Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001257

First-tier Tribunal No: HU/57709/2023
LH/04971/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 11th of September 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE HARIA

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

CJ
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr J Nappey Senior Home Office Presenting Officer
For the Respondent: Mr Burrett of Counsel instructed by Thames Hill Solicitors.

Heard at Field House on 7 July 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
This is an appeal by the Secretary of State. For ease of reference, I refer to the parties in the remainder of this decision as they were before the First-tier Tribunal.
Anonymity
1. The First-tier Tribunal Judge (“the Judge”) granted an anonymity order in this appeal. Mr Nappey for the respondent relying on Cokaj (anonymity orders: jurisdiction and ambit) [2021] UKUT 0202 (IAC) applied for the anonymity order to be set aside on the basis that the anonymity order was not justified. Mr Nappey submitted that the reasons given by the Judge for making an anonymity order do not justify a departure from the principle of open justice. Mr Burrett for the appellant submitted that the appellant suffers from a mental health condition and the anonymity order should be preserved.
2. I have taken into account the starting point for a consideration of anonymity orders is the principle of open justice. I weigh up the competing interest of this appellant under Articles 3 and 8 of the ECHR. I acknowledge that the revelation of a medical condition will not normally require the making of an anonymity order. In this case the appellant claims she has suffered FGM and I find that protection from disclosure of the intimate and sensitive details of her private and family life in this case because of her vulnerability and her mental health condition, outweighs the principle of open justice and an anonymity order is appropriate.
Background
3. The respondent appeals with permission against the decision of the Judge (allowing the appellant’s appeal under Articles 3 and 8 ECHR.
4. The appellant a national of Sierra Leone had appealed against the respondent’s decision dated 17 June 2023 refusing her human rights claim.
5. The appellant had applied for leave to remain in the United Kingdom (UK) based on her private life. The appellant had sought the respondent’s consent to consider FGM and Article 3 medical grounds as new matters. The respondent refused consent to consider FGM but granted consent to consider Article 3 medical grounds.
6. In brief, the appellant claims that her removal from the UK would be in breach of Article 3 due to her deteriorating mental health and the lack of facilities and treatment in Sierra Leone, alternatively the appellant relies on there being very significant obstacles to her integration on return to Sierra Leone or a breach of Article 8.
The grounds of appeal
7. In summary, the grounds seeking permission contend the Judge erred as follows:
Ground 1: at [33] by failing to apply the guidance in HA (expert evidence; mental health) Sri Lanka [2022] UKUT 00111 (IAC) in the assessment of the expert psychiatric report of Dr Galappathie.
Ground 2: at [50] by failing to properly apply the test set out in AM (Zimbabwe) v SSHD [2020] UKSC 17 in concluding that the appellant would experience a "rapid and irreversible decline in her state of health resulting in intense suffering or to a significant reduction in life expectancy" if she was removed to Sierra Leone when there is no evidential basis to reach such a conclusion.
Ground 3: at [51] by failing to properly undertake an Article 8 proportionality balancing exercise weighing the competing factors outlined in section 117B of the Nationality, Immigration, and Asylum Act 2002; by employing Article 8 as a “general dispensing power” contrary to the finding of the Supreme Court in Patel and Others v SSHD [2013] 3 WLR 1517 UKSC 72 and by failing to undertake the 5-stage test outlined in R (Razgar) v. SSHD ([2004] UKHL 27).
Permission to appeal
8. Permission to appeal was granted on all grounds by First tier Tribunal Judge Stevenson on 17 March 2025, who considered ground 1 to be the weakest and grounds 2 and 3 to be arguable.
Rule 24 Response
9. Mr Burrett relied on the rule 24 response which in outline submits the following:
Ground 1: Dr Galappathie in his expert report was entitled to conclude the appellant is suffering from a moderate depressive disorder and a generalised anxiety and the findings made by the Judge at [35] were rationally open to the Judge on the evidence.

Ground 2: The Judge engages and sufficiently applies the test in AM and concludes on the evidence that the appellant would experience a “rapid and irreversible decline in her state of health resulting in intense suffering or to a significant reduction in life expectancy”.

