Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001418

First-tier Tribunal No: PA/55372/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

2nd June 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE NEILSON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MMVM
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms S McKenzie, Home Office Presenting Officer
For the Respondent: Mr Sadeghi, Counsel instructed by MRK Solicitors

Heard at Field House on 22 May 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

Introduction

1. The appellant appeals with permission granted on 26 March 2025 against the decision of the First-Tier Tribunal (“the FtT”) given on 10 February 2025 to grant the respondent’s appeal against the refusal of his human rights claim.

2. The appeal came before the Upper Tribunal at an error of law hearing on 22 May 2025. At the hearing I heard submissions from the parties and reserved my decision. For the reasons set out below, I find that there was no error of law in the decision of the FtT and decline to set the decision aside.
3. The FtT made an anonymity order in this appeal and I consider that it is appropriate for that order to continue because of the nature of the events referred to in the proceedings.

Background and FtT Decision
4. The respondent is a national of Sri Lanka born on 1 October 1955. His wife, a dependant on his claim, is also a national of Sri Lanka and was born on 9 May 1957. They entered the UK on 22 May 2022 to visit with their daughter and son-in-law and claimed asylum on 18 July 2022. The respondent’s claim for asylum was based on an alleged fear of persecution arising out of threats made in Sri Lanka against the respondent and his wife from the family of another son-in law.

5. The appellant refused the respondent’s protection and human rights claim in a written decision dated 19 February 2024.

6. The respondent appealed the appellant’s decision to the FtT. Before the FtT the respondent confirmed that he did not seek to pursue his appeal on asylum or protection grounds. The only grounds that the respondent pursued in his appeal before the FtT were Article 3 European Convention of Human Rights (“ECHR”) on medical grounds and Article 8 ECHR on the basis of private or family life. The respondent submitted before the FtT that the Article 3 case was based not just upon depression, severe anxiety, hypertension, high blood pressure and diabetes alone: the claim was also based upon a real risk that respondent and his wife could commit suicide owing to their mental state and subjective fear.

7. The FtT allowed the respondent’s appeal. In particular the FtT was satisfied on the balance of probabilities, that the respondent had made out a prima facie case under Article 3 ECHR which the appellant had failed to rebut (see paragraph 21 of the determination). In addition the FtT determined that the Article 8 ECHR grounds were also made out (see paragraph 23 of the determination).

8. The appellant sought permission to appeal the decision of the FtT. In the IAFT 4 Appeal Form the respondent set out the ground of appeal under section C – Reasons for Appealing as “Making a material misdirection of law – Inadequate reasoning of Article 3 (medical) grounds and application of the relevant test”. Permission to appeal was granted on 26 March 2025.

The error of law hearing
9. There was a preliminary issued raised at the outset by Ms Mckenzie. She submitted that although on the face of it the appeal was an appeal on the Article 3 determination only, in fact by virtue of the terms of sub-paragraph 7 of Section C of the IAFT 4 Appeal Form it was also an appeal against the Article 8 determination. This was on the basis that sub-paragraph 7 highlighted the cost to the NHS of the appellant accessing free treatment – an issue that had no relevance to Article 3 but was relevant to Article 8.

10. This was opposed by Mr Sadeghi. In his submission the grounds of appeal only encompassed an appeal in relation to Article 3 – it did not cover an appeal in respect of the FtT findings in respect of Article 8.

11. I accept Mr Sadeghi’s submission. The grounds of appeal only deal with Article 3 they do not encompass an Article 8 ground of appeal. The determination by the FtT was explicit in dealing with two separate and distinct issues – Article 3 and Article 8. Paragraph 9 of the FtT determination sets out the two separate issues to be considered. Paragraph 10 of the FtT determination sets out the legal test in relation to Article 3 and paragraph 11 and 12 of the FtT determination set out the legal test in relation to Article 8. Paragraph 21 of the FtT determination deals with the findings on Article 3 whereas paragraph 23 of the FtT determination sets out the findings on Article 8 – in particular paragraph 23 commences “To the extent that I am wrong on article 3 ECHR …. I would uphold the appeal on Article 8 grounds.”

