Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-004081

First-tier Tribunal No: PA/63409/2023
LP/04704/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 9th December 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE STAMP

Between

BM
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Collins, Counsel instructed by Wilson Solicitors LLP
For the Respondent: Ms A Ahmed, Senior Presenting Officer

Heard at Field House on 28 November 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and/or member of his family is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant or member of his family, likely to lead members of the public to identify the appellant or member of his family. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Background

1. The appellant appeals, with permission, the decision of first-tier judge Abdar dated 30 June 2025 on the basis that it contains an error on a point of law. The judge dismissed the appeal against the respondent’s refusal of his protection claim on 21 November 2023.

2. The appellant is a national of the Democratic Republic of Congo (the “DRC”) aged 41. The appellant claimed asylum based on his membership of the Union for Democracy and Social Progress, a political movement in opposition to the governing party. Between 2011 and 2015 the appellant had been arrested and subjected to ill treatment due to his political activities. The appellant arrived in the UK on 30 July 2018 via Switzerland and Italy and immediately claimed asylum on arrival.

3. At the time of the asylum interview on 22 November 2022 the appellant was in a relationship with Ms CMM who was seven months pregnant with his child and Ms CMM disappeared or left the appellant before the birth which significantly adversely affected the appellant’s mental state. Subsequent to his arrival the appellant has been living with his sister and her children and has become part of her family.

4. In addition to his claim for asylum, the appellant relied on Article 3 ECHR for a grant of leave to remain based on his health and risk of self-harm on a return to the DRC. In support, the appellant relied on a Medico Legal Report (the “Report”) produced by Dr Myra Stern (the “Expert”) dated 7 March 2025 which considered the psychological and physical impact of the torture the appellant had suffered, the risk of serious harm if the appellant was to return to the DRC and recommendations for his future medical treatment and support.

5. The appellant also claimed Article 8 protection both on the basis of paragraph 276ADE (1) vi of the Immigration Rules that there would be very significant obstacles to his integration on return to the DRC and under Gen 3.2 that there are exceptional circumstances which would render refusal of leave to remain a breach of Article 8 because of the unjustifiably harsh consequences for the appellant or family members.

6. The case was heard by the judge on 15 April 2025 who dismissed the appeal on all grounds. The judge, relying on the country guidance, concluded that there had been a significant and durable change in the DRC since 2018 and the appellant was not at risk of persecution on return. On the Article 3 claim, the judge found that that the appellant’s illnesses did not meet the level of severity required to engage the Article and, in the alternative, that on a return to the DRC a number of aggravating factors on the appellant’s mental health would be removed and anti-depressants would be available such that the Article 3 protection was not available. In addition, given the appellant’s good physical health and family contacts in the DRC there would be no significant obstacles to return nor would there be unjustifiably harsh consequences for the appellant or family members if the appellant was to return to the DRC.

7. Permission to appeal was initially refused by first-tier judge Lester on 11 August 2025.

8. On 2 October 2025 Upper Tribunal Judge Perkins granted permission to appeal on the following basis:

“The Appellant is a citizen of the Democratic Republic of Congo who has been ill-treated because of his moderate opposition to an earlier regime. It is arguable that the Judge should not have rejected the evidence that the Appellant has lost contact with his family in the DRC although the Tribunal may decide that the Judge was entitled to note that the claim did not feature in the medical report and may decide that, contrary to the Appellant’s contention, the Judge did make a finding on the Appellant’s sister’s evidence, namely that the Judge disbelieved her because her evidence was unbelievably vague about something that she could have been expected to remember. I am more concerned that the Judge may have been wrong in concluding that necessary medical care is available in the DRC. In particular, the finding that Sertraline is available is, arguably, unjustified. I give permission on all grounds.”

Submissions

9. Mr Collins relied on his grounds of appeal dated 14 July 2025 and his supplementary grounds dated 23 August 2025. On the first ground that the judge unfairly concluded that the appellant had lost contact with his family because of a contradictory statement in the Report, Mr Collins specifically referred me to paragraph 130 of the Report which highlighted the Expert’s comments on the appellant’s difficulty in recalling details of past experiences and his current life. In addition, the failure by the judge to make a finding on the appellant’s sister evidence of a similar loss of contact was an error of law given the importance of the evidence.