Ground 3: The Judge conducted a balancing exercise by considering all relevant factors within the decision. It is submitted that the arguments are an attack on the form rather than the substance of the Decision.
Upper Tribunal hearing
10. The appeal came before me on 7 July 2025 for a face-to-face hearing. The parties were represented as indicated above.
11. Mr Nappey confirmed at the outset of the hearing that the respondent was pursuing all three grounds and Mr Burrett confirmed that all three grounds were opposed.
12. At the end of the hearing, I reserved my decision. I now give my decision and reasons.
Error of Law Decision
13. Before proceeding to consider the grounds in detail, I remind myself of the many authorities on the approach an appellate court or tribunal should take when considering findings of fact reached by a first instance judge. A recent summary of the well settled principles can be found in Volpi & Anor v Volpi [2022] EWCA Civ 464. When examining the reasons for the decision given by a First-tier Tribunal Judge, the Upper Tribunal should not assume too readily that the Judge misdirected him/herself simply because not every step the reasoning is fully set out. This is the guidance given by the Court of Appeal at paragraph [77] of KM v SSHD [2021] EWCA Civ 693.
14. I have exercised that restraint and considered the Judge’s decision holistically.
Ground 1
15. Ground 1 is in essence a challenge to the application by the Judge of the guidance given in HA at headnote paragraphs 4 & 5.
a. It is helpful to set out paragraphs (3)-(5) of the headnote in HA which are in these terms:

