Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003580

First-tier Tribunal No: PA/67255/2024
LP/02638/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 6th January 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE DEAKIN

Between

MZ
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms McCarthy (Counsel) instructed by Law Lane Solicitors
For the Respondent: Ms Kerr, Senior Home Office Presenting Officer

Heard at Field House on 2 December 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, [the appellant] (and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) 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 (and/or other person). Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Introduction

1. This is an appeal, with permission, against a decision of First-Tier Tribunal Judge O’Rourke in which he refused the Appellant’s appeal, made pursuant to section 82(1)(a) of the Nationality Immigration and Asylum Act 2002, against the Secretary of State’s decision to refuse her claim for protection.

Background

2. The Appellant is a citizen of Georgia. She is suffering from breast cancer. The Appellant made a protection claim on 22 April 2022. The Home Office refused the Appellant’s claim by letter of 10 June 2024. The Home Office did not accept that the Appellant had a well-founded fear of return to Georgia and did not accept that her rights under Article 3 ECHR would be violated on medical grounds should she be returned to Georgia.

3. The Appellant appealed to the First-tier Tribunal. Her appeal came before the Judge on 22 April 2025. The Judge did not find the Appellant to be a credible witness (Determination §19). On that basis he rejected the Appellant’s account of events in Georgia and determined that the Appellant was not at risk of harm on return (Determination §20). The Judge went on to “briefly consider” the issues of protection and relocation and held that the Appellant would enjoy sufficiency of protection should she return to Georgia and that relocation was open to her (Determination §20).

4. As to the Appellant’s Article 3 ECHR medical claim, the Judge accepted that the Appellant was suffering from breast cancer and that she was undergoing treatment (including chemotherapy). The Judge did not accept that the Appellant was suffering from Stage 4 cancer. The Judge noted further that the Appellant had provided no evidence as to the availability of equivalent treatment in Georgia. The Judge concluded that he was “… in no position to conclude that Article 3 is engaged, to the high threshold set in AM (Zimbabwe)” (Determination §22).

5. The Appellant brings this appeal on three broad grounds, namely: the Judge erred in his assessment of the Appellant’s credibility (Ground 1), the Judge “procedurally erred when making findings of fact and failed to apply the presidential guidance” (Ground 2) and “Article 3 findings are not sustainable and erroneous” (Ground 3). Each ground is divided into multiple sub-grounds. I address them in turn.

Ground 1: Errors in assessment of credibility

6. At §19 of his Determination, the Judge concluded that the Appellant was not a credible witness due to a number of “inconsistencies, gaps in evidence, or lack of plausibility in [the Appellant’s] account” namely:

i. That despite being married to her husband for ten years, she was unaware that he was a mafia member.
ii. Her inconsistent evidence as to whether or not demands were made of her to repay her husband’s debt. This seems unlikely, in view of the possible adverse consequences for her, to be something that she would forget, even as a vulnerable witness.
iii. Her complete failure to provide any evidence of even her husband’s existence, let alone his death, such as photographs of them together, or his death certificate, which, as his widow, she would presumably be able to obtain from public records in Georgia.
iv. The same applies to her approximately twenty years’ life with her cousin. While, in protection appeals, there is no strict requirement for appellants to provide corroborative evidence (ST (Corroboration - Kasolo) Ethiopia [2004] UKIAT 00119), that is unless such evidence was readily available and there was no good reason for it not be provided, which I consider to be the case in this appeal.
v. Her lack of curiosity, over approximately twenty years, as to her cousin’s source of income.
vi. Her inconsistent evidence as to whether or not she sought the help of the police following the threats to her and the belated additional oral evidence, despite attending an interview and providing two statements, as to threats from the mafia against doing so.
vii. Her ability, despite the apparent danger from the mafia and their connections and omnipresence, to stay safely with a friend in Georgia for nearly a year.

