Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-004833
First-Tier Tribunal No: PA/00052/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 11th of March 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE RODGER

Between

MK
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Lanigan, Counsel instructed through Advocate
For the Respondent: Ms Keerthy, Senior Presenting Officer

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant was granted anonymity. I am satisfied that it is appropriate to continue to anonymise these proceedings.

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 them. Failure to comply with this order could amount to a contempt of court.

Heard at Field House on 9 March 2026

DECISION AND REASONS
1. The appellant appeals with permission against the decision of the First-tier Tribunal dated 15 July 2025.
Background
2. The appellant is a Guinean national. He claimed asylum on 07 August 2020 on the basis that he will be a real risk of persecution and/or serious harm on return from his father’s family. He also claimed that his return to Guinea would breach his Article 3 and 8 rights of the ECHR.
The Respondent’s decision
3. In a decision dated 04 December 2023, the respondent refused his protection claim. The material facts of his claim were not accepted and it was found that there was no real risk of persecution as he had left Guinea some 10 years previously and had had no contact with his father’s family and did not know if they were still alive or where they lived. The respondent contended that he can internally relocate to any part of Guinea.
4. His claim was also considered under Article 8 private life but was rejected for the reasons set out in the refusal decision.
The appeal before the First-tier Tribunal
5. The appellant appealed and the appeal came before the Judge for full hearing on 07 July 2025. The appellant was unrepresented and the respondent was represented by Mr Twum-Boateng, a Home Office Presenting Officer. At paragraph 6 of the decision, the Judge sets out that she treated the appellant as a vulnerable witness in light of the medical evidence. The appellant adopted his witness statement and was cross examined.
6. At paragraph 8 of the decision, the Judge states that the parties agree that the issue that remained in dispute was whether the appellant will be at risk on return from his father’s family.
7. At paragraph 14 the Judge found that the appellant did not come within the Refugee Convention and at paragraphs 20-22 the Judge made findings relating to his protection claim and did not accept his claim. At paragraph 23 the Judge found that if he remained concerned then he could internally relocate.
8. With regards to Article 3 (health), at paragraph 25 the Judge found that the appellant’s health concerns do not reach the Article 3 threshold and that his claim to not have the funds to seek treatment on return is not a sufficient reason to reach the threshold. The Judge found that he could continue to receive treatment on return for his physical and mental health.
The appeal to the Upper Tribunal
9. The appellant sought permission to appeal on three grounds, (1) failure to assess whether he was a seriously ill person and failure to properly consider the medical evidence relating to his Article 3 ECHR medical grounds, (2) incorrect application of the internal relocation test and (3) failure to give sufficient reasons for rejecting his protection claim. The grounds were drafted by a solicitor at the Reading Refugee Support Group.
10. On 03 October 2025 the First-tier granted permission to appeal to the Upper Tribunal on Ground 1 as the FTJ found that it was arguable that the Judge had not sufficiently reasoned why the appellant is not a seriously ill person and the subsequent impact of this on the remaining limbs of AM (Zimbabwe) v SSHD [2022] UKUT 00131. Permission to appeal on Grounds 2 and 3 was refused.
11. The appellant applied to the UT for permission to appeal on Grounds 2 and 3 and permission was refused. This PTA was given a different reference number, UI-2025-004992, and was linked to the current appeal before me.
12. Given the UT refusal of permission and the limited permission to appeal granted on 03 October 2025, the only ground for my consideration is Ground 1 relating to Article 3 (health).
The UT appeal hearing
13. At the hearing on 09 March 2026, the appellant was represented by Ms Lanigan of Counsel and the respondent was represented by Ms Keerthy, a senior Presenting Officer.
14. I initially raised that there was no Rule 24 response within the bundle. Ms Keerthy confirmed that a Rule 24 response dealing with Ground 1 had been filed in the linked appeal and she emailed the Rule 24 response to myself and to Ms Lanigan at the outset of the hearing.
15. I also raised with the parties that there was a potential jurisdiction issue. The representatives were provided with time to consider the jurisdiction issue and to obtain any further material. Ms Keerthy emailed a copy of the Presenting Officer’s note for the First Tier hearing that took place on 07 July 2025 and the representatives were able to proceed with their submissions on jurisdiction and on Ground 1 of the appeal on reconvening at 10.45am.
16. I heard submissions on the preliminary and substantive issue from both representatives. I have not set these out in full but have referred to them below in making my decision.
17. At the end of the hearing I reserved my decision which I now give.
Discussion
Jurisdiction
18. The potential issue of jurisdiction arose from the fact that the refusal decision under appeal did not address an Article 3 (health) claim and that no Article 3(health) grounds were raised in the grounds of appeal when the First Tier notice of appeal was filed. Further, at paragraph 8 of the Judge’s decision, the Judge recorded that the parties agreed that the issue that remained in dispute was whether the appellant will be at risk on return from his father’s family but at paragraph 25 the Judge dealt with an Article 3(health) ground of appeal.
19. Having considered the submissions of both representatives and after consideration of the case of Mahmud (s.85 NIAA 2002 – ‘new matters’) [2017] UKUT 00488 (IAC), I am satisfied that the Judge had jurisdiction to deal with the Article 3(health) claim and that it was not a ‘new matter’ requiring the consent of the respondent pursuant to s.85 of the Nationality, Immigration and Asylum Act 2002.
