Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003167

First-tier Tribunal No: HU/56491/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 29 November 2025

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

ARNOLD ANDREWS KHONGONO
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr K Forrest, instructed by McGlashan MacKay Solicitors
For the Respondent: Mr K Ojo, Senior Home Office Presenting Officer

Heard at Field House on 14 November 2025

DECISION AND REASONS
1. The appellant appeals, with permission, against the decision of the First-tier Tribunal which dismissed his appeal against the respondent’s decision to refuse his human rights claim.
2. The appellant, born on 10 May 1971, is a national of Malawi. He arrived in the UK on 28 May 2005 by plane, with a student visa valid until 2007. He was granted further leave as a student valid until October 2008, but was subsequently refused leave in April 2009. He remained in the UK as an overstayer. He was encountered working by immigration officials in 2009 and he explained that he was unwell and HIV positive, but he indicated a willingness to return to Malawi. Nothing further happened until he made a claim for protection on 12 July 2018.
3. The appellant’s protection claim was made primarily on the basis of his health and the claimed lack of treatment in Malawi, as well as on the basis of likely destitution on return Malawi and a fear of the family of his former partner who were well-connected with the leaders of the ruling party in Malawi and who believed that he had infected her with HIV. He claimed that he was diagnosed with HIV only after arriving in the UK, in October 2006, although he contracted HIV prior to coming here. His claim was refused in 2020, on the grounds that it was not accepted that he would be at risk on return to Malawi and that he would be able to access medical treatment in Malawi so that his removal would not be in breach of Article 3 or 8 of the ECHR.
4. The appellant appealed against the refusal of his claim and his appeal was heard on 15 July 2019 in the First-tier Tribunal. The appeal was dismissed in a decision promulgated on 8 October 2019. The First-tier Tribunal Judge did not accept that the appellant’s former partner’s family was in a position to do him harm throughout the country and found that he was not at risk on return to Malawi. With regard to his health, the judge found that it was stable and that treatment was available in Malawi in any event, and that he would be able to seek employment and sustain himself there. The judge found that the appellant’s removal to Malawi would not breach his Article 3 or 8 human rights, noting that there had been no separate claim made in respect of Article 8 in any event.
5. The appellant remained in the UK and applied, on 29 August 2022, for leave to remain in the UK on private life human rights grounds, with written representations dated 25 January 2023 setting out his claim on the basis that he had advanced HIV and would not be able to receive adequate treatment in Malawi. It was claimed that he had a well-established private life in the UK, having resided here for 17 years.
6. The appellant’s human rights claim was refused on 23 May 2024. The respondent considered that there were no very significant obstacles to the appellant’s integration in Malawi for the purposes of paragraph PL 5.1 of the immigration rules, noting that he had family remaining there who could assist him or accommodate him. The respondent concluded that there were no exceptional circumstances preventing the appellant from re-establishing his private life in Malawi. It was not accepted that his removal to Malawi would be in breach of Article 3, as there was medication and treatment there for HIV/AIDS. The respondent considered that the test in AM Zimbabwe [2020] UKSC 17 was not met as the appellant had failed to show that his condition would seriously and rapidly deteriorate upon removal resulting in intense suffering. The respondent considered that the appellant’s condition did not appear to be life-threatening and that his illness was not of a type or severity such that his removal reached the high threshold to breach Article 3.
7. The appellant appealed against that decision and his appeal against came before the First-tier Tribunal on 31 January 2025. It was adjourned part-heard on that day, in order for the decision of the First-tier Tribunal in the previous appeal to be produced, and it then continued on 19 May 2025. In a decision promulgated on 31 May 2025 the judge found that the appellant had established that he was a seriously ill person, but did not accept that substantial grounds had been shown for believing that as a seriously ill person he would face a real risk, on account of the absence of appropriate treatment or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his state of health resulting in intense suffering, or to a significant reduction in life expectancy. The judge noted that, once diagnosed in October 2006, the appellant was put on Anti-Retroviral Treatment (ART) and was given a combination of drugs to take once a day, and that up until August 2024 he had been taking a combination of Efavirenz and Lamivudine, until it had become ineffective, since when he had been prescribed Biktarvy. The judge had regard to the medical evidence, including a letter from Dr Nedson Fosiko of the Queen Elizabeth Central Hospital in Blantyre, Malawi, which indicated that Biktarvy was not available on the Malawi National ART program, although there were other medicines used which may have a similar potency. The judge found that the medical evidence was limited and did not adequately address the key issue, namely whether, having regard to the treatment options available, the appellant would face a real risk of being exposed to a serious, rapid and irreversible decline in his state of health resulting in intense suffering, or to a significant reduction in life expectancy, and therefore found that the substantial grounds requirement in Article 3 had not been met. The judge did not consider that the appellant’s removal would breach Article 8 and concluded that the interference with his Article 8 rights would be proportionate.