7. At §6.1-6.6 of her Grounds of Appeal, the Appellant argues that the Judge erred in relying on these findings to support his adverse credibility findings. I address each of the Appellant’s arguments below:

8. First the Appellant argues that “it is not obvious why A would necessarily know of [her husband’s] membership of the Mafia given the secrecy with which such groups normally operate” (Grounds §6.1). The Judge did not, however, find that the Appellant would “necessarily” have known that her husband was a member of the Mafia. On a reasonable reading of his determination, he found the claim that the Appellant was not aware of this fact to be implausible given her long marriage. In my judgment the Appellant’s complaint amounts to a disagreement with a finding of fact that was reasonably open to the Judge to make.

9. Second in relation to §19(ii) of the Determination, the Appellant argues that the Judge “ignores the obvious point that she was not a party to the debt so had no direct knowledge of the arrangement…”(Grounds §6.2) I do not accept that there is merit in this sub-ground. The Judge’s finding plainly refers to the inconsistent position taken by the Appellant in relation to demands for repayment of her late husband’s debt as recorded at §12 of the Determination.

10. Third the Appellant argues that it was “unreasonable to take an adverse point against A about providing a death certificate for her 2nd husband (sic) or photos of them together given the lack of dispute as to his death.” (Ground §6.3) and, further, the Appellant “could not reasonably have been expected to retain evidence as to the death of her first husband of (sic) photos of their relationship given that he passed away around 25 years ago.” (Grounds §6.4).

11. I do not accept that this sub-ground shows any unreasonableness in the Judge’s approach. It was, in my view, open to the Judge to rely on the Appellant’s failure to produce any evidence of her relationship with her first husband (especially given her explanation for this recorded at §8 of the Determination) to support his overall finding of gaps and implausibilities in the Appellant’s account. The Appellant’s complaint again amounts to a disagreement with the Judge’s approach. It does not disclose any error of law.

12. Fourth the Appellant argues that, in reaching his conclusion on §19(v) the Judge “makes an adverse finding on an irrelevant matter (the funding of her bakery) when assessing A’s credibility” (Grounds §6.5). Counsel for the Appellant expanded on this in oral argument and submitted that (i) the Judge had failed to consider that the Appellant had provided an explanation for the source of the funds – namely the buying and selling of car parts (Determination §9) and (ii) that the Judge had failed to consider that there was no reason for the Appellant to enquire as to the source of the funds. I do not accept that the Judge erred as claimed. It is unclear how the Appellant’s cousin could both have no job and be in the business of buying and selling car parts. In any event, the Appellant’s alleged unpaid debts certainly suggest that his income was not sufficient to meet his needs and fund the Appellant’s bakery. Against that background I find that it was open to the Judge find that the Appellant’s account suggested a lack of curiosity as to her cousin’s income. This is, in fact, confirmed by the Appellant herself in her witness statement at §14: “I never really asked him where he had accumulated the funds from however, as far as I was aware, he was not employed”. Further, this does not seem to me to be an irrelevant matter and I find that the Judge was entitled to rely on this when considering the Appellant’s credibility.

13. Fifth the Appellant argues that the inconsistency relied on by the Judge at §19(vi) (i.e. whether or not she sought the help of police) is not adequately explained given the weight placed on it by the Judge (Ground §6.6). In my view there is no merit in this sub-ground. The inconsistency is clear and clearly articulated by the Judge at §11 of the Determination (i.e. the Appellant’s statement recorded that she had sought help from the police whereas, in oral evidence, she stated that she had not done so).

14. It follows that, in relation to the Appellant’s protection claim, Ground 1 discloses no error of law.

15. At §6.7 of her Grounds the Appellant argues that “given that it was accepted that [the Appellant] had breast cancer it is […] perverse to come to a finding that her cancer had not progressed to stage 4 given that this aspect of the evidence was not in issue.”

16. While I do not accept that the Judge made a positive finding that the Appellant’s cancer had not progressed to Stage 4, it is clear that the Judge did not accept that it had reached that stage (Determination §22). The point was not in issue and the Appellant had no reason to consider that it would be in issue. This is made clear in the Determination itself which records the then Counsel for the Appellant’s submission that “As to Article 3, the Appellant’s diagnosis of stage 4 breast cancer has not been disputed” (§18(viii)). I note also that (i) neither the Secretary of State’s Decision Letter of 10 June 2024 nor the Appeal Skeleton Argument challenge this claim and (ii) before me the Home Office Representative did not identify any proper basis for going behind this concession.

