Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002510

First-tier Tribunal No: PA/50387/2024
LP/13891/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 26 August 2025

Before

UPPER TRIBUNAL JUDGE CANAVAN
DEPUTY UPPER TRIBUNAL JUDGE STAMP

Between

AW
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R. Rai, counsel instructed by Templeton Legal Services
For the Respondent: Ms S. McKenzie, Senior Home Office Presenting Officer

Heard at Field House on 4 August 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
Background
1. The appellant appeals, with permission, the decision of First-Tier Judge O’Rourke dated 15 April 2025 on the basis that it contains an error of law. The judge had dismissed the appeal against the respondent’s refusal of her protection claim.
2. The appellant is a citizen of Kenya and aged 39. She claimed asylum on the basis that her husband’s support for the LGBT community in Kenya and his publicly acknowledged bi-sexuality would place her in danger on return to her home country by virtue of her imputed association with such views.
3. The judge decided that the appellant’s relationship with her husband may put her at risk on return to her home area in Kenya, particularly given the undisputed evidence of an arson attack on her previous home but that the appellant could reasonably relocate within Kenya to a larger town or city where she would not be at continued risk nor were there very significant obstacles to her re-integrating into Kenyan society. Additionally, the judge dismissed her Article 8 claim finding that the public interest in control of immigration outweighed any right to private life she may have to remain in the UK.
4. Permission to appeal was partially granted by Judge Moon on 5 June 2025:
“1. The grounds are in-time. The first ground of appeal is that the Judge made an error when concluding the appellant can relocate in Kenya. This amounts to a disagreement with the decision rather than an error of law. The Judge has engaged with relevant evidence including evidence relating to the appellant’s husband and proper reasons have been given for the conclusion.
2. The second ground is that the Judge did not engage with the report of the psychologist or confirm why no weight was attached to the report. This ground is arguable because the decision does not refer to the report and the appellant’s mental health is not factored into the Article 8 exercise.”

Preliminary Matters and Submissions
5. Mr Rai confirmed that the consolidated bundle filed with the Tribunal and consisting of 313 pages contained the full documentation. Ms McKenzie noted that the bundle had not be served on the respondent but she had been able to prepare the appeal based on the papers available from the hearing at the First Tier and was content to proceed on this basis.
6. Mr Rai relied on the grounds of appeal dated 27 April 2025. The essence of Mr Rai’s submissions was that the Psychological Report (the “Report”) dated 28 March 2025, contained in the supplementary bundle of documents before the judge, had not been referred to or taken into account in his decision. The Report, which had complied with the Practice Direction of the Immigration and Asylum Chamber of the First-tier Tribunal dated 1 November 2024, disclosed that the appellant was suffering from major depression and generalised anxiety disorder (paragraph 5.1) and that if forced to return to Kenya her depressive and anxiety symptoms may worsen (paragraph 6.6). The failure by the judge to take the Report into account in his decision making generally and particularly on the issue of her ability to safely relocate and her Article 8 claim was a material error of law.
7. Ms Mckenzie referred us to case of Lata [2023] UKUT 00163 and submitted that in the absence of any submission by the appellant on the contents of the Report or its implications for the appellant’s appeal it could not amount to an error of law for the judge to have failed to take it into account as the Report had not been clearly identified as being a relevant issue for consideration. In any event, the Report was limited in its nature and makes clear that is solely based on the appellant’s disclosure and presentation and the expert acknowledged her lack of expertise to determine whether the appellant could receive the necessary psychotherapeutic treatment in Kenya. Ms McKenzie referred us to HA (expert evidence; mental health) Sri Lanka [2022] UKUT 00111 which emphasised the importance of viewing any medical report in the context of GP records and given this had not been done then little evidential value should be placed on the Report.

