Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001784

First-tier Tribunal No: PA/59399/2023
LP/06202/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 22 October 2025

Before

UPPER TRIBUNAL JUDGE HOFFMAN

Between

SMD
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr N Aghayere, legal representative instructed by Lawland Solicitors
For the Respondent: Mr E Terrell, Senior Home Office Presenting Officer

Heard at Field House on 29 September 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
1. The appellant, who is a citizen of Bangladesh, appeals against the respondent’s decision dated 11 October 2023. In that decision, the respondent had refused both the appellant’s asylum and human rights claims. In a decision promulgated on 28 February 2025, the First-tier Tribunal dismissed the appellant’s appeal in respect of both the asylum and the human rights claims. However, in a decision dated 24 July 2025, I found that the First-tier Tribunal judge had made a material error of law by failing to make any findings in relation to the appellant’s medical evidence submitted in support of his human rights claim. I therefore set aside the decision of the First-tier Tribunal, preserving the judge’s findings in relation to the appellant’s asylum claim. A copy of the error of law decision is appended to this decision.
2. The purpose of this decision, therefore, is to consider whether the appellant’s removal from the UK would be in breach of the UK’s obligations under Article 3 of the European Convention on Human Rights (“ECHR”) on medical grounds and/or would lead to a disproportionate interference with the appellant’s right to a private life under Article 8 ECHR. For the reasons set out below, I have decided that the appellant’s removal will not breach his human rights.
Anonymity
3. The First-tier Tribunal made an order for anonymity and no application has been made to set that aside. In maintaining the order for anonymity, I have taken into account the strong public interest in open justice. However, in this case it is outweighed by the appellant’s interests, as his claim initially related to international protection on the basis of his political opinion.
Background
4. The background to the case is set out at [3] and [4] of the error of law decision and is not therefore repeated here.
The hearing
Issues in dispute
5. The issues in dispute are as follows:
a. Whether the appellant’s medical conditions mean that his removal to Bangladesh would breach Article 3 ECHR.
b. Whether there are any very significant obstacles to the appellant re-establishing his private life in Bangladesh for the purpose of the Immigration Rules.
c. Whether the appellant’s removal would breach his right to a private life as protected by Article 8 ECHR.
Evidence
6. I had before me the following documents:
a. The 349-page consolidated bundle prepared for the error of law hearing that contained the appellant’s and the respondent’s bundles from the First-tier Tribunal appeal.
b. The appellant’s 15-page updated medical evidence bundle.
c. The appellant’s supplementary skeleton argument dated 22 September 2025.
7. I also heard evidence from the appellant who adopted the contents of his witness statement dated 21 February 2024. Despite my having issued directions for the appellant to serve up-to-date evidence, he had not provided an up-to-date witness statement. This necessitated Mr Aghayere asking the appellant questions in evidence-in-chief regarding the current state of his medical conditions. The appellant was then cross-examined by Mr Terrell. There was no re-examination. The appellant’s evidence is recorded in the record of proceedings and is not rehearsed here except where it is necessary to do so.
Legal Framework
8. In relation to Article 3 ECHR medical cases, an appellant must prove that they are “a seriously ill person” and, if so, that there are substantial grounds for believing that they would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of such treatment, of being exposed to a serious, rapid and irreversible decline in health leading to intense suffering or death, or to a significant reduction in life expectancy: see AM (Art 3; health cases) Zimbabwe [2022] UKUT 00131 (IAC); and AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17.
9. In respect of the Article 8 ECHR claim, that right is qualified. The appellant must establish on the balance of probabilities the factual circumstances on which they rely and that Article 8(1) is engaged. If it is, then I have to decide whether the interference with the appellant’s right is justified under Article 8(2). If an appellant does not meet the Immigration Rules, the public interest is normally in refusing leave to enter or remain. The exception is where refusal results in unjustifiably harsh consequences for the appellant or a family member such that refusal is not proportionate. I take into account the factors set out in s.117B Nationality Immigration and Asylum Act 2002 (“the 2002 Act”) and balance the public interest considerations against the factors relied upon by the appellant.
Findings – Remaking
The Article 3 medical claim
10. According to para 5 of his supplementary skeleton argument, the appellant claims that he suffers from a number of serious illnesses:
a. Tuberculosis;
b. Left vagal nerve schwannoma;
c. Nasal polyp;
d. Scarred macula; and
e. Angina pectoris.