20. I firstly note that the Rule 24 response to Ground 1 of this appeal did not raise a lack of jurisdiction issue.
21. I also note that there had been a First Tier Case Management Hearing in January 2025, attended by the appellant in person appearing by CVP, and that the respondent was represented by a Home Office Presenting Officer. The Case Management Order of IJ Parkes specifically sets out that Article 3(health) was one of the issues in dispute. The list of agreed issues was based on the appellant’s representative’s email setting out the issues for the appeal in advance of the CMR hearing. The respondent was represented at the CMR and there is no persuasive evidence that the HOPO raised any issue about jurisdiction or Article 3(health) being a new matter at the CMR hearing.
22. Further, whilst the refusal decision under appeal had not considered an Article 3(health) claim, I am satisfied that the appellant had raised such matters before the refusal decision and that it ought to have been part of the decision made. The Preliminary Information Questionnaire dated 17 February 2021 did not provide any detail of his claim and it was said that full details would be provided at the substantive interview [p74].At his asylum interview on 23 October 2023, the appellant provided a copy of a medical report and referred during his interview to the physical and mental health issues that he had. From reading through the appellant’s bundle of documents that was before the Judge, and in particular pages 53 – 83, it is clear that the Home Office required further information from the appellant before a decision was made on his claim. From the emails I am satisfied that the Home Office decided that the best way to proceed, rather than doing a second interview due to the rare language Mandinka and interpreters not always being available for interviews, was for the appellant to answer a list of questions emailed by Richard Gaskell of the Home Office on 21 November 2023.
23. There is a further course of correspondence between Richard Gaskell and the appellant’s representative as a second interview had mistakenly been booked for the appellant on 04 December 2023, despite it previously having been agreed between them that the appellant would not attend an interview but would provide a statement setting out his claim/answering the additional questions by 06 December 2023 [p62]. It is of note that the refusal decision was made on 04 December 2023 and before the appellant had submitted a witness statement as per the agreement with the Home Office. The witness statement was emailed to the Home Office on 06 December 2023 [p68-70]. Paragraph 27 of the statement specifically raises an Article 3(health) claim. In his representative’s email dated 06 December 2023 attaching the witness statement, a request was made for the refusal decision to be reviewed and withdrawn given that it had been agreed that a decision would not be made until a witness statement had been sent by 06 December 2023.
24. There was no review in this case after service of the appellant’s statement or after the First Tier appeal had been submitted and as set out above, it was not raised at the CMR hearing or in any review that the issue of Article 3(health) was a new matter. The appellant’s bundle contained medical evidence relating to his physical and mental health conditions and treatment and objective material relating to the availability/adequacy of treatment in Guinea. Further, the HOPO’s hearing note for 07 July 2025 does not support that any submissions on jurisdiction were made to the Judge and page 3 of the HOPO’s notes refers to queries about his medication and lack of suicidal thoughts from page 33 of the bundle, although it is not clear whether this is part of the HOPO’s preparation for the hearing or a submission made to the Judge.
25. Whilst the Judge states at paragraph 8 of the decision under appeal that the agreed disputed issue was that of risk on return, overall I am satisfied that the issue of Article 3(health) was one that was before the Judge and that the Judge had jurisdiction to deal with the same. I accept that the Article 3(health) claim was not a ‘new matter’ because the appellant had raised it during his substantive interview and in his first witness statement emailed on 06 December 2023. I am also satisfied that the absence of any submissions that the Article 3(health) claim was a ‘new matter’ at the time of CMR, at the substantive hearing and/or at the time of the Rule 24 statement, is all consistent with the Article 3(health) claim not being a new matter and not outside of the Judge’s jurisdiction to deal with.
Ground 1
26. In deciding whether the Judge’s decision involved the making of a material error of law, it is helpful to remind myself of the principles set out within the case law and in particular at paragraph 26 of Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201. I remind myself that the FTT is a specialist fact-finding tribunal and that where a relevant point was not expressly mentioned by the FTT, the UT should be slow to infer that it had not been taken into account. Further, when it comes to the reasons given by the FTT, the UT should exercise judicial restraint and not assume that the FTT misdirected itself just because not every step in its reasoning was fully set out, as confirmed by the Court of Appeal in Yalcin v SSHD [2024] EWCA Civ 74, at [50] and [51].
27. Further, I remind myself that an appeal court should assume, unless it detects an express or implicit misdirection of law, that the specialist tribunal knows and has applied the relevant law as set out in Gadinala v SSHD [2024] EWCA Civ 1410, at [46] and [47].
28. I also remind myself of paragraphs 5 and 6 of the SPT Practice Direction on Reasons for decisions dated 04 June 2024 which is consistent with the caselaw on sufficiency of reasons for decisions and states as follows:
