Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003679
UI-2025-003681

First-tier Tribunal No:
HU/52468/2024 LH/52469/2024
HU/52469/2024 LH/07619/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 5 January 2026

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

Olga Melnyk
Serhii Voitovich
(NO ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr J Norman, counsel instructed by Sterling and Law Associates LLP
For the Respondent: Ms McKenzie, Senior Home Office Presenting Officer

Heard at Field House on 17 December 2025

DECISION AND REASONS
Introduction
1. The appellants have been granted permission to appeal the decision of a First-tier Tribunal Judge who dismissed their appeal following a hearing which took place on 2 May 2025.
2. Permission to appeal was granted by Upper Tribunal Judge Blundell on 11 September 2025.
Anonymity
3. The First-tier Tribunal did not issue an anonymity order. I take into account the principle of open justice and see no reason to make an order, so none is made.
Factual Background
4. The appellants are nationals of Ukraine and are a married couple aged in their forties. They arrived in the United Kingdom on 1 July 2014, in possession of transit visas. The first appellant experienced serous medical issues in 2018 and was treated in the United Kingdom.
5. The appellants unsuccessfully applied for leave to remain in the United Kingdom on medical grounds on 12 February 2020. Their appeal against those decisions was dismissed on 10 June 2021, and their appeal rights were exhausted on 21 November 2023. Thereafter the appellants unsuccessfully applied for leave to remain under the Ukraine Scheme.
6. On 22 June 2023, the appellants sought permission to stay in the United Kingdom on the basis of their private lives.
7. That application was refused in a decision dated 27 February 2024. In summary, the respondent concluded that the appellants could not meet any of the requirements of the Immigration Rules, that there were no exceptional circumstances and the removal of the first appellant would not result in a breach of Article 3 ECHR on medical grounds. In addition, the respondent commented that the appellants had been invited to submit asylum claims owing to the situation in Ukraine but had declined to do so. That was said to have adversely affected the credibility of their claim to be at genuine risk in Ukraine. The respondent clarified that no decision had been made to remove the appellants to Ukraine owing to the conflict. Reference was also made to the ability of Ukrainian nationals to apply for leave to remain in another European country under the Temporary European Directive.
The decision of the First-tier Tribunal
8. Following the hearing before the First-tier Tribunal, the appeal was dismissed for similar reasons to those given by the Secretary of State.
The appeal to the Upper Tribunal
9. The grounds of appeal can be summarised as follows:
Ground One – Failure to consider material facts in relation to location of treatment
Ground Two – Failure to consider all the evidence in relation to healthcare in Ukraine
Ground Three – Misdirection of law for the test in very significant obstacles
Ground Four - Misdirection of law for the test in Article 3
Ground Five – Misdirection of Law by conflating Article 8 and Article 3
10. Permission to appeal was granted on the basis sought, with the judge granting permission making the following remarks.
I am persuaded that there are arguable errors of law in (the judge’s) dismissal of the appellants’ human rights appeals, but only by a narrow margin. The claims were predicated to a significant extent on the first appellant’s ill health and the war in their country of nationality, Ukraine. As the judge noted throughout her decision, however, the first appellant’s doctors consider that she is presently well. As the judge also noted, there is evidence to suggest that the health service in Ukraine continues to function despite the war.
Whilst the grounds target the latter conclusion, they say nothing about the former, which might ultimately mean that this case was likely to fail from the outset. It is arguable, however, that the judge overlooked background material about the country’s health and transport infrastructure (grounds one and two) and that the judge misdirected herself in law in relation to the test of very significant obstacles, Article 3 and Article 8 ECHR (grounds three to five). Whilst I very much doubt, in light of the medical evidence, that there was a viable Article 3 ECHR case here, I do not make any direction limiting the scope of the arguments which might be advanced before the Upper Tribunal.
11. The respondent filed a Rule 24 response dated 30 September 2025, in which the appeal was opposed, with the following comments being made.
1) In summary, the grounds of appeal allege that the First-tier Tribunal Judge materially misdirected himself in law by applying the incorrect test when assessing whether there are “very significant obstacles” to the Appellant’s integration in Ukraine. It is further alleged that the Judge failed to make findings on the availability and accessibility of healthcare in light of the ongoing conflict.
2) The Respondent submits that, when read in context, the grounds are weak and amount to no more than a disagreement with the Judge’s assessment of the evidence. The language used by the Upper Tribunal Judge when granting permission to appeal reflects this, and when the determination is considered alongside the accepted facts, no material error of law is disclosed.
3) The grounds assert that the Judge failed to consider how the Appellant would travel to receive medical treatment given the damage to infrastructure. However, the grounds do not challenge the findings made at paragraphs [12] and [13] of the determination, where the Judge noted that the Appellant’s mother had returned to Ukraine and was accessing medical care at a clinic. This undermines the claim that healthcare is inaccessible or that travel within Ukraine is impossible.
4) It remains the Appellant’s responsibility to demonstrate that she would be unable to travel to Kyiv or other areas where medical treatment is available. The Judge considered the objective evidence but was not directed to any material indicating that internal travel is wholly unfeasible. The Respondent draws attention to the Country Policy and Information Note (CPIN) Ukraine: Humanitarian Situation (January 2025), paragraph 5, which addresses internal relocation in areas away from active conflict. This CPIN was the most recent version available at the time of the hearing. It is unclear which CPIN is relied upon at paragraph [8] of the grounds of appeal.
5) The Appellant has not provided expert medical evidence to support the assertion that she would be unable to travel for treatment or that her health would deteriorate rapidly upon return. The medical records presented indicate that her condition is stable. In the absence of expert evidence, the Judge was entitled to conclude that Article 3 ECHR was not engaged.