11. As it transpired during evidence-in-chief, the appellant has been successfully treated for tuberculosis and, consequently, Mr Aghayere accepted that it is no longer an issue in the appeal.
12. With regards to the schwannoma, which is a benign tumour on the appellant’s neck, the appellant’s oral evidence was that he is attending hospital appointments in relation to this and that doctors were deciding whether to remove it because an operation might damage his vocal cords. However, Mr Aghayere conceded that there was no evidence before the Tribunal that this is a life-threatening condition. In fact, there is no evidence from any specialists treating the appellant as to treatment or prognosis in relation to this condition. Despite almost two years having gone by since the schwannoma was identified and a year having passed since the First-tier Tribunal hearing, the appellant could reasonably have been expected to provide up-to-date evidence on this condition. But despite having been given the opportunity to file new evidence following the error of law decision, his updated medical evidence bundle contains little more than his GP records (which simply refers to the schwannoma as being an active problem) and some appointment letters from the Barts Health Ear Nose and Throat Service (ETS). I therefore find that the appellant has failed to prove that this condition is serious.
13. According to the appellant’s evidence, his nasal polyp has resulted in his nose being bunged up and he said that he makes a very loud snoring sound that can interrupt his sleep. He explained that this condition was under investigation and that he was soon due to attend hospital so that he could be monitored overnight. While Mr Aghayere submitted that this was a serious condition that might be linked to the schwannoma, he was unable to point to any medical evidence before the Tribunal that supported either contention. The only evidence adduced by the appellant in relation to this condition are appointment letters from the ETS. I therefore find that the appellant has failed to prove that this condition is serious.
14. Mr Aghayere also submitted that the scarred macula was serious and, left untreated, would be degenerative. But, again, he was unable to point to any medical evidence that supported his assertion. The only evidence before me is a letter from Moorfields Eye Hospital dated 5 August 2025 which says that the appellant has a left macular scar of unknown aetiology along with his eye examination result from his opticians dated 22 April 2025. Nowhere in these documents does it say that the scarred macula is degenerative or serious. Nor is there any indication that the appellant is receiving or requires treatment for this condition. I therefore find that the appellant has failed to prove that this condition is serious.
15. Finally, the appellant suffers from angina. I take judicial notice of the fact that this is a serious medical condition although there is insufficient medical evidence before me to establish that the appellant is “seriously ill” for the purposes of Article 3. However, even if I was to accept that the appellant is “seriously ill”, his angina is managed through medication: the appellant has been prescribed aspirin, atorvastatin, bisoprolol and glyceryl trinitrate spray. As Mr Terrell submitted, the appellant did not claim in cross-examination that this medication would be unavailable to him in Bangladesh. Instead, he claimed that the quality of the medication available there was not as good as that available in the UK. That, I find, is not sufficient to meet the AM (Zimbabwe) test. In closing submission, Mr Aghayere argued that the appellant would be unable to access medication or treatment for any of his conditions in Bangladesh because it would be effectively unavailable to him because it was too expensive or only available in certain parts of the country, such as Dhaka. However, no country information was provided by the appellant and to the extent that Mr Aghayere made reference to the respondent’s Country Policy Information Note Bangladesh: Medical treatment and healthcare (Version 2.0; July 2022) (“the CPIN”) he was unable to refer to any specific paragraphs within it.
16. I have had regard to section 5 of the CPIN which says that the National Health Foundation of Bangladesh “…provides free service to 30% poor patients and all investigations and treatments are done at lower charges…than other hospitals”: see para 5.1.1. Atorvastatin and bisoprolol are available, at least privately: see para 5.1.6. While Mr Aghayere submitted that the appellant could not afford private treatment, I am not satisfied that this has been proven. First, there is no evidence before me as to how much the medication and treatment would cost in Bangladesh. Second, as Mr Terrell submitted, the appellant’s evidence was that his family in the UK pay for his prescriptions in this country. While the appellant claimed that they would not assist him if he left the country, I am not satisfied that it is credible that having supported him for so long, his cousins would then withdraw support if he returned to Bangladesh and was in need. Third, as Mr Terrell also submitted, the appellant did not claim that his health conditions prevented him from working and there is no reason to believe that the appellant would be unable to find work for himself on return to Bangladesh to help him pay for his medical treatment. In reaching that finding, I have taken into account that before coming to the UK, the appellant owned his own stationary business in Bangladesh. While Mr Aghayere argued that it would be difficult for the appellant to find work or open a new business having been out of the country for so many years, I am not persuaded on the evidence before me that the appellant would be unable to find work for himself on return. That is especially the case when he has a family support network to return to, including his wife, children and siblings.
