Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002607

First-tier Tribunal No: HU/63588/2023
LH/06051/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 26th of September 2025

Before

UPPER TRIBUNAL JUDGE SHERIDAN
DEPUTY UPPER TRIBUNAL JUDGE L MURRAY

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

SUKHWINDERJIT KAUR
(ANONYMITY ORDER NOT MADE)
Respondent

Representation:
For the Appellant: Ms Sher, Counsel instructed by Farani Taylor Solicitors
For the Respondent: Ms McKenzie, Senior Home Office Presenting Officer

Heard at Field House on 12 September 2025

DECISION AND REASONS
Introduction
1. On 13 April 2022 the Appellant made an application for leave to remain on the basis of her private life in the United Kingdom. The Respondent refused that application in a decision letter dated 9 November 2023. The Appellant’s appeal against the Respondent’s decision was dismissed by First-tier Tribunal Judge Zahed (the FTTJ) in a decision promulgated on 9 April 2025. Permission to appeal was granted by First-tier Tribunal Judge McMahon on 12 June 2025 on limited grounds. He concluded that permission to appeal should not be granted on Ground 1 as it was not arguable that the Judge erred in his assessment of the Article 3 risk to the Appellant as this was not ever a principal controversial issue to be determined. However, he found it arguable that the FTTJ failed to consider the Appellant’s mental health as part of the credibility assessment and granted permission on Ground 2.
2. The matter came before us to decide whether the First-tier Tribunal had erred in law, and if so whether any such error was material such that the decision should be set aside.
The hearing
3. Ms Sher expanded on the grounds of appeal in relation to Ground 2 and referred us to the medical evidence that was before the FTTJ. She submitted that the credibility findings were made in isolation and without reference to this evidence. The medical evidence was only considered at paragraph 26 in relation to the issue of re-integration. She submitted that the Appellant was consequently denied a fair hearing. The Appellant should have been treated as a vulnerable witness in accordance with the Joint Presidential Guidance Note No 2 of 2010. The psychiatric report dealt with her poor concentration and inability to focus and these matters should have been taken into account.
4. We asked Ms Sher, as she had represented the Appellant before the First-tier Tribunal, whether there had been an application to treat the Appellant as a vulnerable witness as the grounds did not assert this and there was no reference to such an application in the decision of the First-tier Tribunal. She said that there had been no such application.
5. Ms McKenzie said that the FTTJ had adopted a careful approach to the psychiatric report and there was consideration of the psychiatric evidence. It was a matter for the Judge, as set out in the Presidential Guidance, to consider the relationship between the vulnerability of an appellant and the evidence, and there was no complaint in the grounds that the Appellant was treated unfairly. In the grounds the core argument was that vulnerability was not assessed in line with the credibility findings. She referred us to the case of SB (vulnerable adult credibility) Ghana [2019] UKUT 00398 (IAC) at paragraphs 59-62. She submitted that the Judge would have been aware of the guidance and would have taken it into account in the assessment of credibility.
6. Ms Sher replied that we could not be sure that the Judge had the medical evidence in mind.
7. We were satisfied having considered the evidence and arguments that there was a material error of law in the decision of the First-tier Tribunal as the medical evidence demonstrated that the Appellant was vulnerable and the FTTJ had made adverse credibility findings in the absence of any reference to this evidence. We informed the parties of our decision with full reasons to follow and canvassed the question of disposal.
Conclusions - Error of law
8. We are satisfied that there was a material error of law in the decision of the First-tier Tribunal for the following reasons. It is unfortunate that there was no application by the Appellant’s representatives to treat the Appellant as a vulnerable witness in accordance with the Joint Presidential Guidance Note No 2 of 2010 and that accordingly, the Appellant was identified as a vulnerable witness at or before the hearing as required by the Guidance Note. However, we are satisfied on the medical evidence before the FTTJ that the Appellant should have been treated as a vulnerable witness and that there was a positive duty on the FTTJ, notwithstanding the absence of an application, to identify the Appellant as a vulnerable witness and to assess her evidence in accordance with the Guidance Note.
9. We conclude that the Appellant was a vulnerable witness on the basis of the evidence in the psychiatric report authored by Dr Razia Hussain, consultant psychiatrist, dated 16 August 2021 and the more recent medical evidence consisting of a number of letters from Hounslow NHS, her GP records and evidence of counselling sessions, confirming that she had severe depression. There was no issue over Dr Hussain’s expertise nor the diagnosis that the Appellant suffered mixed anxiety and depressive disorder, the relevant symptoms of which included poor concentration.
10. We have had regard to the Equal Treatment Bench Book, Chapter 4 “Mental Disability”, and we are satisfied, given the diagnosis, that the Appellant suffered “mental ill health” and that therefore that her needs should have been identified prior to or at the beginning of the hearing in order to establish whether any adjustments were required. In AM (Afghanistan) v SSHD [2017] EWCA Civ 1123 Sir Ernest Ryder opined at paragraph 30 that any failure to follow the Joint Presidential Guidance Note No 2 would most likely be an error of law. The Upper Tribunal held in SB (vulnerable adult: credibility) Ghana [2019] UKUT 00398 (IAC) as per the headnote that:
“(2) By applying the Joint Presidential Guidance Note No 2 of 2010, two aims are achieved. First, the judicial fact-finder will ensure the best practicable conditions for the person concerned to give their evidence. Secondly, the vulnerability will also be taken into account when assessing the credibility of that evidence.
(3) The Guidance makes it plain that it is for the judicial fact-finder to determine the relationship between the vulnerability and the evidence that is adduced.”
11. It is both clear from the Guidance note, and case law, that there is a positive duty on the Tribunal to identify any vulnerability and the effect on the quality of the evidence.
12. We do not accept Ms McKenzie’s submission that the Judge must have had the Guidance in mind. There is no appropriate self-direction, and the adverse credibility findings are made without reference to the psychiatric and medical evidence. The failure to treat the Appellant as a vulnerable witness and assess her credibility with reference to the psychiatric evidence was a material error of law.
13. We have considered whether this is a decision that should be re-made in the Upper tribunal or remitted to the First-tier Tribunal. Paragraph 7.2 (a) of the Practice Statement and the applicable principles as set out in of AEB v SSHD [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) require the decision to be re-made in the Upper Tribunal unless the effect of the error is to deprive a party of a fair hearing. We conclude that the failure to treat the Appellant as a vulnerable witness meant that the hearing was not a fair one. It is appropriate to remit the decision to the First-tier Tribunal.

Notice of Decision
The making of the decision of the First-tier Tribunal involved the making of a material error of law.
We set the decision aside and remit the appeal to the First-tier Tribunal with no findings preserved.

L Murray

Deputy Upper Tribunal Judge
Immigration and Asylum Chamber

23 September 2025