17. As such, I find that it was not properly open to the Judge to go behind the position taken by both parties that the Appellant is, in fact, suffering from Stage 4 breast cancer. In my judgment the Judge’s doing was unfair and constituted an error of law. I will address the materiality of this error below.

Ground 2: Procedural Errors

18. In her Ground 2 the Appellant argues that the Judge “procedurally erred when making findings of fact and failed to apply the presidential guidance” (Ground §7). The Appellant again developed her claim by way of multiple sub-grounds. I will address these in turn.

19. First the Appellant argues that the Judge’s findings at §19 ‘mirror’ the submissions of the Secretary of State and that this is “contrary to the Judge’s duty to anxiously scrutinise all material aspects of the appeal and raises obvious fairness issues.” (Grounds §7.1). In my view this sub-ground of appeal discloses no error of law. The Judge was plainly entitled to prefer the Home Office submissions and structure his decision in a broadly similar way to those submissions.

20. Second the Appellant argues that the Judge failed to make a finding on ‘key’ evidence of the Appellant’s sexual abuse while, unfairly, making findings on matters that were not in dispute (the stage which the Appellant’s cancer had reached) (Grounds §7.3 – I note that the paragraph numbering in the Grounds is out of order). I have addressed the Judge’s approach to the Appellant’s diagnosis above. I do not accept that the Judge failed to make findings as to the Appellant’s sexual abuse. The Judge rejected the Appellant’s account of events in Georgia in their entirety (Determination §20). This sub-ground discloses no error of law.

21. Third the submissions at Grounds §§7.2, 7.4-7.6 can be taken together.

22. The Appellant argued that (i) the Judge failed to direct himself to Joint Presidential Guidance Note No 2 of 2010 as required (ii) that, save for mentions at §§18 and 19(ii) of the Determination, there “is nothing to indicate that A has been treated as a vulnerable witness”; (iii) the Judge failed to record whether he concluded that the Appellant was a vulnerable witness (as required by para. 15 of the Guidance); (iv) the Judge “ignores the impact of A’s past chemotherapy and treatment for breast cancer on her evidence” and (v) the Judge failed “to give a balanced and sensitive consideration of the evidence in accordance with the Joint Presidential Guidance on Vulnerable Witnesses and Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367”.

23. The Home Office Representative submitted that the Judge was not required to rehearse the Guidance and Equal Treatment Bench Book. She relied on Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 and submitted that the Judge could be taken to be aware of the relevant authorities and was not required to rehearse them. She submitted that, in any event it was conceded that the Appellant was vulnerable and it can be seen from §19(ii) of the Determination that this was in the mind of the Judge throughout the judgment.

24. While I accept that the reasons provide by a Judge at first instance need not be extensive, the reasons for a decision must reasons must enable the reader to understand why the matter was decided as it was, what conclusions were reached on the main issues in dispute, and be sufficient to enable an appellate body understand why the decision was reached so that it is able to assess whether the decision involved the making of an error on a point of law (see the Practice Direction from the Senior President of Tribunals: “Reasons for decisions” (June 2024)). In my judgment the Judge’s determination does not satisfy these requirements.

25. The Judge did not record in his determination whether or not he accepted that the Appellant was a vulnerable witness and he did not record the effect that any vulnerability had on his assessment of the Appellant’s evidence (as required by §15 of the Guidance Note). Further, it is not possible infer the Judge’s findings on either point with any confidence. For the avoidance of doubt I do not accept that the Judge’s recording of Counsel for the Appellant’s submission that his client fell to be treated as a vulnerable witness (Determination §18(i)) or the Judge’s finding that the she would be unlikely to forget the demands to repay her debt “even as a vulnerable witness” demonstrate that the Appellant was treated as a vulnerable witness throughout still less that they indicate how the Judge considered the Appellant’s vulnerability (if any) to have affected her evidence. In my view these failures constitute a material errors of law.