17. For the reasons given above, I am not satisfied that the appellant has come anywhere close to establishing that he has met the AM (Zimbabwe) test.
Very significant obstacles
18. I am not satisfied that there are very significant obstacles to the appellant re-establishing his private life in Bangladesh. While he has lived in the UK since 27 September 2013, he spent the first 38 years of his life in his country of birth. He was educated and ran a business there. He will still be familiar with the culture. He undoubtedly still speaks the language, having given his evidence to the Tribunal through a Sylheti interpreter. For the reasons given above in respect of the Article 3 ground, I am not satisfied that the appellant’s medical conditions are a barrier to his return. Importantly, he still has family in Bangladesh, including his wife, children and siblings who can offer him a support network as he re-establishes his life there. For the reasons given above, I am also satisfied that, if necessary, his family in the UK can continue to provide him with financial support, as they do here, until he is able to provide for himself. The appellant does not therefore meet the requirements for leave to remain under Appendix Private Life of the Immigration Rules.
Article 8 private life
19. I am satisfied that the appellant has established a private life in the UK since arriving here in 2013. I must therefore consider whether any interference with that private as a result of the respondent’s decision to remove him is proportionate.
20. On the respondent’s side of the scale, I remind myself that the public interest lies in the maintenance of effective immigration controls. In the present case, the appellant entered the UK on 27 September 2013 on a visit visa and then overstayed after it expired which, presumably, occurred around March 2014. He did not, however, seek to regularise his status until 19 August 2019 when he unsuccessfully claimed asylum. He has therefore remained in the country unlawfully for a protracted period of time. I also take into account that the appellant does not meet the requirements for leave to remain under the Immigration Rules, which is a weighty, although not determinative, factor. I also take into account that the appellant has been receiving free NHS treatment that he is not entitled to as an overstayer.
21. The appellant gave his evidence to the Tribunal using an interpreter and there is insufficient evidence before me to suggest that he speaks English: see s.117B(2) of the 2002 Act. Mr Aghayere submitted that the appellant would be able to find work if he was permitted to remain in the UK and would not therefore be a burden on public services. While it seems to me that the appellant’s inability to speak English would be detrimental to his ability to find work, on balance I am willing to accept that the appellant could support himself financially if permitted to remain here.
22. Turning to the appellant’s side of the scale, Mr Aghayere submitted that the appellant was socially, culturally and economically integrated into the UK. What this means in practice remains unclear. The appellant’s witness statement is silent on what his ties to the UK are. As already discussed, the appellant does not appear to speak English. In oral evidence, he confirmed that he has cousins in the UK and he provided letters of support to the respondent when he submitted his further representations on 20 January 2023 leading to the decision under appeal. I accept from these letters that the appellant has made friends in the UK and that he attends mosque, although I find that he can re-establish friendships in Bangladesh and attend a mosque there. I also accept that the appellant receives medical services in the UK. However, for the same reasons given above in respect of the Article 3 appeal, I am satisfied on balance that he can access medical care in Bangladesh. Furthermore, any private life developed by the appellant in the UK was established at a time when his immigration status was either precarious (i.e. when he was here on his visit visa) or he was here unlawfully (following the expiry of his visa). I therefore find that little weight can be attached to the appellant’s private life: see s.117B(4)(a) and (5) of the 2002 Act.
23. I would also reiterate what I say at [18] above in respect of the lack of very significant obstacles to the appellant re-establishing his private life in Bangladesh. In particular, the appellant has family, including his wife and children, living there and he can reasonably be expected to open a new business or otherwise find work on return.
24. For these reasons, I find that the appellant’s private life does not outweigh the public interest factors in favour of his removal from the UK. The respondent’s decision is not therefore disproportionate.
Notice of Decision
The appeal is dismissed on human rights grounds.