“(3) It is trite that a psychiatrist possesses expertise that a general practitioner may not have. A psychiatrist may well be in a position to diagnose a variety of mental illnesses, including PTSD, following face-to-face consultation with the individual concerned. In the case of human rights and protection appeals, however, it would be naïve to discount the possibility that an individual facing removal from the United Kingdom might wish to fabricate or exaggerate symptoms of mental illness, in order to defeat the respondent’s attempts at removal. A meeting between a psychiatrist, who is to be an expert witness, and the individual who is appealing an adverse decision of the respondent in the immigration field will necessarily be directly concerned with the individual’s attempt to remain in the United Kingdom on human rights grounds.
(4) Notwithstanding their limitations, the GP records concerning the individual detail a specific record of presentation and may paint a broader picture of his or her mental health than is available to the expert psychiatrist, particularly where the individual and the GP (and any associated health care professionals) have interacted over a significant period of time, during some of which the individual may not have perceived themselves as being at risk of removal.
(5) Accordingly, as a general matter, GP records are likely to be regarded by the Tribunal as directly relevant to the assessment of the individual’s mental health and should be engaged with by the expert in their report. Where the expert’s opinion differs from (or might appear, to a layperson, to differ from) the GP records, the expert will be expected to say so in the report, as part of their obligations as an expert witness. The Tribunal is unlikely to be satisfied by a report which merely attempts to brush aside the GP records.”
16. The respondent’s challenge under Ground 1, as pleaded and as amplified in the oral submissions of Mr Nappey, focuses on subparagraph (5) of HA. What is said in substance is that this was a case where the psychiatrist was ‘brushing aside’ the GP records, reaching his own conclusion and the Judge erred in attaching weight to the report. Mr Nappey submitted that this is compounded by the fact that the GP records were not provided to the Judge or the respondent as was pointed out to the First-tier Tribunal in the respondent’s review (page 389 para 44 of the Error of Law Bundle). Mr Nappey pointed out that although the rule 24 response asserts there was a lack of GP records before Dr Galappathie, this is inconsistent with paragraph 10 of Dr Galappathie’s report which states he had the appellant’s GP records.
17. Subparagraph (3) of the headnote in HA explains why it is important that a psychiatrist who is not otherwise treating an appellant should have regard to GP records, the value of which are described at subparagraph (4). The expectation that the GP records will be engaged with, and that such engagement will be demonstrated in any expert report, is articulated in subparagraph (5). That is the expectation irrespective of any difference of opinion that may exist. Where the opinion of the expert differs from the GP records there is an expectation that the expert will say so.
18. The Judge at [21] considers Dr Galapathie’s qualifications and having considered the matters raised by the respondent in the review, the Judge finds Dr Galapathie has the expertise to provide a psychiatric report. The Judge notes at [22] that Dr Galapathie had regard to the documents listed in the report which included the appellant’s GP records. The examination was conducted by a video call and that he considered several sources in coming to his conclusions. At [23] the Judge notes Dr Galapathie explains the reason the appellant’s GP records do not support a diagnosis of depression or generalised anxiety is that she had not previously had a detailed psychiatric assessment such as the one, he had been able to conduct. This is not brushing aside the GP records it is having regard to the GP records and engaging with them noting that there was no record of a detailed psychiatric assessment. At [26] the Judge notes that Dr Galapathie indicates that the death of the appellant’s husband and the impact of social stigma in relation to her infertility and her account of experiencing FGM would have made her vulnerable to developing mental health problems. The respondent does not criticise Dr Galapathie’s assessment of the appellant’s mental health.
19. The Judge is clearly aware of the respondent’s position that the tribunal is better placed than the Dr Galapathie to reach a balanced finding as to the appellant’s mental health as the Judge sets this out at [32]. The Judge notes Dr Galappathie specifically states his conclusions are not in accordance with the GP records and that it is not clear whether the appellant has seen her GP about her mental health.
20. The Judge at [33] rejects the respondent’s position and accepts the conclusions in Dr Galappathie’s report on the basis that Dr Galappathie provides an explanation as to why his conclusions are not being in accordance with the GP records. The Judge considers there to be no doubt that Dr Galappathie has the relevant qualifications to provide a psychiatric report and the fact that he spent only an hour and a half with the appellant does not detract from his findings. At [34], the Judge considers the article provided by the respondent in relation to a pervious unconnected appeal where Dr Galappathie’s opinions were not accepted but notes that Dr Galappathie specifically addresses this issue in his report and the Judge finds that the fact his evidence was not accepted in another case does not prevent the Judge giving it weight in this case.
21. Although the Judge does not mention HA in the decision the guidance was clearly in his mind and as such the premise of Ground 1 that the Judge fails to consider the guidance in HA is not made out.
22. For the reasons given I am satisfied the Judge gives adequate and sustainable reasons for the weight attached to Dr Galapathie’s psychiatric report. I find that Ground 1 has not been made out.
23. Ground 2
24. This is a challenge to the failure by the Judge to sufficiently engage and apply the test in AM concluding that the appellant would experience a "rapid and irreversible decline in her state of health resulting in intense suffering or to a significant reduction in life expectancy" if she was removed to Sierra Leone.
25. The Judge at [ 41] recognises that the key test in Article 3 medical claims is set out in AM. It is helpfully broken down by the Upper Tribunal in AM (Art 3; health cases) Zimbabwe [2022] UKUT 00131 as follows (headnote 1 and 4 and [22-23] and [28]):
“In Article 3 health cases two questions in relation to the initial threshold test emerge from the recent authorities of AM (Zimbabwe) v SSHD [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?”
“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”
26. The jurisprudence above sets out a three-stage test. It is only once the appellant has established a prima facie case that she is a seriously ill person that the second and third parts of the test are to be considered.
27. The thrust of the respondent’s challenge is that although the Judge states he takes account of the AM, the Judge fails to apply the first part of the initial threshold test and fails to consider and resolve whether the appellant is a seriously ill person.
28. At the hearing Mr Nappey, expanded on the grounds pleaded and submitted that not only did the Judge fail to apply the first part of the initial threshold test but the Judge also fails at [50] to apply the second part of the test as there was no evidential basis on which to find the appellant would suffer a serious, rapid and irreversible decline in her state of health if she were removed to Sierra Leone.
