Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-003326
First-tier Tribunal No: PA/67463/2023
LP/02341/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

10th September 2026

Before

UPPER TRIBUNAL JUDGE LANDES

Between

S M
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Miszkiel (Counsel instructed by KT Solicitors Limited)
For the Respondent: Ms Simbi, Senior Home Office Presenting Officer

Heard at Birmingham Civil Justice Centre on 7 August 2026

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 appeals, with the permission of the First-Tier Tribunal, the decision of a First-Tier Tribunal Judge (“the FTTJ”) dismissing his appeal from the respondent’s decision of 13 December 2023 to refuse his protection and human rights’ claims (Articles 3 (medical) and 8) of 22 June 2022.
Anonymity
2. An anonymity direction was made in the First-Tier Tribunal, and it was not suggested that it should not continue. The potential risk to the appellant as an asylum seeker outweighs the principle of open justice.
Background
3. The appellant is a citizen of Sri Lanka of Tamil ethnicity. His case was that he came to the adverse attention of the authorities in April 2009 when he was stopped when returning from Singapore with electronic equipment he had been asked to carry for LTTE. The equipment was seized for investigation. The appellant was subsequently taken for questioning, detained and tortured. He was released after his family paid a bribe and he came to the UK a couple of months later and stayed with his brother (who subsequently himself claimed asylum successfully). The appellant then went missing in about 2011 and was traced in 2021 in Germany by a friend. He returned to the UK in May 2022 and stayed with his brother again, claiming asylum on this occasion. His parents were said to have moved to India because of pressure from the authorities.
4. A psychiatric report of Dr Bashir diagnosed the appellant with PTSD and moderate to severe depression. It concluded that if he were returned to Sri Lanka there would be a high risk that he would make a suicide attempt. It was said to be highly probable that he was not mentally fit to give oral evidence in court.
5. The respondent’s position as set out in their review was that (as per the refusal letter) the appellant’s account was not credible, and his credibility was damaged by section 8 of the 2004 Act. As far as Article 3 was concerned, the respondent was said to have considered the opinion of Dr Bashir but that there was no cogent evidence to say that the appellant would be unable to access any required medical treatment in Sri Lanka. Treatment for depression and PTSD was available, and the review continued “whilst the respondent sympathises with the appellants mental health, the medical evidence does not demonstrate his medical conditions come close to reaching the high threshold…” In respect of Article 8 ECHR, the respondent again expressed sympathy with the appellant’s mental health problems, but maintained that it was reasonable to expect the appellant not to have lost all ties with Sri Lanka and to have a support network.
6. The appellant’s brother gave evidence at the hearing. The appellant did not, in the light of the medical evidence [6]. The cross-examination of the appellant’s brother at the hearing went to how the brother knew about the appellant’s case, why there were no documents evidencing the parents’ presence in India and that it was not credible that the appellant would have gone missing for 10 years without his brother trying to find out more about what had happened to him and asking more questions once the appellant returned. The FTTJ asked questions about how the psychiatrist had obtained the information which formed the basis of his report and how much the brother had intervened during the psychiatric assessment to explain matters on behalf of the appellant, and further questioned the appellant’s brother about what enquiries had been made to try and find the appellant after he had gone missing.
7. The respondent’s presenting officer in submissions challenged the lack of detail in the appellant’s account of detention, the difference between the length of detention in the father and brother’s statement and in the psychiatric report, and challenged the credibility of the brother’s account, his lack of first-hand knowledge, his apparent lack of concern about the appellant going missing and lack of interest in asking questions about what had happened to the appellant once he was found. He also challenged the lack of evidence showing the appellant’s parents were in India and made some general points about how the appellant was able to leave Sri Lanka if he were wanted and the credibility of the authorities enquiring about the appellant in 2019 if he were not in the country. The only comment the presenting officer made about the psychiatric report itself was that it was not up to date and that there was nothing in the evidence about the current treatment or the treatment available in Sri Lanka.
