Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003395
PA/52256/2022
IA/05952/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

8th of October 2025

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

MK (Côte d'Ivoire)
(by his litigation friend the Official Solicitor)
(anonymity order made)
Respondent

Representation:

For the Appellant: Mr Diwnycz, Senior Home Office Presenting Officer
For the Respondent: Ms Radford, Counsel instructed by Duncan Lewis Solicitors

Heard at Phoenix House (Bradford) on 1 October 2025

Anonymity

Unless and until a tribunal or court directs otherwise, the Respondent MK is granted anonymity. No report of these proceedings shall directly or indirectly identify him, or any member of his family. This direction applies to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings

DECISION AND REASONS

1. The Respondent is a national of the Côte d'Ivoire1 born in 1988. On 10 April 2025 the First-tier Tribunal allowed his appeal on both protection and human rights grounds. The Secretary of State now has permission to appeal against that decision.

The First-tier Tribunal Decision

2. Before the First-tier Tribunal the Respondent advanced four alternate heads of claim:

i) That he had a well-founded fear of persecution in the Ivory Coast for reasons of his membership of a particular social group: those suffering from serious mental illness. The Respondent has been diagnosed with schizophrenia by a Consultant Psychiatrist. He relied on expert country evidence to the effect that individuals suffering from chronic psychosis and related mental ill-health are viewed with suspicion and hostility and that there is a real risk that they would be subject to persecutory ill-treatment including whipping, starving and the “common practice” of being chained up;

ii) That he had a well-founded fear of persecution for reasons of his imputed political opinion. The Respondent asserted that prior to his arrival in the United Kingdom in 2006 he was abducted and detained on suspicion of being sympathetic to the opposition. He avers a fear of that happening again;

iii) His illness is of sufficient severity, and the lack of treatment in the Ivory Coast such, that there are substantial grounds for believing that there is a real risk that if returned there he would face a rapid, serious and irreversible decline in his mental health, and concordant living conditions such that the UK would be in breach of its Treaty obligations under Article 3 ECHR;

iv) That all of the above amount to ‘very compelling circumstances’ such that the appeal would fall to be allowed with reference to Article 8 ECHR/s117C(6) Nationality, Immigration and Asylum Act 2002.

3. The Tribunal rejected (ii) on the grounds that the historical account advanced by the Respondent was unproven, and that in any event there were good reasons to believe that any persecution, if it had occurred, would not be renewed in the future, given the passage of time. It accepted that the burden of proof had been discharged in respect of all other heads of claim and the appeal was allowed on that basis.

The Grounds of Appeal: Discussion and Findings

4. The Secretary of State’s grounds relate to two aspects of the Tribunal’s decision.

5. The one that specifically attracted a grant of permission concerned the Tribunal’s approach to Article 8 and its failing to mention any of the ‘public interest’ considerations set out in s117C(6) NIAA 2002. That complaint is made out. The decision nowhere makes reference to those mandatory statutory considerations. There is however good reason for that. The Tribunal had already found that the return of the Respondent to the Ivory Coast would put the UK in breach of its obligations under both the Refugee Convention and ECHR and so would be unlawful. In those circumstances there was absolutely no point in conducting proceeding to a full balancing exercise. Article 3 offers absolute protection, so the refusal of leave would inevitably be unlawful and/or disproportionate.

6. I therefore move on to the next head of challenge. This is more difficult to unravel. The grounds read:

6. It is respectfully submitted that Judge Moran failed to consider relevant case law, material to the outcome, having allowed the appeal on the ground that the appellant falls within a convention reason as a member of a particular social group because of his mental health conditions, with reference to DH (Particular Social Group: Mental Health) Afghanistan [2020] UKUT 00223 (IAC) [41].

7. Judge also concluded that article 3 was breached because he was at real risk of being ‘homeless, destitute and without treatment for his serious mental health problems,’ independent of ‘whether the appeal would succeed on the basis of Article 3 on medical grounds alone’ [40].