6) In relation to the grounds regarding the correct test for very significant obstacles, these appear to be erroneous as they state the judge erred in requiring something more than hardship, inconvenience or upheaval. The grounds then go onto cite the case law which affirms that is exactly what needs to be shown. The grounds fail to engage with the Judge’s findings at [16] in particular regarding the presence of the Appellant’s family in Ukraine, which is a relevant factor in assessing integration.
The error of law hearing
12. The matter comes before the Upper Tribunal to determine whether the decision contains an error of law and, if it is so concluded, to either re-make the decision or remit the appeal to the First-tier Tribunal to do so. A bundle was submitted by the appellant containing, inter alia, the core documents in the appeal, including the appellant’s and respondent’s bundles before the First-tier Tribunal. That was followed by a skeleton argument.
13. The hearing was attended by representatives for both parties as above. Both representatives made submissions, and the conclusions below reflect those arguments and submissions where necessary.
14. Permission was sought out of time to raise a sixth ground, that there was a failure by the judge to properly to assess the public interest in removal given that the respondent stated that there was no intention to remove the appellants during the currency of the conflict. I granted permission to appeal on this point having heard legal argument from Ms Norman.
15. At the end of the hearing I informed the parties that I was satisfied that the decision of the First-tier Tribunal contained material errors of law.
Discussion
16. I find that there was a failure by the First-tier Tribunal to consider the material facts and the totality of the evidence before her prior to concluding that the appellants could return to Ukraine and that the first appellant could receive medical treatment in Kyiv.
17. There was evidence before the judge in the form of the background material including the respondent’s CPIN on Ukraine, which concerned the attacks by Russia on Ukrainian healthcare and transport. The reports speak of the considerable damage to infrastructure and hospitals as a result of the war. The appellant’s evidence was that although she was no longer as unwell as previously, she was not fully recovered and she still required regular checkups and titration of her medication. It follows that the safety of the appellant’s journey from her home in Lviv to access treatment in Ukraine was a relevant factor.
18. It is noted at [9] of the decision that the judge states that she has considered all the evidence even if not mentioned. However, if the judge rejected this background material, which was relevant to the facts of the case, it is not apparent from the decision owing to the absence of any reasons.
19. The CPIN of December 2024 was before the judge in the form of a link in the appellant’s skeleton argument, supplemented by oral submissions which focussed on part 12 of the said report, entitled, ‘Attacks on public infrastructure.’ To paraphrase that material, it is recorded that Russian forces continued to carry out attacks on hospitals, residential areas and obstructed access to health, education, energy and transport.
20. A quote from the Ukrainian Healthcare Center described ‘… the staggering toll that Russia’s aggression has had on Ukraine’s health care system since February 2022. Using 10 case studies and a joint dataset of attacks, this report shows how Russia appears to be violating international humanitarian law by deliberately and indiscriminately targeting Ukraine’s health care system as part of a broader attack on its civilian population and infrastructure.’ Reference is also made in the CPIN to medical facilities in Lviv being targeted by Russian forces.
21. The judge’s findings in relation to Article 3, Very Significant Obstacles and Article 8 more generally are confused and the tests either not apparent or conflated. At [6] (which is on page 2, there being another paragraph 6 on page 4) the judge begins her consideration of Article 3 ECHR, but refers to the test for very significant obstacles, as follows:
The war in Ukraine engages Article 3 of the European Convention on Human Rights in respect of very significant obstacles to return to Ukraine
22. To be fair, at the paragraph 6 on page 4, the judge refers to the correct authorities in respect of Article 3. In the paragraph following paragraph 7 on page 4 (there being two paragraphs 7) which is inexplicably numbered [11], the judge considers the appellant’s claim that there are very significant obstacles to her integration. At [15], the judge concludes that there would be no breach of Article 3. The findings are so muddled that it is difficult to say what tests the judge employed in assessing Article 3 and very significant obstacles.
23. There is also no consideration here of the appellant’s ability to access medical treatment owing to the evidence of damage to infrastructure set out in the background material. This was a matter which required adjudication owing to the findings of the earlier Tribunal in 2021 that the appellant was ‘likely to have access to the medication she needs.’
24. The judge’s separate consideration of very significant obstacles is at [16] and set apart from the proportionality assessment under Article 8 ECHR and is flawed owing to the lack of consideration of the aforementioned background material.
25. I also find there to be merit in the additional ground. At [21] the judge concluded her proportionality assessment, stating that it was ‘proportionate to remove’ the appellants and that ‘a fair and orderly immigration control trumps’ the appellants rights. Nowhere was there an assessment of the public interest which factored in that the respondent had no intention to remove the appellants during the currency of the conflict. Nor was there any consideration of whether the weight to be attached to the public interest was to be reduced in such circumstances, applying GS (Article 8, public interest not a fixity) Serbia and Montenegro [2005] UKAIT 00121.
26. The findings of the First-tier Tribunal are unsafe and I set aside with none preserved.
27. I canvassed the views of the parties as to the venue of any remaking. Ms Norman was of the view that the matter ought to be remitted if there were no preserved findings of fact whereas Ms McKenzie thought that it should be retained in the Upper Tribunal. Applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), I carefully considered whether to retain the matter for remaking in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statements. I took into consideration the history of this case, the nature and extent of the findings to be made as well as the fact that the nature of the errors of law in this case meant that the appellants were deprived of an adequate consideration of their appeals. I further consider that it would be unfair for either party to be unable to avail themselves of the two-tier decision-making process and therefore remit the appeal to the First-tier Tribunal.
Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
The decision of the First-tier Tribunal is set aside.
The appeal is remitted, de novo, to the First-tier Tribunal to be reheard by a different judge.

T Kamara

Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 December 2025