8. When the appellant’s counsel was making submissions that the appellant would not have the skills to look after himself in Sri Lanka, the FTTJ put to him that the appellant’s credibility was in issue but the appellant’s evidence could not be tested because the psychiatric report said that it could bring flashbacks. The FTTJ asked counsel to tell him what had happened in the 10 -year gap as Article 8 would be about integration. Counsel responded that the appellant was not able to game the system on his own account. The evidence was not that he had tried to claim asylum in different venues. The brother’s successful application made it less likely that the appellant was just trying to live under the radar. The FTTJ put to counsel that the report was a mixture of the brother talking and the appellant talking to the psychiatrist and counsel submitted that the psychiatrist had all sorts of narratives put their way and that the diagnosis was based on presentation.
9. In his decision, the FTTJ said he attached no weight to the expert report in essence because how the appellant, with such severe symptoms, could have survived over a ten-year period without contact or support from family had not been addressed, and accordingly he found the psychiatrist’s assessment was defective. The psychiatrist had also relied on a witness statement which the appellant did not write and was unaware of its contents. In addition, despite the instructions asking the psychiatrist to address whether the appellant was fit to instruct legal representatives the psychiatrist had not addressed that point [35] - [42].
10. The FTTJ did not find the appellant credible. He did not accept that there was a reasonable explanation for failing to address key aspects of the claim such as the concerns in the refusal decision and as to the appellant’s circumstances in the ten years he was missing. Whilst the appellant relied exclusively on the expert report to address the inconsistencies in his evidence the FTTJ explained that he gave no weight to the expert report [45] [46].
11. Concerning article 3 ECHR, the FTTJ relied on his previous findings relevant to the expert report and noted that although the appellant’s father referred to a suicide attempt in Sri Lanka and the expert referred to attempts to self-harm, the 2023 GP records stated that there was no history of self-harm or suicide; the appellant was internally inconsistent on a key aspect of his claim and it was not accepted that he was a suicide risk [61] – [63].
12. The FTTJ found that the appellant would be enough of an “insider” to have a reasonable opportunity of being accepted in Sri Lanka, to be able to operate on a day-to-day basis within society and to build up a variety of human relationships [65] – [69].
Grounds; conclusion
13. The appellant appealed on the grounds that the FTTJ made unreasonable and/or procedurally unfair findings about the expert report of Dr Bashir on a basis which was not raised at the appeal hearing or by the respondent’s presenting officer. The representatives listened to a recording of the hearing, and a transcript was agreed of the relevant parts. That transcript was before me.
14. It was submitted in the grounds that case law indicated that it was procedurally unfair to fail to give an appellant an opportunity to address a point which was raised for the first time in the FTTJ’s decision. The matters at [35] – [42] were not raised by the FTTJ at the hearing; had they been an application would have been made for an adjournment so that Dr Bashir could address the issues. The respondent’s review had not taken issue with the report but the references to sympathising with the appellant’s medical condition suggested that it was accepted that the appellant was suffering with mental health problems.
15. In addition, it was said the FTTJ had not addressed the other evidence indicating that the appellant had mental health conditions. The therapist’s letter referred to the appellant’s presenting problem being PTSD. After a course of therapy, the appellant had a PHQ-9 score of 22 (which indicated severe depression) and a GAD-7 score of 16 (which indicated severe anxiety) so the FTTJ had, it was said, failed to assess all the medical evidence with anxious scrutiny.
16. The grounds explained that there was nothing wrong with the expert considering the witness statement as information could be gathered from third parties when dealing with an appellant with mental health problems, and the witness statement made it perfectly clear that it was based on information given by the father and brother about what had happened to the appellant.
17. The respondent submitted a rule 24 response saying in essence that the appellant’s credibility was clearly challenged, that the reference to the different lengths of detention between the psychiatric report and what the father and brother declared was a challenge to the expert report, that the expert did not have access to the medical records, that the FTTJ did not dispute the mental health diagnoses, and that the FTTJ was aware of the appellant’s vulnerabilities.