8. However, it is submitted, that given the appellant is found to fall within a particular social group because of his mental illness, it was incumbent on Judge Moran to have assessed his condition in line with the relevant test as per the most recent Supreme Court judgment in the case of AM (Zimbabwe) [2020] UKSC 17, which is the leading authority on the issue of Article 3 medical claims, to support the claim that he would become destitute because he 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 a significant reduction in life expectancy, as a result of the absence of appropriate medical treatment, or lack of access to such treatment. Both aspects of article 3 are interlinked and should have been considered in the overall analysis of the findings under a convention reason, given judge had also remarked that the extent of adverse treatment towards the appellant on return to the Ivory Coast because of his mental illness could not be quantified, ‘It is difficult to quantify the magnitude of the risk of him being treated this way’ [42].

9. The appellant’s condition is not disputed however it is arguable on the evidence that the appellant would suffer more adversely on return given the evidence presented shows he is not fully compliant with receiving treatment and taking his medication. His GP records show he was last issued medication on 04/01/2023 and several letters have been sent to him for follow up assessments however he has not responded. Furthermore, there is little or no evidence to show positive sustained rehabilitation, other than his mental health is stable when he is taking medication regularly and when he abstains from substance and alcohol abuse which exacerbates his condition. The evidence also indicates he becomes anxious and frustrated owing to his housing situation and lack of funds and he has been homeless, which is not linked to psychotic symptoms. When he is stable, he can perform normally in terms of caring for himself, cooking and travelling and can show resourcefulness. He also has no history of self-harm or suicide.

10. It is submitted that the appellant’s mental health has been challenging to manage by the health professional because of his non-compliance and lack of insight into his condition but it is arguable that he meets the threshold of DH, as concluded.

7. With respect, the author of the grounds is quite wrong to say, in respect of claims (i) and (iii), that “both aspects of article 3 are interlinked”. They are not. Ground (i) is that there is a real risk that the Respondent will be chained up, starved and whipped because there is a widespread perception in the Côte d'Ivoire that people suffering from psychosis are possessed by demons, which must be driven out by these methods. The Tribunal had before it expert evidence to this effect, none of which is subject to challenge in this appeal. Ground (iii) is that the Respondent’s mental health could deteriorate to the point where the illness itself, as well as the practical obstacles it will present him with, will amount to inhuman and degrading treatment. They are two separate things. It is not correct to say that claim (i) requires any consideration of AM (Zimbabwe), because the feared suffering will be deliberately inflicted. AM, and the line of authority it follows, is concerned with the legal and evidential approach to breaches of Article 3 that are ‘naturally occurring’.

8. Nor, I am afraid, is the author of the grounds correct to intimate that the Judge failed to make a clear finding that the burden of proof had been discharged. The full passage, only partially cited at paragraph 8 of the grounds, in fact reads:

42. When relapsing with schizophrenia it is likely to involve positive psychotic symptoms that become very visible to those around him. In her report Ms O’Reilly has cited multiple credible sources that speak to the persecutory (my word) treatment that some mentally ill people are subjected to in Ivory Coast. The treatment that is referred to goes well beyond mere discrimination or prejudice. It is difficult to quantify the magnitude of the risk of him being treated this way. Ms O’Reilly says that there is a high risk. I am not convinced that the background evidence shows that the risk is necessarily ‘high’ but I do find that there is a real risk of him being treated in this way. I am also satisfied that people with chronic psychosis in Ivory Coast share an innate characteristic that cannot be changed. At most they have a characteristic that can be treated to some extent (cf changed) with medication (if it is available and they can access it). Alternatively, they are perceived as being different by the surrounding society and thus have a distinct identity in Ivory Coast.

9. Insofar as the Secretary of State’s grounds seek to challenge the Tribunal’s findings on limb (i) of the Respondent’s case, they are rejected. The Judge looked at the evidence, and reached a finding on the application of the correct standard of proof. The decision in the appeal therefore remains that the ‘appeal is allowed on refugee grounds’.

10. It follows that I need not address the commentary in the grounds about the extent to which MK is compliant with his medication regime in this country, since that has no bearing on whether or not he will suffer the persecutory ill treatment the First-tier Tribunal was concerned about.

Decisions

11. The appeal is dismissed and the First-tier Tribunal’s decision is upheld.

12. There is an order for anonymity, imposed to protect the Respondent’s identity because he is a vulnerable person suffering from a serious illness, details of which are mentioned herein.

Upper Tribunal Judge Bruce
Immigration and Asylum Chamber
1 October 2025