Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-004944
First-tier Tribunal No: PA/1208/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 10th March 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE MERRIGAN

Between

SSR
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr B. Lams, Counsel
For the Respondent: Mr J. Nappey, Home Office Presenting Officer

Heard at Field House on 18 February 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant 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. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The appellant appeals against the decision of First-tier Tribunal Judge Abdar (“the judge”). By his decision of 13 August 2025, the judge dismissed the appellant’s appeal against the respondent’s refusal of her protection and human rights claim.
Background
2. The appellant is a Botswana national, born in 1982. As I shall set out in further detail below, the judge broadly accepted the appellant’s account of domestic violence, as well as her chronology for her entry into the UK. As such, I do not need to set out the background facts in detail. Suffice to say that the appellant married NSR in 2007: the marriage was violent; and in 2017 the appellant initiated divorce proceedings. The High Court in Botswana granted a decree nisi on 5 August 2019 and, via South Africa and Dubai, the appellant arrived in the UK on 8 August 2019, leaving behind her two children with a relative. The appellant has remained in the UK since that time. Decree absolute was obtained the following year.
3. The appellant was diagnosed with HIV in 2020. She has responded well to treatment provided in the UK. She has also been diagnosed with sleep apnoea.
The Decision of the First-tier Tribunal
4. The judge’s assessment and rejection of the appellant’s ECHR claim is not contested, and so I will not consider it further; nor is his conclusion that the appellant’s sleep apnoea, either by itself or in combination with HIV, pose a breach Article 3 of the ECHR should she return to Botswana. The judge’s findings primarily at issue are contained in [13], [21] and [27]: which I reproduce in their entirety.
“The Appellant became pregnant and it is the Appellant’s account that the Appellant was forced to marry the father of the child, NSR, on 3 May 2007. Their son, BR, was born on 13 July 2007, and their daughter, AR, was born on 2 June 2011. Regrettably, the marriage was not a happy marriage and I find the Appellant’s evidence of facing violence and abuse within the marriage to be reliable; gender-based violence is sadly prevalent in all societies and Botswana is no exception, §12 CPIN Botswana.” [13]

“I have no reliable evidence that NSR remains willing and able to harm the Appellant now, being five years since the divorce. I also find that the Appellant’s very late application for asylum on 13 February 2023 to materially undermine the Appellant’s continuing fear of NSR on return to Botswana. On a holistic view and on the lower standard of proof, I am not satisfied that there remains an extant threat to the Appellant from NSR, even if such a threat existed at the time the Appellant fled Botswana. Furthermore, I also find that the Appellant will have state protection and internal relocation available to the Appellant on return to Botswana in view of the Appellant now being divorced from NSR.” [21]

“I find that the Appellant’s HIV is in control and the Appellant’s sleep apnoea, in my view, is not such to engage Article 3 on medical grounds, albeit I find that it is causing the Appellant significant discomfort and interrupting the Appellant’s sleep. On a holistic view of all the evidence before me and on the lower standard of proof, I am not persuaded to find that the Appellant’s current diagnoses and prognosis reach the requisite severity to engage Article 3 ECHR.” [27]
5. It can be seen that the judge, having found that her account of domestic violence at the hands of NSR was true, went on to find that NSR did not, post-marriage, remain a threat to the appellant on return. Further, having found that the appellant had evidenced living with HIV, he found that her prognosis would not prevent her return to Botswana either. These two issues comprise the grounds of appeal I must consider.