29. Mr Burrett submitted that the Judge having given weight to the report of Dr Galapathie and his diagnosis, it is implicit that the Judge finds the appellant is a seriously ill person such that the first part of the initial threshold test is met.
30. Nowhere in the decision does the Judge expressly address the question of whether the appellant has shown that she is a “seriously ill person”. This cannot be inferred from the weight given by the Judge to Dr Galapathie’s report and the acceptance of the diagnosis that the appellant suffers from generalised anxiety disorder and presents with severe symptoms of anxiety. A person with such a diagnosis is clearly ill but the issue is whether the person is seriously ill. The Judge at [43] states the medical evidence is that the appellant is suffering from mental health problems and does not appear to be receiving treatment on the basis that she does not want to take anti-psychotic medication. It is unclear why the appellant’s objection to undergoing any treatment is on the basis that she would be required to take anti – psychotic medication given that Dr Galapathie’s diagnosis is that she suffers from a recurrent depressive disorder, current episode moderate without psychotic symptoms (my emphasis) and that she suffers from a generalised anxiety disorder. At paragraph 83 of his report Dr Galapathie states that the appellant will benefit from ongoing follow up by her GP and as she wishes to avoid antidepressant medication she would benefit from psychological therapy to address her depression and anxiety.
31. The Judge proceeds to consider the second and third parts of the test but errs as he does so without first determining whether the appellant is a seriously ill person.
32. I find the Judge errs as asserted in Ground 2. I find that this is a material misdirection in law on a key finding in relation to Article 3.
Ground 3
33. The main complaints of this ground are that the Judge employed Article 8 as a “general dispensing power”, the Judge failed to undertake the 5 -stage test outlined in R (Razgar) v SSHD [2004] UKHL 27 and the Judge failed to undertake a proportionality balancing exercise as required by section 117B of the Nationality Immigration and Asylum Act 2002.
34. Mr Nappey for the respondent expanded on the grounds and responded to the Rule 24 response from the appellant and submitted that in addition to matters raised in the grounds, the Judge does not address the issue of very significant obstacles and does not apply the correct test.
35. Mr Burrett whilst acknowledging the Judge does not refer to “very significant obstacle to integration” submitted that the respondent’s criticisms are about the form of the decision rather than the substance because all the relevant factors were recognised by the Judge.
36. The decision records the issues in dispute at [8] as follows:
“The parties agree that I must resolve the following factual disputes about the
appellant's ability to meet the requirements of immigration rules:
(a) The Appellant's removal to Sierra Leone would expose her to treatment
contrary to Articles 3 and 8 of the ECHR.
(b) The Appellant will face very significant obstacles on return thereby breach her
rights under Article 8 ECHR.”
37. It appears from the above that there may have been some confusion as to the precise issues to be determined and whether the issues stem from a provision of the Immigration Rules, Article 3 or Article 8. The issues in dispute seem to have been taken directly from the ASA and respondent’s review. I acknowledge that the fact that the decision may be expressed differently or more clearly is not sufficient for there to be an error of law. However, in this instance the imprecise formulation of the issues seems to have contributed to the Judge’s lack of findings on a key issue, that being whether the appellant meets the requirement of paragraph 276ADE(1)(vi) of the Immigration Rules on the basis that there would be very significant obstacles to the appellant’s integration on return to Sierra Loene.
38. I find the Judge failed to apply the relevant test as set out in Kamara [2016] EWCA Civ 813 and failed to make any findings on whether the appellant would face very significant obstacles on return to Sierra Leone. Instead, the Judge having concluded his findings on Article 3 at [50] proceeded to make findings on Article 8 stating that “…there are compelling circumstances which would make the appellant’s removal unduly harsh.”.
39. It may be that the Judge relied on the findings made in relation to Article 3 to support a finding that there would be very significant obstacles to the appellant’s integration on return to Seirra Leone. In TZ (Pakistan) v SSHD [2018] EWCA Civ 1109, the Court of Appeal held that an ability to satisfy the Immigration Rules will be “positively determinative “of an individual’s Article 8 claim, provided that private and/or family life exists: [34]. A finding that the appellant met the Immigration Rules cannot be inferred by reading the decision holistically, it needs to be stated explicitly.
40. The Judge at [51] seeks to make findings on Article 8 in the alternative stating:
“…Even if I were incorrect in relation to my findings under article 3 for the reasons outlined above, I am entirely satisfied thar there are compelling circumstances which would make the appellant’s removal unduly harsh. I am not satisfied that any considerations under section 117B will significantly affect those findings, and I am satisfied that there would be no public interest in the removal of the appellant given her current situation.”.
The appellant’s current situation includes her mental health which the Judge considers is such that her removal to Sierra Leone would breach of Article 3. However, since, I have found that the Judge erred in the findings in relation to Article 3, this error inevitably infects the findings on Article 8.
41. I acknowledge that the Judge incorporates his findings made at [43] to [50] when undertaking the Article 8 balancing exercise at [52] as the Judge refers to the “...above factors in favour of the appellant and balancing these against the respondent’s legitimate aim of the maintenance of immigration control”. In the preceding paragraphs the Judge considers a range of factors such as the appellant’s age, her mental health, the support she has from church members and her GP in the UK, the lack of any meaningful support from her extended family in Sierra Leone, that there is only one psychiatric hospital and there are a limited number of trained doctors in Seirra Leone. These factors are balanced against the public interest in the appellant’s removal and the maintenance of immigration control.
42. However, although the Judge identifies factors which would be relevant to the proportionality balancing exercise under Article 8, the Judge in this instance fails to first determine whether Article 8(1) was engaged and then fails to carry out an adequate and structured assessment of Article 8 (as required by in Razgar).
43. I find Ground 3 is made out.
Disposal
44. There was no dispute between the parties that, if I found there to be an error in the Judge’s assessment of Article 3, it was material to the consideration of Article 8 and the appeal should be remitted to the First-tier Tribunal.
45. Given the extent of material errors within the Judge’s decision, I find it necessary to set aside the whole decision without any preserved findings. For that reason, whilst I have discretion to retain the re-making in the Upper Tribunal, I find that the extent of fact-finding means that it is necessary to remit the appeal to the First-tier Tribunal for the decision to be re-made pursuant to section 12(2)(b)(i) of the 2007 Act.
Notice of Decision
The decision involved the making of errors of law.
The decision is to be re-made by any judge of the First-tier Tribunal other than the Judge.

N Haria
Deputy Upper Tribunal Judge Haria
Immigration and Asylum Chamber

29 August 2025