12. If the grounds of appeal had been intended to cover both Article 3 and Article 8 then that should have been expressly stated. The grounds of appeal are quite specific in dealing with only one ground of appeal, expressly stated to be “Making a material misdirection of law – Inadequate reasoning of Article 3 (medical) grounds and application of the relevant test”. The grounds of appeal in section C of the IAFT 4 Appeal Form then set out eleven numbered sub-paragraphs under that heading – none of which expressly reference Article 8. In the grant of appeal dated 26 March 2025 it is only granted on one single ground – being the challenge to Article 3.

13. The importance of clearing setting out the grounds of appeal has recently been considered by the Upper Tribunal in Rai and DAM (grounds of Appeal; Limited Grant of Permission) 2025 UKUT 00150 (IAC).

14. Whilst the appellant sought to persuade me that the terms of sub-paragraph 7 were sufficient to bring in an appeal on Article 8 I do not agree. An appeal on the Article 8 findings in the FtT determination would have required to have been clearly and succinctly identified in the grounds of appeal. That has not been done.

15. The appellant did not seek leave to amend the ground of appeal. Ms McKenzie submitted that based upon the authority of SL (St Lucia) -v- SSHD 2018 EWCA Civ 1894 if I were to decide that there was an error of law in respect of Article 3 then that would fatally undermine the Article 8 case, which would fall away. Mr Sadeghi did not accept that proposition. In his view based upon the facts found here by the FtT there were two separate and distinct grounds in Article 3 and Article 8. In his submission even if there was a material error of law in the way in which the FtT dealt with Article 3 then that still left Article 8 as a free-standing ground, not subject to appeal, and accordingly the appellants appeal against the FtT determination must fail.

16. In determining this appeal there were two issues. Firstly, if there was a material error of law in the Article 3 case did that also fatally undermine the Article 8 case? If not, the appeal will fail. Secondly and in any event was there a material error of law in the approach taken by the FtT to Article 3? If not, the appeal will fail.

Discussion and Conclusions

Does a successful appeal on Article 3 undermine Article 8?

17. Ms McKenzie relied upon SL (St Lucia) and in particular the reference in that case to GS (India) -v- SSHD 2015 EWCA Civ 40 as authority for the proposition that if a medical claim failed under Article 3 then it could not succeed as a separate claim under Article 8. In her submission an error of law in respect of the Article 3 claim would automatically mean that the Article 8 claim would fall away.

18. In a narrow sense that may be correct – but only where the sole ground for pursuing the Article 8 claim is based on the same medical ground as pursued under Article 3. It is, in my view, clear from the wider discussion of the relationship between the Article 3 and Article 8 criteria at paragraphs 22 to 27 of the judgment by LJ Hickinbottom in SL (St Lucia) that for an Article 8 claim to proceed based upon medical grounds (that were insufficient to succeed as an Article 3 claim) there must be some separate or additional factual elements that bring it within a wider Article 8 case. LJ Hickinbottom makes clear at both paragraphs 25 and 27 in SL (St Lucia) that where the Article 8 claim is based upon other factors in addition to the medical grounds pursued under Article 3 then the approach to the Article 3 claim and the approach to the Article 8 claim should be quite distinct.

19. It is clear from the determination of the FtT in this case that the Article 8 case stands separate and distinct from the Article 3 case. Whilst the medical grounds that were part of the Article 3 claim are referenced in the FtT decision on Article 8, the medical grounds are additional to other facts relied upon by the FtT to establish the Article 8 case. At paragraph 23 of the FtT determination there is reference to the relationships with the respondents children and grandchildren as establishing both private life and family life. This is not a case where the Article 8 grounds proceed solely on the same basis as the Article 3 grounds. Accordingly, I do not consider that this is a case where an error of law in relation to the approach to the Article 3 case would automatically mean that the Article 8 case would fall. It is a case where, following the comments from LJ Hickinbottom in SL (St Lucia) it is necessary to treat the Article 3 and Article 8 cases quite separately. As there is no separate appeal on the Article 8 case I am bound to reject the appeal by the appellant as the FtT determination proceeded on the basis of both Article 3 and Article 8 claims being upheld.

Is there a material error of law in the FtT approach to Article 3?

20. In light of my decision above it is not strictly necessary for me to determine the issue in relation to error of law in respect of Article 3. However, as the parties made submissions on the issue I shall briefly deal with it.