26. Further, as a result of the Judge’s failure to set out his findings on vulnerability and his reasons for the same, it is not possible to assess whether the Judge’s failure to proceed on the basis that the Appellant’s cancer had progressed to Stage 4 impacted on his approach to vulnerability. In my view this supports my conclusion that the Judge erred in failing to adequately address the issue of the Appellant’s vulnerability.

27. Fourth Grounds §7.7-7.9 appear to relate to a different case. In any event they were not addressed in oral submissions, have no bearing on the issues in the present appeal, and I do not consider them further.

Ground 3: Article 3 ECHR

28. The Appellant argues that (i) the Judge’s approach to her Article 3 medical claim is “undermined by the adverse finding made as to the unchallenged fact that A had stage 4 cancer” (Grounds §8.1) and (ii) that the Judge’s “failure to treat the A as a vulnerable witness in practice implies a failure to take a rounded fact sensitive approach to an application of AM Zimbabwe principles” (Ground §8.2). The Appellant goes on to argue that these failures are significant “given the background material as to a lack of recognised medical facilities in Georgia able to treat breast cancer at an advanced stage” (Ground §8.3).

29. I will address these in turn.

30. I accept that the Judge erred in his approach to the Appellant’s Article 3 ECHR medical claim by failing to proceed on the unchallenged basis that her cancer had progressed to Stage 4 (as I have addressed above).

31. I do not accept that the Judge’s “failure” to treat the Appellant as a vulnerable witness implies that he failed to properly apply the principles articulated in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17. As I have set out above, it is not clear whether the Appellant was in fact treated as a vulnerable witness and, in any event, treating her as a vulnerable witness and the proper application of AM (Zimbabwe) are conceptually distinct exercises. An error in the Judge’s approach to one does not demonstrate an error in his approach to the other.

Materiality

32. For the reasons set out above I find that the Judge erred as pleaded in Grounds 1 and 3 by not proceeding on the accepted basis that the Appellant’s cancer had progressed to Stage 4. Were these errors material to the outcome of his decision?

33. First in my view the stage which the Appellant’s cancer has reached is potentially relevant to an assessment of whether the Appellant should be treated as a vulnerable witness and, if so, what steps should be taken to mitigate that vulnerability. I cannot be satisfied that the Judge’s failure to proceed on the unchallenged basis that the Appellant’s cancer was advanced did not impact on his approach to vulnerability and hat error potentially affected his approach to the Appellant’s credibility. As such I find his errors to be material on this basis.

34. For the avoidance of doubt, and while not expressly raised by the Secretary of State, I note that the fact that the Judge went on to find that the Appellant would enjoy sufficiency of protection and could relocate (Determination §21) does not render this error not material. The Appellant gave direct evidence on both points. That evidence appears to have been rejected by the Judge. Given that it is not clear whether the Judge treated the Appellant as vulnerable and, if so, how he treated her evidence, I cannot be satisfied that the Judge properly reached the view that the Appellant would enjoy sufficiency of protection and/or could safely relocate should she be returned to Georgia.

35. Second the state of progression of the Appellant’s cancer is also relevant to consideration of whether her removal to Georgia would breach her rights under Article 3 ECHR. However, in light of AM (Zimbabwe) v Secretary of State for the Home Department [2022] UKUT 00131 (IAC) (a remaking of AM’s appeal following the Supreme Court’s decision in this case cited above) the burden was on the Appellant to adduce evidence capable of demonstrating that she (i) was a seriously ill person and (ii) that as a seriously ill person she would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in her state of health resulting in intense suffering, or to a significant reduction in life expectancy.

36. In my judgement the Appellant, who was represented, did not produce evidence capable of discharging this burden. The Appellant plainly led sufficient evidence to demonstrate that she was a seriously ill person. However, she did not lead evidence about the progress of her condition or the availability of treatment in Georgia that could have led to a successful Article 3 ECHR medical claim. The Appellant’s evidence at §28 of her witness statement is not sufficient to make out an AM (Zimbabwe) claim. The Appellant led no objective evidence going to the state of cancer care in Georgia or her prognosis should she be removed. I note that the Secretary of State linked to objective evidence regarding cancer care in Georgia in the Decision Letter. I am unable to access footnote 4 “Medical Oncology – American Hospital Tbilisi” and was not referred to this during the appeal. I was, however, referred to Footnote 5 of the Decision Letter. This is an article from 18 December 2023 entitled “The City of Tbilisi is leading nine cancer care projects as part of their public health”. While this article is mainly concerned with improvements to cancer care in Georgia, and so necessarily suggests that there are improvements to be made, I do not accept Counsel for the Appellant’s submissions that this document materially assists in establishing that the Appellant would not be able to access appropriate treatment for her condition if returned to Georgia, still less what the consequences of that would be.