M R Hoffman

Judge of the Upper Tribunal
Immigration and Asylum Chamber

7th October 2025

Annex: Error of Law decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001784

First-tier Tribunal No: PA/59399/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE HOFFMAN

Between

SMD
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr N Aghayere, legal representative
For the Respondent: Mr B Hulme, Senior Home Office Presenting Officer

Heard at Field House on 19 June 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, who is a citizen of Bangladesh, appeals with permission against the decision of First-tier Tribunal Judge Abebrese (“the judge”) promulgated on 28 February 2025 dismissing his appeal against the respondent’s decision dated 11 October 2023 to refuse his fresh asylum and human rights claims.
Anonymity
2. The First-tier Tribunal made an order for anonymity and no application has been made to set that aside. In maintaining the order for anonymity, I have taken into account the strong public interest in open justice. However, in this case it is outweighed by the appellant’s interests, as his claim relates to international protection on the basis of his political opinion.
Background
3. The appellant was born in Bangladesh in 1975. He arrived in the UK on 27 September 2013 on a visit visa. However, on expiry of that visa he failed to leave the country. He claimed asylum on 19 August 2019. That claim was refused on 17 December 2019 and his appeal against that decision was dismissed on 28 February 2020. He made further submissions to the respondent on 6 October 2021 but these were rejected under paragraph 353 of the Immigration Rules on 1 December 2022. The appellant sent a second set of further submissions to the respondent on 20 January 2023. He claimed that he faced a real risk of persecution on return to Bangladesh as a member of the BNP, including on account of his sur place activities in the UK. He also claimed that he was receiving treatment for heart disease prevention in this country.
4. In her decision dated 11 October 2023, the respondent began by considering the February 2020 findings made by the First-tier Tribunal in the appellant’s original asylum appeal. The judge had found that the appellant did not have a significant profile within the BNP and that he had shown a remarkable lack of knowledge about the party. The First-tier Tribunal concluded that the appellant would not be at risk on return either as a result of claimed activities in Bangladesh or his sur place activities in the UK. The respondent found that little weight could be attached to the appellant’s latest evidence purporting to show that the authorities in Bangladesh were seeking to prosecute the appellant. Furthermore, she found that the evidence that the appellant had produced to demonstrate his political activities in the UK were insufficient to prove that these were likely to have brought him to the attention of the Bangladeshi authorities. She therefore concluded that he did not face a real risk of persecution on return. With regards to the appellant’s medication for heart disease prevention, the respondent found that he could seek medical treatment in Bangladesh. She therefore refused both his asylum and human rights claims.
5. The appellant then appealed to the First-tier Tribunal. The hearing took place on 18 September 2024 although the judge’s decision dismissing the appeal was not promulgated until 28 February 2025.
The appeal to the Upper Tribunal
6. The appellant was granted permission to appeal the judge’s decision by First-tier Tribunal Judge Gumsley on 22 April 2025. Permission was granted on the following four grounds (and refused on one other):
a. The delay in promulgating the decision was so extensive that it led to a material risk that the judge failed to properly recall and assess the evidence submitted.
b. The judge failed to apply the correct lower standard of proof to the appellant’s protection claim.
c. The judge made contradictory findings when carrying out the Article 8 ECHR proportionality exercise.
d. The judge failed to make findings in relation to the appellant’s medical condition either in relation to his Article 3 or Article 8 ECHR claims.
The hearing
7. The error of law hearing took place 19 June 2025. After I had heard submissions from both parties, I reserved my decision.