10. On Ground 2, Mr Collins submitted that the judge’s findings on Article 3 “flew in the face” of the conclusions of the Expert in the Report and directed me to the paragraphs set out in his grounds. In addition, the judge’s conclusions on the availability of access to Sertraline or its equivalent in the DRC were wholly unsupportable given no evidence had been presented from which he was able to draw such a conclusion.

11. On Ground 3, the judge, whilst acknowledging that the appellant’s mental health difficulties would impact his ability to re-integrate on a return to the DRC he failed to properly take these difficulties into account in his analysis and referred me to the paragraphs in the Report that he had identified for his second ground of appeal. In addition, his subjective fear of persecution on any return was not properly considered and referred me to NC v Secretary of State for the Home Department [2023] EWCA Civ 1379.

12. On the final ground, the judge failed to take the five-year delay between his claim for asylum and the respondent’s decision into account on his Article 8 analysis contrary to EB Kosovo v Secretary of State for the Home Department [2008] UKHL 41.

13. Ms Ahmed relied on her Rule 24 response dated 15 October 2025. On the first ground, Ms Ahmed directed me to the introductory wording of paragraph 130 and paragraph 132 as evidence of the limited nature of the appellant’s memory issues. In relation to the appellant’s sister evidence, it did not follow that even if one took that evidence at face value that the appellant had also lost contact with his family.

14. On Article 3, the burden of proof to demonstrate engagement of Article 3 was on the appellant and it was a high threshold which the judge was entitled to find had not been met on the basis of all the evidence. In relation to the issue of the availability of Sertraline or its equivalent the burden was on the appellant to demonstrate that it was not available and the judge’s comments reflected this. The judge was also able to take account of the prescription of Sertraline by his GP was not continued.

15. On Ground 3, the judge clearly explained his reasons for not concluding that there were very significant obstacles in paragraph 54 of his decision despite acknowledging the appellant’s mental health challenges.

16. On Article 8, the judge clearly acknowledged the delay in paragraph 57 and took this account in determining whether the decision by the respondent was reasonable and proportionate in the circumstances.

Initial Matters

17. Following correspondence from Wilson Solicitors LLP on 14 November 2025 that they were now representing the appellant and requesting additional time for filing the consolidated bundle, which had been granted, it was uploaded on 25 November. The bundle was inadequate and, in particular, did not include the Report which was essential for a proper analysis of the appellant’s appeal. Nor had the bundle been served on the respondent. Mr Collins acknowledged these inadequacies and apologised on behalf of his instructing solicitors.

18. Wilson Solicitors LLP are reminded of the importance of compliance with Practice Directions of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal and, in particular, paragraph 8 relating to the contents of Trial Bundles.

19. I had been able to access all the necessary documents available to the first-tier judge before the hearing and Ms Ahmed likewise confirmed she had all such information and on that basis the hearing proceeded.

Discussion and Decision

The Medical Report

20. The Report is referred to as supporting evidence in three out of the four grounds of appeal. It is a long report running to 49 pages; indeed, the respondent objected to its inclusion on the basis of its length but the judge, at paragraph 9, allowed it into evidence in the interests of justice. Similarly, the respondent challenged the Expert’s qualifications and experience and her independence given her employment by Freedom from Torture. The judge rejected those concerns and concluded at paragraph 19 that he was satisfied on the expertise of the Expert and treated the Report as reliable. It is clear from the judge’s analysis on these matters that he had carefully considered the entirety of the Report and the methodology on which it was based. Furthermore, the judge, on the evidence, of the Expert treated the appellant as a vulnerable witness for the purposes of the Joint Presidential Guidance Note no. 2 of 2010 (the “guidance note”).

Ground 1 (Loss of family contact)

21. The first ground of appeal is that the judge unfairly rejected the evidence of the appellant losing contact with his family.

22. Mr Collins directed me to the introductory wording of paragraph 130 of the Report which indicated the Expert had observed intermittent difficulty in “recalling details of his past experiences and even of his current life in the UK”. Mr Collins suggested that the judge had not properly taken into account the vulnerability of the appellant when considering the inconsistency of the evidence of loss of contact with his family between the Report and his witness statement. Nor had the judge given the appellant the opportunity to address the discrepancy.