18. I discussed my preliminary thoughts with the representatives at the hearing, and having heard those thoughts, Ms Simbi did not make any further submissions and agreed that the appeal should be remitted to the First-Tier Tribunal for hearing by another judge with no findings preserved.
19. The FTTJ made no findings about the appellant’s mental health condition. Contrary to the rule 24 response, it is by no means obvious that the FTTJ accepted the mental health diagnoses, indeed it is not at all clear what his conclusions were about the appellant’s mental health. Precise findings about the appellant’s mental health condition were relevant not just for the credibility of the appellant’s account as far as his protection claim was concerned but also for Article 8 ECHR, his ability to reintegrate into society in Sri Lanka. As Ms Miszkiel reminded me, the appellant’s counsel submitted to the FTTJ that it was not just the psychiatric report but the other medical evidence and also the appellant’s mistreatment which was relied upon to explain the inconsistencies – yet the FTTJ concluded at [45] that the appellant relied exclusively on the expert report to address the inconsistencies in this evidence. That was simply not right. I observed to the representatives that the asylum interview record was also consistent with the appellant suffering from mental health problems. The FTTJ’s decision was not adequately reasoned therefore.
20. I also agree that in circumstances where the respondent had not challenged the expert report as can be seen from the review (the issue appearing to be simply whether the appellant could access appropriate treatment in Sri Lanka), procedural fairness required that the FTTJ raise with the appellant’s counsel the problems he considered there were with the psychiatric report, if he was considering finding that the psychiatric assessment was so defective that he could give it no weight at all. This was because the appellant might have been advised that in the circumstances the psychiatrist should be called to give evidence (in the way that he might have been if the review had raised issues with the report) or at least put in a further report.
21. The grounds referred to the case of Abdi v Entry Clearance Officer [2023] EWCA Civ 1455. That case referenced TUI UK Ltd v Griffiths [2023] UKSC 48 which emphasised that fairness generally required that if the evidence of a witness is to be rejected, it should be challenged at the hearing to give them an opportunity to address the challenge. It is right that the Supreme Court explained that the rule is subject to certain exceptions and is to be applied flexibly in the circumstances of the individual case, but I do not consider that any of the exceptions relating to experts apply in this case (see [63] – [68]). There was not a bold assertion of opinion without any reasoning to support it [63], there was not an obvious mistake on the face of the report [64], the evidence of the facts was not contrary to the basis on which the expert expressed his view [66] (the expert was aware that the appellant had gone missing for 10 years or so) and this was not a case where an expert had already been given a sufficient opportunity to respond to criticisms of his report [67]. The FTTJ was criticising the adequacy of the psychiatrist’s reasoning which had not been criticised by the respondent; so a matter which should, at the least, have been put to the appellant’s counsel. It was not. The only query the FTTJ raised with the appellant’s counsel about the report was the role of the brother in the appellant’s assessment by the psychiatrist.
22. The errors I have referred to, which are relevant to the central issue of the appellant’s credibility, mean that the decision must be set aside. I discussed with Ms Miszkiel whether given country guidance the appellant would be at risk in Sri Lanka even if his account were found to be credible, but she rightly pointed me to the contention that the authorities would still be interested in his past activities.
23. As credibility must be considered afresh, the case must be remitted to the First-Tier Tribunal for decision with no findings preserved.
24. Ms Miszkiel indicated that an updated medical report was contemplated. I said that I would record that it would be helpful for the respondent to make clear her position about any medical reports (noting that the respondent appeared in their review to have accepted the appellant’s claimed medical conditions and not to have challenged the original psychiatrist’s report) and in particular whether the makers of any medical reports were required for cross-examination.

Notice of Decision
The judge’s decision contains material errors of law and is set aside.
The appeal is remitted to the First-Tier Tribunal (Hatton Cross) to be decided by another judge with no findings preserved.

A-R Landes

Judge of the Upper Tribunal
Immigration and Asylum Chamber

8 September 2026