8. However, after the hearing I noticed that the respondent’s decision dated 11 October 2023 purported to refuse to treat the appellant’s further representations of 20 January 2023 as a fresh asylum and human rights claim for the purposes of paragraph 353 of the Immigration Rules, although other passages of the letter referred to the appellant having a right of appeal. Where further representations fail to meet the fresh claims claim, the decision does not attract a right of appeal. There was no discussion about jurisdiction before the First-tier Tribunal, though, or before me at the hearing. I therefore issued directions which were sealed on 30 June 2025 requiring the parties to file written submissions on the question of jurisdiction.
9. The respondent complied with those directions on 7 July 2025. Her submissions are set out below:
“2. The Respondent acknowledges that the cover page of the refusal decision states that the Appellant ‘can appeal this decision to refuse your protection and human rights claim’. A further reference to a right of appeal is made later in the decision. That is inconsistent with the refusal decision determining that the further submissions do not meet the requirements of Paragraph 353 of the Immigration Rules, do not amount to a fresh claim, and therefore does not give rise to a right of appeal.
3. The Respondent acknowledges that this issue was not raised by the Respondent before Judge Abebrese, who proceeded to determine the appeal.
4. On the particular facts of this appeal, and in light of the contradiction in the refusal decision, the Respondent submits that the refusal decision granted the Appellant a right of appeal. Although in the body of the refusal decision it was determined not to be fresh claim, the decision is inconsistent, and the Respondent has considered the entirety of the Appellant’s asylum and human rights claim. Therefore, the Respondent accepts that the First-tier Tribunal had jurisdiction to hear the appeal.”
10. As the respondent has accepted that the decision letter did grant the appellant a right of appeal, in the circumstances, I have proceeded to determine the case.
Findings – Error of Law
Ground 1: The delay in promulgating the decision
Ground 4: Failure to consider the appellant’s medical evidence
11. As explained above, the judge took more than five months to promulgate his decision refusing the appellant’s appeal. That delay was unquestionably unacceptable. It does not, however, automatically follow that this amounts to a material error of law. In SS (Sri Lanka) v Secretary of State for the Home Department [2018] EWCA Civ 1391, it was held that a decision of the First-tier Tribunal would not be unsafe merely because of an excessive delay in promulgating the decision. Instead, an appellant must demonstrate a nexus between the delay and the safety of the decision.
12. Mr Aghayere submitted that the consequences of the delay were obvious: the decision was, he said, replete with typographical errors and it was difficult to follow, which he suggested was the result of the judge rushing his decision after the appellant’s representatives had chased it with the First-tier Tribunal. It is correct that the decision is full of drafting errors and displays no sign of having been proof-read but, on a freestanding basis, I am not convinced that demonstrates a material error of law.
13. Ground 4 argues that the judge failed to make any findings in respect of the appellant’s medical evidence. According to paragraph 17 of the appellant’s witness statement dated 21 February 2024, he claims to suffer from depression, stress, high blood pressure, gastric problems, chest pains as well as memory loss and disorientation. He also provided documents from his GP and the NHS in support of his appeal. The medical claim was also referred to at paragraph 28 of the appellant’s skeleton argument before the First-tier Tribunal. However, while at [7], [11], [15] [20] the judge records that the appellant gave evidence about his medical conditions and that submissions were made by both parties in relation to the appellant’s health, nowhere in his decision does he make any findings on this, whether in the context of Article 3 or Article 8.
14. That the judge does refer in his decision to the evidence and submissions relating to the appellant’s health shows that the delay in promulgating the decision did not mean that he had forgotten about that aspect of the appellant’s claim. What it suggests is that the judge’s failure to consider the medical claim was, in fact, a result of his own carelessness. Therefore, I am not satisfied that Ground 1 does disclose an error of law. I am, however, satisfied that the failure to consider the medical evidence did lead to a material error of law and, therefore, Ground 4 is made out.
