. The Tribunal does not require, unless there are particular areas of dispute, full disclosure of all GP records. Only the medical records which are relevant and necessary for a fair disposal of the proceedings need be disclosed. If the Secretary of State has an issue that there are medical records which have not been adduced, without which it cannot inform a view, it is expected to liaise proactively with the Claimant’s solicitors.
Directions in respect of Lillywhite Williams & Co Solicitors
44. I have already explained why I had concerns about how the situation arose whereby an application to adduce evidence was made part way through the hearing of which I was unaware, for the reasons set out earlier. I emphasise that I make no criticism of Mr Chakmakjian. I also do not make criticism, at this stage, of Lilywhite Williams & Co Solicitors. However, whatever the reason, (and the reason is important) something has gone awry, specifically that documents which were adduced last Friday, were apparently not filed in accordance with CE-File mandation and the application to rely on them did not comply with Rule 15(2A). I am also unclear as to why the application was made so late.
45. Without making any criticism at this stage, (until I have the opportunity to hear an explanation), I direct that the Compliance Officer for Legal Practice of Lilywhite Williams & Co Solicitors shall file and serve a signed witness statement with this Tribunal and with the respondent explaining why, on the face of it, the evidence on which Mr Chakmakjian sought to adduce under Rule 15(2A) had only been presented in the circumstances outlined.
46. Upon receipt and separate from the directions outlined and the hearing, a Judge (possibly Judge Keith) will then consider whether it is appropriate to make further referrals to the relevant regulatory bodies including the Solicitors Regulation Authority. That witness statement shall be filed and served by 4pm, 28 days after the sealed version of these directions is sent to the parties’ representatives. For the avoidance of doubt, nothing in this order shall oblige the COLP to waive legal privilege, which remains that of the Claimant.

J Keith

Judge of the Upper Tribunal
Immigration and Asylum Chamber

27th April 2025