Analysis
8. In light of the limited grounds on which the appeal was granted, the only issue for this Tribunal to decide is whether the judge made an error of law in failing to consider the Report in his decision and, if so, whether any error to do so was material – in other words, that had such an error not been made the outcome of the decision may well have been different.
9. Our starting point is to consider whether the appellant‘s mental health was appropriately identified as an issue to be considered as part of the appeal before the First-tier judge. This Tribunal’s decision in Lata clearly sets out the principle that where a party fails to properly identify an issue it is unlikely to have a good ground of appeal that the issue was not appropriately considered by the judge. In particular, paragraph 4 of the headnote in that case provides :
“It is a misconception that it is sufficient for a party to be silent upon, or not make an express consideration as to, an issue for a burden to then be placed upon a judge to consider all potential issues that may favourably arise, even if not expressly relied upon. The reformed appeal procedures that now operate in the First-tier Tribunal have been established to ensure that a judge is not required to trawl though the papers to identify what issues are to be addressed. The task of a judge is to deal with the issues that the parties have identified. “
10. In the present case there was no reference to any mental health concern of the appellant or the Report in the grounds for appeal before the First-tier nor was Mr Rai able to provide us with any evidence that this was raised in oral submissions at the hearing. In addition, no mention of the appellant’s mental health condition or the existence of the Report was made in her witness statement made on the same day as the Report was issued. The expert did not present any evidence at the hearing. Accordingly, the only reference to the appellant’s mental health is in the Report itself contained in the supplementary bundle.
11. Given Lata’s emphasise on the importance for the parties to identify relevant issues for a judge in order for them to properly comply with their obligations under the Tribunal Procedure (First Tribunal) (Immigration and Asylum Chamber) Rules 2014 it is our view that the issue of the appellant’s mental health disclosed in the Report, unaccompanied by any other submissions to suggest its relevance for the appellant’s claim and combined with the absence of any reference to it in other material documentation, falls below the standard of required identification set by that case. Further, the absence of the identification of the appellant’s mental health being a material part of the her case unfairly prejudices the respondent’s position as, if we allowed the appeal, she would have been deprived of an opportunity to make her own observations on the quality and relevance of the Report at the time of the First-tier hearing and have the judge take those into account in his decision.
12. Notwithstanding Lata, we have considered the evidential value of the Report itself. The well written report does set out the expert’s conclusions on the state of the appellant’ s mental health at paragraph 5.1 that she was suffering from major depression and generalised anxiety disorder. In terms of prognosis, the expert stated, at paragraph 6.6, that if the appellant is able to attend regular psychological treatment in what she perceives to be a safe environment, her long term prospects are moderate but that if returned to Kenya, where she does not feel safe, her symptoms may worsen. In paragraph 7 the expert specifically indicated that she does not have the necessary expertise to determine whether the appellant would have access to the appropriate treatment if returned to Kenya and highlighted that her conclusions throughout the Report were based on the appellant’s disclosures and presentations.
13. In reviewing the Report we note that expert, whilst appropriately qualified, is a psychotherapist rather than a medically trained psychiatrist. Additionally that the Report was based on a single psychological assessment conducted on 6 February 2024 and “subsequent therapy sessions” which are not further quantified or explained. The Report specifically states at paragraph 1.3 that it does not rely on material from any other source unless specifically stated. No reference is made in the Report to the appellant’s GP, medical or hospital records nor to the cognitive behaviour therapy (CBT) that the appellant is receiving beyond the fact of her receipt of such therapy. In HA this Tribunal emphasised the importance of viewing any expert report on mental health in the context of GP records so as to give a broader picture of an individual’s mental health particularly where the individual and GP would have interacted over a significant period of time. The Tribunal further held that given GP records are likely to be regarded as directly relevant to the issue of mental health they should be engaged with by the expert in the report. The appellant has been in the UK since July 2021 and so we would have expected GP records to be available and referred to in the Report and given this was not the case nor any explanation offered for their absence and for the additional reasons we have given above we necessarily attach less evidential value to the Report. The Report presents a limited perspective on the appellant’s mental health and does not suggest that the impact of her condition would prejudice her ability to work or support herself, nor does it deal with the possibility of her receiving appropriate treatment in Kenya. Even if this fairly limited evidence was taken at its highest it was not capable of showing that internal relocation would be ‘unduly harsh’ or that there would be ‘very significant obstacles’ to her integration such that it would be a breach of a breach of Article 8 if she returned to Kenya. Accordingly, even if the judge had been required to consider the Report it would not have resulted in any material difference to the outcome of the appeal.
14. For the sake of completeness, we address the submission set out in paragraph 7 of the Grounds of Appeal which were not the subject of additional oral argument by Mr Rai at the hearing. In essence it was contended that the appellant may not be able to receive CBT in Kenya given the necessary disclosures about her past and her husband’s sexuality which could result in putting herself at further risk. We do not consider that there is any merit in this contention given any medical practitioner would have an obligation of confidentiality to his client and, in absence of any evidence to the contrary, the appellant’s safety would not be put at risk in providing the necessary background information to any medical professional in Kenya.
15. The appeal to the Upper Tribunal is dismissed.

Notice of Decision
There is no error of law in the decision of the First-tier Tribunal. The decision of the First-tier Tribunal is upheld with the consequence that the appellant’s appeal is dismissed.

Mark Stamp

Judge of the Upper Tribunal
Immigration and Asylum Chamber

7 August 2025