Ground 2: The judge failed to apply the lower standard of proof to the protection claim
15. Mr Aghayere argued that when considering the humanitarian protection aspect of the claim at [25], the judge found that it was “unlikely” that the appellant would face persecution on return to Bangladesh. Mr Aghayere submitted that this demonstrated that the judge erroneously applied the balance of probabilities rather than the lower standard of whether there was a “real risk” of persecution.
16. Reading the decision as a whole, I am not satisfied that the judge applied the wrong standard of proof. At [5], the judge properly directed himself that the appellant had to prove his case to the lower standard and he applied this correctly to his findings in relation to the asylum claim: see [23]. Furthermore, at [25] the judge found that “there is no real risk that if the [appellant] were to return to Bangladesh he would face a real risk of persecution” (underlining added). He was therefore plainly aware of the correct test. In the circumstances, I find that when the judge said that the appellant was “unlikely to be of interest to the present regime”, he merely meant that the appellant had not made out his claim to the lower standard to face political persecution on return.
17. I am therefore satisfied that this ground does not identify a material error of law.
Ground 3: Contradiction and lack of justification in the proportionality assessment
18. Mr Aghayere submitted that when considering the appellant’s rights under Article 8 ECHR, the judge made a contradictory finding at [27] that “the decision of the [respondent] is proportionate and unjustified”. Mr Aghayere is correct that the decision cannot be both of those things. However, I am satisfied that this is simply the result of yet another typographical error made by the judge. Reading his findings in relation to Article 8 together, it is clear that what he meant to say was that the decision was proportionate and “justified”.
19. However, I am satisfied that the judge made a material error of law in his approach to Article 8 by failing to take into account the evidence relating to the appellant's medical conditions when carrying out the balancing exercise.
Conclusion – Error of Law
20. For the reasons given above, I find that Grounds 3 and 4 have been made out. While I accordingly set aside the judge’s decision, as the appellant has been unable to identify a material error of law in the judge’s treatment of his claim to face a real risk of persecution in Bangladesh on political grounds, I preserve the findings made at [21] to [25] in relation to his asylum, humanitarian protection and Articles 2 and (non-medical) 3 ECHR claims.
21. That means that matters to be considered at the remaking hearing are (a) the appellant’s Article 3 medical claim; and (b) his Article 8 private life claim.
Disposal
22. The general principle is that cases will be retained by the Upper Tribunal for remaking subject to the exceptions set out at paragraph 7.2 of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal. Having considered paragraph 7.2, I am satisfied that (a) neither party was deprived of a fair hearing before the First-tier Tribunal; and (b) because the matters to be decided at the remaking hearing are limited to the appellant’s medical and private life claims, the further fact-finding is unlikely to be extensive. It is therefore appropriate for the Upper Tribunal to retain the case for remaking.
Notice of Decision
The decision of the First-tier Tribunal involved the making of an error of law and is set aside with the findings made at [21] to [25] preserved.
The decision will be remade at a resumed hearing in the Upper Tribunal.
Directions:
1. The remaking of this appeal is to be listed for the first available date at Field House with a time estimate of 3 hours.
2. Any updating evidence either party wishes to rely upon must be electronically filed with the Upper Tribunal and served on the other party 21 days prior to the remaking hearing.
3. The appellant is to file and serve a skeleton argument, no later than 14 days before the resumed hearing.
4. The Secretary of State is to file and serve a rule 24 response, if so advised, no later than 7 days before the resumed hearing.
5. The appellant shall be provided with a Sylheti interpreter.

M R Hoffman

Judge of the Upper Tribunal
Immigration and Asylum Chamber

16th July 2025