23. There was a clear inconsistency between paragraph 12 of the Report where the appellant stated that he speaks to his wife “once or twice a month” and his oral evidence on his loss of contact with his family. Paragraph 3 of the guidance note states that it is for the judge to determine the extent of the identified vulnerability and determine its impact on the evidence given taking into account the evidence as a whole. This is exactly what the judge did and whilst he expressly acknowledged the appellant’s difficulties with memory in paragraph 33 he was entitled to look at the impact of the vulnerability by reference to all the evidence available to him. In paragraph 130 the Expert noted the appellant’s cognitive function “did not appear impaired and his account was, for the most part, coherent”. Similarly, at paragraph 132 that “...on examination there was no evidence of neurological deficits or of confusion or disorientation on mental state examination”. Indeed, I further note the Expert’s view focussed on the appellant’s loss of recall rather than mis-remembering events that had previously occurred. Accordingly, the judge did not err in law in his treatment of the appellant’s vulnerability and he was entitled to reach the conclusion that the appellant’s evidence on loss of contact with his family was not reliable.
.
24. Furthermore, the burden of proof being on the appellant, it was for him to explain this inconsistency given it arose from the Report that was submitted by him in support of his claim and it was not procedurally unfair for it not to be put to him at the hearing.

25. In relation to the appellant’s sister’s evidence on loss of contact, the judge clearly noted that, in paragraph 33, that she was unable to give “an exact or approximate time of when that had happened”. Implicitly, for that reason, the judge did not find this supporting evidence to be reliable and was entitled to place little weight on it.

Ground 2 (Article 3)

26. Mr Collins submitted that the judge conclusion in paragraph 47 that the appellant’s illnesses did not reach the required level of severity to engage Article 3 was contrary to the conclusions of the Report and the judge’s “alternative analysis” that the level of severity would not continue if returned to the DRC similarly ignored the Report’s conclusions and that his findings on the availability of Sertraline or other similar antidepressant in the DRC were unfounded.

27. The judge correctly set out the law on this issue at paragraph 40 referring to the distillation of case law in AM (Article 3, health cases) Zimbabwe [2022] UKUT 131:

“the Appellant must establish that they are a seriously ill person and adduce evidence capable of demonstrating that substantial grounds have been shown for believing that as a seriously ill person they 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 their state of health resulting in intense suffering, or to a significant reduction in life expectancy”.

28. In addition, the judge referred to the relevant case law on suicide risk in an Article 3 context: the Court of Appeal decisions in J v SSHD [2005] EWCA Civ 629 and Y (Sri Lanka) v SSHD [2009] EWCA Civ 362, and Upper Tribunal in MY (suicide risk after Paposhvili) [2022] UKUT 00232.

29. The issue which I need to determine is whether the judge erred in his conclusion that based on the evidence the appellant’s state of health was such that Article 3 was not engaged. In MY this Tribunal remarked that it was a “demanding threshold” being for an appellant to demonstrate a prima facie case i.e. a case which in absence of challenge would establish infringement (paragraph 124). J referenced at paragraph 16 of MY makes it clear that a suicide risk is capable of falling within Article 3.

30. The judge considers in paragraphs 42 to 46 the appellant’s medical records, his two suicide attempts, his PTSD and depression symptoms and notes the Expert identified that the appellant was at a moderate risk of suicide but that there were protective factors including his relationship with his sister and her family, his religion and concern for his wider family in DRC. He refers to paragraph 141 of the Report on the appellant’s psychiatric condition inevitably worsening if he was removed to the DRC and that there was a “real likelihood” he would not be psychiatrically well enough to readily find work and accommodation and be self-supporting in his current psychiatric condition. At paragraph 47 he concludes that the appellant’s illnesses did not engage Article 3.

31. There is no doubt that the judge carefully considered all the medical evidence before him and I find no basis the appellant to claim that he failed to take into account any material matter on the appellant’s medical health in reaching his conclusion on Article 3. On the face of paragraph 141, whilst the removal of the appellant to the DRC would result in some very unpleasant consequences, the fact that the Expert considered the appellant not to be able to work, find accommodation and be self-supporting does not trigger a “serious, rapid and irreversible decline” in the health of the appellant when considered by reference to the evidence as a whole, including support from his wider family in the DRC and the judge was entitled to reach the conclusion that the appellant had not discharged the burden of proof to the standard required by AM.