8. The appellant sought permission to appeal to the Upper Tribunal against the judge’s decision on the grounds that the judge had erred in law in holding that the respondent’s decision was not a disproportionate interference with his right to respect for his private life: firstly, by failing to consider whether there existed any very significant obstacles to his integration into his home country in relation to his medical condition; and secondly, by failing to take into account, in the Article 8 proportionality balance, the additional factor of his youth ministry and pastoral counselling work.
9. Permission was granted in the First-tier Tribunal on the following basis:
“The Decision does not record consideration of the question of very significant obstacles, although this was raised in the reasons for refusal letter, and the Article 8 consideration arguably does not include all relevant factors.
The grounds therefore identify arguable errors of law material to the outcome of the appeal, and so permission is granted.”
Hearing and Submissions
10. The matter then came before me for a hearing. The hearing was conducted remotely, through CVP. Both parties made submissions.
11. Mr Forrest submitted that there was no challenge to the judge’s findings on Article 3, and the only issue was Article 8. He submitted that the judge had erred in his findings within the immigration rules and on Article 8 outside the rules. The judge had failed to take into account the very significant obstacles to the appellant’s integration in Malawi, which consisted of the uncertainty of whether the treatment, which he currently received, would be available to him in Malawi or what other treatment would be available. Mr Forrest relied upon the medical letters from the NHS which stated that the appellant had had to be switched from his previous treatment regime onto a different treatment, Biktarvy, which the hospital in Malawi confirmed was not available there. It would be very difficult for the appellant to integrate in Malawi because of his serious condition. As for the assessment outside the immigration rules, the judge had failed, in his balance sheet exercise at [19], to take into account the appellant’s valuable contribution to society. Mr Forrest referred to paragraph 86 of GS (India) v SSHD (225) EWCA Civ 40 where it had been found that Article 8 could succeed where Article 3 failed, if there was a factor additional to the medical issues to be weighed in the balance. He relied, in that regard, upon the appellant’s statement where he mentioned his aspirational plans for counselling work, together with the supporting letters referring to the appellant’s passion for leading the youth, and submitted that the judge had erred by failing to take that into account in his proportionality assessment.
12. Mr Ojo submitted, with regard to the first ground, that there had been a failure to mention, or include in the appellant’s bundle, the decision of the First-tier Tribunal in the previous appeal, where the judge, at [38], had referred to Article 8 not being pursued at that time. Mr Ojo submitted that there had been no real change since then, apart from the passage of time. The judge had taken into account the appellant’s HIV status and the fact that he could not meet the Article 3 threshold and had followed the Devaseelan guidance, having regard to findings made by the previous Tribunal on issues relevant to the question of very significant obstacles, such as the appellant’s ability to seek employment in Malawi. Mr Ojo submitted that the issues raised in the representations made prior to the refusal decision, dated 25 January 2023, focussed entirely on the appellant’s medical issues, and it was not even clear if the issue of very significant obstacles had been raised at the hearing. The respondent’s review made it clear that the onus was on the appellant to demonstrate that there would be very significant obstacles. Mr Ojo relied upon the case of AA (Morocco) v Secretary of State for the Home Department [2025] EWCA Civ 144 which post-dated the judge’s decision, but which relied upon the principles in GS, that if an Article 3 claim failed an appellant could not succeed under Article 8 without some separate or additional factual element, such as relationships, which the appellant had not demonstrated. He submitted that the judge had undertaken the relevant broad evaluative judgment and had clearly considered all the obstacles identified by the appellant, finding that he could return to Malawi. As for the second ground, Mr Ojo submitted that the appellant’s activities were not raised before the judge and the appellant’s statement made clear that he had not yet started such activities. The letters of support were dated some years before the hearing. Therefore none of those issues could have impacted upon the judge’s Article 8 assessment.