Grounds of Appeal
6. The grounds of appeal are dated 27 August 2025. Permission to appeal was refused by First-tier Tribunal Judge Chohan on 29 September 2025; but granted on all grounds by Upper Tribunal Judge Perkins on 17 November 2025. Upper Tribunal Judge Perkins remarked that he did not find the grounds as pleaded particularly clear. Accordingly, Mr Lams has rearticulated them in his submissions; and I summarise as follows.
a. Ground 1: The reasons given for finding that NSR is not an extant threat to the appellant at [21] are inadequate, given the finding at [13] that the appellant has been truthful in her account of NSR’s violence towards her.
b. Ground 2: The judge was wrong, in the light of the evidence provided by the appellant, not to find that the services and treatment required for the appellant’s HIV were unavailable in Botswana.
Submissions
7. As to ground 1, Mr Lams begins by observing that the natural reading of the judge’s finding at [13] that the appellant’s account of having faced violence is “reliable” without qualification is that the entirety of it is true. That account, says Mr Lams, describes violence at what he terms the severe end of the spectrum. He draws my attention to statement given to the Botswana Police Service, dated 16 May 2017 (“the statement”): where she describes being punched in the eye and kicked several times earlier that day, with the result that she could not see or walk properly. The appellant attended the police station with ripped clothing, which she stated was the result of NSR attempting to rape her. Four days later she was seen by the Botswana Gender Based Violence Prevention and Support Centre, which recommended “psychological assessment of a victim of domestic violence”. The appellant said in her statement to the police that this was not the first time she had been hit; she also said that NSR had threatened to kill her. In her asylum interview dated 23 January 2024 (“the asylum interview”), the appellant reported, apparently describing the same incident that “He hit me until I soiled myself”. Mr Lams submits that the judge had good reason to accept the appellant’s account: a hospital examination undertaken on the same day that the appellant gave her statement records that “lacerations visible on the left side of the face, chest, stomach and legs. Patient appeared disoriented and anxious. Skirt soiled, top torn, hair shabby, consistent with violent rip off.”. The concluding remark in the hospital examination record is that “observations made are consistent with physical abuse resulting into grievous bodily harm [sic]”.
8. In her police statement, the appellant stated that “I have reported [NSR] to his parents but they could not help me as expected of them. I have also made reports to the local law enforcement authorities, no action was taken due to his influence in the locality”. In her asylum interview, the appellant stated that she had reported NSR to the authorities in 2015 and 2016. She maintained that NSR was able to bribe the Botswana Police as “he has people that he knows, business partners, he deals with a trucking business so he goes all over the country”. She said that after receiving the divorce papers, NSR came to her rented property “beating the door telling me to open up”. She said that NSR threatened to kill her. She went on to state that NSR had threatened her by telephone since her arrival in the UK.
9. In the light of all this, says Mr Lams, there is no adequate reasoning in [21] of the decision, or at all, to explain why the appellant is not still at risk. As to sufficiency of protection, the authorities have simply treated the situation as being a family matter and have declined to intervene. NSR’s own family cannot control him.
10. For the respondent, Mr Nappey relies on the Rule 24 response. He particularly draws attention to the judge noting at [21] that it is five years since the divorce. Mr Nappey submits that now that the appellant is divorced, the authorities would no longer be able to dismiss the situation as a family matter into which the state need not intrude. In any event, the appellant’s own evidence, recorded at [19], was that the last time NSR was in contact with the appellant was 2022. The effluxion of time and the divorce combine to extinguish the risk that the facts found in [13] may otherwise still establish. These are adequate reasons for the judge to find, despite the violence identified at [13], that the appellant no longer poses a threat to the appellant; and in any event, she will have state protection on her return.
11. Turning to ground 2, Mr Lams focusses upon [27] and [28] of the decision. Having already reproduced [27] herein, I now reproduce [28]:
“The Appellant has adduced evidence on funding cuts by the US, which is having a detrimental effect on the HIV services being provided in Botswana, amongst other poorer countries. However, I am not satisfied that the Appellant requires such services at present and that lesser services than what is deserved will not be available to the Appellant in Botswana.”
12. No issue is taken with respect to the legal test: the judge correctly states that the lower standard of proof applies; and rightly identified AM (Zimbabwe) [2020] UKSC 17 at [26]. It is in the examination of the evidence before the judge in respect of the appellant’s HIV diagnosis that an error of law is said to inhere.
13. Firstly, the judge had sight of a letter from Dr Jackson, dated 4 April 2025, which confirms that the appellant was first diagnosed with HIV in February. The appellant’s response to NHS treatment has been successful:
“Her initial CD4 count was low at 170 and she was started on antiretroviral therapy and prophylactic Septrin. Her CD4 count responded well, and she became undetectable and has been stable on treatment since.