5. Where reasons are given, they must always be adequate, clear, appropriately concise, and focused upon the principal controversial issues on which the outcome of the case has turned. To be adequate, the reasons for a judicial decision must explain to the parties why they have won and lost. The reasons must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the main issues in dispute. They must always enable an appellate body to 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. These fundamental principles apply to the tribunals as well as to the courts.
6. Providing adequate reasons does not usually require the First-tier Tribunal to identify all of the evidence relied upon in reaching its findings of fact, to elaborate at length its conclusions on any issue of law, or to express every step of its reasoning. The reasons provided for any decision should be proportionate, not only to the resources of the Tribunal, but to the significance and complexity of the issues that have to be decided. Reasons need refer only to the main issues and evidence in dispute, and explain how those issues essential to the Tribunal’s conclusion have been resolved.
29. I am satisfied that the appellant’s ground of appeal has been made out.
30. The only paragraph within the decision dealing with Article 3 (health) is paragraph 25 which reads as follows;
‘in relation to Art 3 I find the appellant’s health concerns do not reach the art 3 threshold. The appellant claims he does not have the funds to seek treatment on return, this reason is not sufficient to meet the threshold. I find he can continue to receive treatment on return for his physical and mental health.’
31. I find that the reasons for the decision are inadequate and that there is an error of law in respect of the decision on Article 3(health). I am satisfied that the reader of the decision is not able to understand how the matter was decided as it was and what conclusions were reached with regards to the limbs of the test that are to be applied in an Article 3(health) case as set out within the Upper Tribunal decision of AM (Zimbabwe) v SSHD [2022] UKUT 00131. I accept that a Judge is not required to specifically state the caselaw that has been applied and that it is not an error of law to not set out the test to be applied as it should be assumed that a specialist tribunal knows and applied the relevant law. However, I find that the absence of any reference to an assessment of whether the appellant has discharged the burden of establishing that he is a “seriously ill person”, which is the first limb under AM, leaves the reader uncertain of whether that is the test that has been applied and uncertain of what has been taken into account in rejecting or accepting that he is a seriously ill person. Indeed it is not known whether the Judge has accepted that he is a seriously ill person or whether this was rejected and if rejected, there are no reasons for the Judge’s assessment of this initial limb of the AM test. For example there is no reference to any of the medical evidence set out within the appellant’s bundle of documents before the Judge or any reasons provided as to why the suicide risk and Hepatitis B condition did not reach the threshold of being a seriously ill person.
32. I accept that a proper assessment of the initial limb in AM Zimbabwe is relevant to and bleeds into a Judge’s assessment of the remaining limbs of the test to be applied, as findings relating to the nature and extent of any illnesses necessarily impacts on the assessment of availability and affordability of treatment on return. I accept that it is not possible for a party to fully understand how the Judge has approached the Article 3(health) issue and consequently the issues of affordability and accessibility. This is because the reasoning is too short and inadequate such that it is not possible to ascertain whether the Judge has accepted that he is a seriously ill person or what findings were made on the extent or type of any necessary treatment, which would have an impact on issues of accessibility and affordability of the same. Further, the issues raised by the appellant in his statement raise issues not just with affordability and accessing medication and there is insufficient detail in paragraph 25 for the reader of the decision to know if these additional issues were considered by the Judge but were rejected and the reasons why they were found to not be sufficient factors to satisfy the Article 3 test.
Conclusion
33. The judge materially erred by providing inadequate reasons for her findings on the Article 3(health) appeal, it not being known whether the Judge made any findings relating to whether the appellant was a ‘seriously ill person.’ This undermines the judge’s findings on accessibility and affordability of any necessary treatment and whether the appellant’s health conditions meet the Article 3 threshold. This aspect of the decision will need to be considered afresh. The error does not, however, undermine the judge’s consideration of asylum/protection and/or Article 8. Accordingly, these aspects of the decision stand, as do the findings on credibility that led to the conclusion on the protection claim.
34. The findings in paragraphs 14 – 24 (concerning the protection claim) and in paragraph 26 (where the unchallenged findings on lack of very significant obstacles are made) are preserved. No other findings are preserved.
Disposal
35. The general principle is that cases will be retained in the Upper Tribunal for remaking. However, there are exceptions to this, as set out in paragraphs 7.2(a) and (b) of the Practice Statement. Whilst many of the findings are preserved, there will still need to be judicial fact finding relating to his mental and physical health conditions and whether they meet the Article 3 threshold. I accept that he is a vulnerable appellant and recognise that by retaining the matter in the Upper Tribunal the parties will lose the benefit of the two-tiered decision-making process, the significance of which was highlighted in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC)). Overall I have decided that remitting the matter to the First Tier is the appropriate course of action.

Notice of Decision
The decision of the First-tier Tribunal did involve the making of an error of law relating to the Article 3(health) appeal and I set aside the decision on Article 3(health).
The matter is to be remitted to the First Tier on grounds of Article 3(health) only.

Judge Rodger

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated 10 March 2026