32. Mr Collins referred me to paragraph 101 as evidence that the appellant’s suicide risk will “almost certainly” increase if the appellant is removed from the UK and in such circumstances “he would need urgent and specialised reassessment of his mental state and review of his suicide risk” and paragraph 143 indicating the appellant, if removed to the DRC “may be” too psychiatrically unwell to access treatment as indications of the judge failing to fully consider the Report.

33. There is a danger of “cherry picking” those parts of the Report which support the appellant‘s case and disregarding those that do not. Looking at suicide risk, the Report noted, in addition to the protective factors, no formal diagnosis of depression had been made by the appellant’s GP and that whilst medication for depression had in the past been prescribed this had been intermittent and for short periods and none was currently prescribed. In addition, referral had been made to a talking therapy service by his GP and this had not been followed through. The judge, in paragraph 47, analysed the Article 3 issue in the context of the Report and medical evidence as a whole and was entitled to come to the conclusion that he did based on that analysis.

34. In relation to the judge’s views on availability of Sertraline or equivalent in the DRC there was no evidence available to him on which to form a positive view that it would be available. At best, given it was put in the negative – “I am also not satisfied that the appellant will not have access to at least Sertraline…” the judge was stating that the appellant had failed to discharge the burden of proof on this issue. In any event, the availability of Sertraline was not determinative in the judge’s analysis of his alternative scenario set out in paragraph 48 and amounted to just one of the circumstances that he considered. The judge noted that certain factors aggravating the appellant’s mental health currently present would cease to exist if he was returned to the DRC given the uncertainty over his immigration status would be removed and he would no longer be restricted from working. In addition, as the judge notes, he would access to other protective factors such as a reunion with his wife and his wider family. I also note that some of the current protective factors identified at paragraph 136 of the Report would also remain such as the appellant’s religious faith and relationship with his sister and children and that there was no current prescription for Sertraline. Accordingly, I find that the judge’s comments on Sertraline or its equivalent were not determinative to his analysis in paragraph 48 and that he was entitled to conclude that Article 3 was not engaged.

35. I note that at paragraph 144 the Expert concluded that if anti-depressants were not available in the DRC or due to his depression, the appellant did not take them this could lead to a serious rapid and irreversible decline in his mental health in event of forced removal resulting in intense suffering. Without further treatment it could result in a significant reduction in life expectancy. This is a legal conclusion adopting the words in AM rather than a medical one and the judge was entitled draw his own conclusions on whether this test was satisfied based on the entirety of the medical evidence available to him.

36. For the reasons I have given above I find that the judge’s analysis of the medical evidence and his conclusions on the Article 3 grounds contain no error of law.

Ground 3 (very significant obstacles)

37. Mr Collins submitted that the judge had erred in his analysis of whether there were very significant obstacles to the appellant’s integration into the DRC if he was required to leave within 276ADE (1) of the Immigration Rules and relied on the Report to demonstrate the difficulties the appellant would face.

38. This ground is, in effect, no more than a disagreement with the judge’s decision. The judge expressly acknowledges the appellant’s mental health difficulties but concludes, looking at all the evidence, his good physical health, his language skills, the time he has been away and his family connections in the DRC that the appellant would not face very significant obstacles on reintegration on return to his home country.

Ground 4 (Article 8)

39. The ground 4 is that the judge failed to take into account the delay to his claim in Article 8 analysis in a manner required by EB Kosovo. Again, I find that this ground amounts to no more than a disagreement with the judge on the evidence. The judge correctly sets out the burden of proof requirements in paragraph 56 and expressly refers to the delay in paragraph 57 and, indeed, the length of time that the appellant has been in the UK is the reason why he accepts that Article 8(1) is engaged to protect the appellant’s private life is engaged and treats him as having a family life with his sister and her children. The judge acknowledges the appellant poor mental health and considers the consequences of removal on the appellant, his sister and children and considers the respondent’s decision to refuse his claim as being reasonable and proportionate in all the circumstances.

Notice of Decision

There was no legal error in the decision of the First-tier tribunal and I decline to set the decision aside. The appellant’s appeal is therefore dismissed.

Mark Stamp

Judge of the Upper Tribunal
Immigration and Asylum Chamber

4 December 2025