21. Ms McKenzie in her submissions accepted that she was no longer maintaining an argument that the FtT incorrectly set out the test to be applied in respect of Article 3. She accepted that in paragraph 10 of the determination that the FtT had correctly set out the test per Paposhvili -v- Belgium 2017 Imm AR 867 and AM (Zimbabwe) 2020 UKSC 17. Her concern was with the evidence that lay behind the conclusions reached by the FtT in paragraph 21 of their determination.

22. In particular Ms McKenzie submitted that (i) with regard to paragraph 21(a) of the FtT determination there had been a failure to set out the reasons behind the assessment that the respondent was a seriously ill person; (ii) that there was a conflict in the FtT finding at paragraph 16 of the determination that the credibility of the respondent and his wife was not challenged by the appellant and the recognition at paragraph 17 of the determination that the respondent and his wife were not fit to be cross-examined; and (iii) that in relation to the test of absence of appropriate treatment in the receiving country that the FtT had relied upon the “inadequacy” of the treatment rather than its absence [paragraph 21(b)] and at paragraph 20 of the determination the FtT had applied a test of “willingness” to undertake the treatment – which is not part of the test.

23. In response Mr Sadeghi stood by his skeleton argument and submitted that there was evidence to support the FtT determination on “seriously ill person”; that the two witnesses who gave evidence were found to be credible and finally that the FtT made a proper assessment on the issue of medical treatment in Sri Lanka.

24. In considering the points made by Ms McKenzie I have borne in mind the principles set out in Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201, at [26], (i) the Upper Tribunal should not rush to find an error of law simply because it might have reached a different conclusion on the facts or expressed themselves differently; (ii) where a relevant point was not expressly mentioned by the First-Tier Tribunal, the Upper Tribunal should be slow to infer that it had not been taken into account; (iii) when it comes to the reasons given by the First-Tier Tribunal, the Upper Tribunal should exercise judicial restraint and not assume that the First-Tier Tribunal misdirected itself just because not every step in its reasoning was fully set out; and (iv) it is of the nature of assessment that different tribunals, without illegality or irrationality, may reach different conclusions on the same case. The mere fact that one tribunal has reached what might appear to be an unusually generous view of the facts does not mean that it has made an error of law.

25. In relation to the submission that there was a failure to set out the reasons behind the finding that the respondent was a seriously ill person I note that the FtT do state in the determination that [paragraph 21] they have taken into account both his physical and mental health and his level of dependency on his daughter and son-in-law. The FtT had the benefit of the psychiatric reports [paragraph 17] and they found the two witnesses who gave evidence to be credible. Whilst the FtT do not go into detail I am conscious that the FtT heard from the witnesses and had the psychiatric reports before them. There were also additional medical records in the supplementary bundle that the FtT had regard to [paragraph 20]. It was a matter for the FtT to come to a view on the evidence that was before it. I cannot see any error of law in their determination that the respondent was a seriously ill person.

26. In relation to the conflict on the position of the respondent and his wife I do not consider that to be a material issue. The respondent and his wife did not give evidence [see paragraph 7 of the determination]. The only issues regarding credibility related to the two witnesses who did give evidence and who were available to be cross-examined. It was their credibility that mattered for the purposes of the FtT determination.

27. Finally on the issue of the FtT referencing both the “inadequacy” of the treatment and the “willingness” of the respondent to undertake any treatment in Sri Lanka I do not consider that the use of this language in the determination represents an error of law. The appellant accepts that the FtT sets out the correct test to be applied at paragraph 10 of the determination. The test covers both absence of appropriate treatment in the receiving country or the lack of access to such treatment. The inadequacy of the treatment may amount to absence of appropriate treatment and depending upon the circumstances both “willingness” and the “inadequacy” of the treatment may have some relevance to the issue of access. In any event it is clear from paragraph 21(b) of the determination that the FtT’s determination was based upon an inability to access appropriate treatment upon return to Sri Lanka.

Conclusion

28. I am satisfied that the Article 3 and Article 8 grounds set out by the FtT are separate and distinct grounds. I reject the submission made by the appellant that were I to overturn the decision on Article 3 then the Article 8 ground would also be impugned and incapable of standing by itself. As there is no appeal in respect of Article 8 this appeal must fail. In any event I do not find that there was any error of law in respect of the Article 3 reasoning by the FtT.

Notice of Decision

The decision of the First-tier Tribunal did not involve an error of law. The Secretary of State’s appeal is dismissed.

S NEILSON
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
30.05.25