13. Mr Forrest submitted in response that those issues were not mentioned in the 2019 appeal because that was new information, and the solicitor’s representations pre-dated the major changes in the appellant’s medication.
Analysis
14. I do not find any merit in the grounds. As Mr Ojo submitted, it is not at all clear if the question of ‘very significant obstacles’ was even argued before the judge. At [16] the judge observed that it was not suggested that the appellant met the requirements of the immigration rules other than on human rights grounds, which suggests that it was not. The skeleton argument before the First-tier Tribunal focussed on proportionality, outside the rules, with no mention of ‘very significant obstacles’. As Mr Ojo pointed out, the respondent’s review at [7] to [10] put the appellant on notice that the onus was on him to demonstrate that his removal would be unduly harsh and that there would be very significant obstacles to return to Malawi, yet no evidence had been produced to demonstrate that he would have difficulties integrating and that he would have no support on return.
15. However, even if the issue was raised, the judge clearly considered all matters of relevance to such an assessment. He took the previous Tribunal decision as his starting point in accordance with the principles in Devaseelan, noting at [10] the findings of that Tribunal as to the appellant’s ability to seek employment and sustain himself in Malawi and maintained those findings. With regard to the appellant’s medical condition and the availability of medical treatment in Malawi, which is the focus of the appellant’s challenge in the first ground, it is clear that the judge considered that in the context of Article 8. He specifically found, at [19], that the requirements of the immigration rules were not met ‘for the reasons given above’. Plainly what he was referring to was the consideration of the appellant’s medical condition and the availability of a suitable programme of treatment in Malawi, as already considered in the context of Article 3, whereby he had found that the evidence suggesting no alternative to the appellant’s current regime was lacking and inadequate. In addition, the judge specifically referred to the availability of medical care in Malawi in his summing up at [20]. In the circumstances I reject the assertion that the judge failed to take the appellant’s medical issues into account in his Article 8 assessment, either within or outwith the immigration rules.
16. Furthermore, as Mr Ojo properly submitted, the appellant would have been needed to demonstrate additional factors in order to succeed on Article 8 grounds on the basis of an absence of adequate medical treatment in Malawi, as was made clear in the case of GS (and emphasised in the more recent case of AA, decided after the Tribunal’s decision), which he had not done. Although those cases were referring to the Article 8 proportionality assessment outside the rules, it must also be read into the ‘very significant obstacles’ assessment. In terms of what is said at [40] of AA, there were no other separate or additional factual elements identified by the appellant, such as the capacity to form and enjoy relationships, which brought the case within the relevant paradigm for Article 8.
17. In so far as the appellant relies, in the second ground, upon work in youth ministry and pastoral counselling as being such additional factors for the purposes of GS, the evidence in that regard before the judge was particularly lacking and went nowhere near amounting to a strong factor to be weighed into the balance. As Mr Ojo observed the appellant’s evidence in his witness statement, at [17], referred to him having plans to undertake such work but that those plans had not yet materialised and were on hold. The same can be said of the skeleton argument before the judge, at A2 and C3. In so far as the two letters of support are relied upon by the appellant as evidence of such work, they are expressed in vague terms and provide little or no detail, and in any event date back to June 2021 and are therefore not reflective of his circumstances at the time of the appeal before the First-tier Tribunal. As such I do not accept that the grounds identify any relevant factors which would have been material to the judge’s decision. I note in any event that, contrary to the assertion in the second ground, the judge referred at [19] to the appellant’s training and employment and thus took account of that evidence in the balancing exercise.
18. For all these reasons I do not find any merit in the grounds. The judge undertook a detailed and comprehensive assessment of all the evidence and took account of all relevant factors when considering Article 8. The judge provided cogent reasons for concluding that the appellant’s claim could not succeed on Article 8 grounds and was fully and properly entitled to conclude as he did. The judge’s decision is accordingly upheld.
Notice of Decision
19. The making of the decision of the First-tier Tribunal did not involve a material error on a point of law requiring it to be set aside. The decision to dismiss the appeal stands.

Signed: S Kebede
Upper Tribunal Judge Kebede

Judge of the Upper Tribunal
Immigration and Asylum Chamber

25 November 2025