37. As such, I find that even if the Judge had proceeded on the basis that the Appellant’s cancer had progressed to Stage 4 as he should have done, given the lack of evidence as to the Appellant’s prognosis should she be returned to Georgia and/or the kinds of treatment that would be available to the Appellant were she to be returned, the Appellant could not satisfy the AM (Zimbabwe) test in any event. I therefore conclude that the Judge’s failure to proceed on the basis that the Appellant’s cancer had reached Stage 4 was not material to his conclusions as to the Appellant’s Article 3 medical claim.

Further Evidence

38. On 27 November 2025, the Appellant’ solicitors applied to adduce new evidence relating the Appellant’s cancer and the availability of cancer treatment in Georgia. The application was explicitly made on the basis that it was in connection with the remaking should an error of law be found.

39. Before me, Counsel for the Appellant invited me to have regard to some of that evidence, namely a consultant’s letter dated 31 March 2025, when considering whether the Judge’s determination contained an error of law. Counsel for the Appellant argued that I should have regard to the consultant’s letter on the basis that it demonstrated the Appellant was, in fact, suffering from Stage 4 metastatic breast cancer and so demonstrated a clear error of fact on the part of the First-tier Judge. She argued that the letter predated the First-tier hearing, and that, as the Appellant struggled with English, her solicitors had found it difficult to identify relevant documents for the First-tier hearing.

40. This application was opposed by the Home Office representative, who submitted that the Judge had made no positive finding that the Appellant was not suffering from Stage 4 cancer. He had found only that he did not have sufficient information before him to come to a positive conclusion on the point and that this was correct.

41. While it was not cited in argument, I proceed on the basis that, in deciding whether to admit fresh evidence, I should apply the principles set out by the Court of Appeal in Ladd v Marshall [1954] 3 All ER 745 and take into account the overriding objective provided for at Rule 2 of the Tribunal Procedure (Upper Tribunal) Rules 2008. Those principles are that:
a. it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;
b. the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; and
c. the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.

42. In my view it would not be appropriate for me to admit this evidence at this stage.

43. Insofar as it relates to the Appellant’s medical condition and prognosis, the 31 March 2025 letter could with reasonable diligence have been obtained and provided to the Tribunal in advance of the First-tier hearing. The material was obviously relevant and I do not accept that the Appellant’s poor English provides a reasonable justification for failing to adduce this letter at first instance. Insofar as the Appellant seeks to rely on this letter to demonstrate that her cancer had in fact progressed to Stage 4, that point was (and is) not in dispute, the Judge erred in proceeding on the basis that it was, and so admitting the letter to prove the stage the Appellant’s cancer has reached would serve no purpose.

Summary

44. For the reasons set out above I find that the Judge materially erred in unfairly failing to proceed on the basis that the Appellant’s cancer had reached Stage 4; failing to make a finding as to whether the Appellant was to be treated as a vulnerable witness and if not, why not, and failing to explain what steps (if any) were to be taken to mitigate the impact of that vulnerability on her evidence. In light of those failings I am not satisfied that the Judge’s approach to the Appellant’s evidence was lawful and so not satisfied that his credibility findings are safe.

45. I therefore set the Judge’s decision aside in its entirety. Given that the fairness of the first-tier proceedings is in issue, it is appropriate for this mater to be remitted to the First-tier Tribunal for redetermination.

Notice of Decision

1. Appeal allowed.
2. No findings of fact are preserved.
3. The matter is to be remitted to the First-tier Tribunal for redetermination by a different Judge.

Andrew Deakin

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

19 December 2025