For [the appellant] to remain well, she needs to have access to HIV care and continue to take her antiretroviral became undetectable and has been stable on treatment since tablets, as this will keep her HIV viral load undetectable.”
14. Secondly, the appellant supplied evidence of the impact of the USA’s funding freeze on HIV programmes in Botswana. A country update dated 10 March 2025 (“the country update”) describes “significant disruption in HIV services” following Civil Society Organizations (“CSOs”) receiving termination letters 11 days earlier. A post from the Sunday Standard/The Telegraph dated 21 March 2025 reads: …the UN states that the abrupt termination of financial support has already led to widespread disruptions, particularly affecting Civil Society Organizations (CSOs) that play a pivotal role in HIV prevention and treatment”. A post from the New York Times, undated but reposted on 28 January 2025, states that “The Trump administration has instructed organizations in other countries to stop disbursing HIV medications purchased with U.S. aid, even if the drugs have already been obtained and are sitting in local clinics”.
15. Mr Lams argues that both the appellant’s medical evidence and the media reporting demonstrate either irrationality in the findings at [27] and [28], or simply a failure adequately to take into account the evidence before him. It is not in dispute that the appellant has HIV; nor that as a result of treatment in this country her viral load has been reduced to an undetectable level. The appellant has provided sufficient evidence to show that the work of CSOs has been curtailed and HIV medication withheld. While it is accepted that, as Mr Lams put it, the medical evidence before the judge was not particularly full, the appellant has done enough to place the burden on the respondent to show how the appellant would continue essential treatment where it is apparently unavailable.
16. Mr Nappey answers that the evidence supplied by the appellant goes nowhere near as far as Mr Lams suggests. Taken at its height, it shows “disruption”. It does not show that the combination of medication the appellant receives in this jurisdiction would be unavailable in Botswana; nor does it show that the appellant could not obtain equivalent medication in Botswana. The test set out in AM (Zimbabwe) is much more stringent than Mr Lams would have. Removal must result in a serious, rapid and irreversible decline in the person’s state of health resulting in intense suffering or a significant reduction in life expectancy. The evidence, says Mr Nappey, does not satisfy that test. As such, no Article 3 breach is demonstrated.
Analysis
17. As to ground 1, I do not consider that there is an irreconcilable tension between [13] and [21] as Mr Lams suggests. I agree with him that the natural reading of [13] is that the judge accepted the appellant’s description of abuse suffered at the hands of NSR to be true in its entirety. But it is not right to say that [21] discloses no reason to say that the risk to the appellant is the same now as in 2017, or when she left Botswana. It is common ground that the appellant and NSR are now divorced. The appellant’s asylum interview responses are clear that her marital status was material to the police response:
“Q56: Do you remember how many times you reported him?
A56: Several times in 2015 – 2016, the last report was 2017.

Q57: What happened to the reports, did the police ever investigate?
A57: Even today no.

Q58: Dis [sic] you chase them up?
A58: I did yes to the point I gave up, because it was no use. Sometimes they would say it’s a family matter how your husband can rape you – you are his property. I was just a tool for him to use.”
18. Her statement presented the same issue:
“I have reported his actions to the family elders but they have only reprimanded, instead stating that our culture does not accept rape claims from married couples and it is accepted of him to have sex with me at any time.”
19. As I have already noted, decree absolute was obtained in 2020. The state cannot now decline protection just on the basis of the appellant being married to NSR.
20. Further, a significant amount of time has passed since, on the appellant’s own evidence, she last heard from NSR in 2022. The judge was entitled to find at [21] in the light of that evidence that “I have no reliable evidence that NSR remains willing and able to harm the Appellant now, being five years since the divorce”. The judge continuing: “I also find that the Appellant’s very late application for asylum on 13 February 2023 to materially undermine the Appellant’s continuing fear of NSR on return to Botswana” does not undermine that finding. It does not amount to an adverse credibility finding restricting the scope of the finding at [13] that the appellant was truthful about the abuse she suffered. It goes to a different point – whether the appellant has a continuing fear of NSR – and after the passage of time, the judge has concluded that she does not. In any event, the judge is clear in [21] that he has taken a “holistic” view of the risk that NSR poses; and has concluded that NSR does not pose an extant threat. I do not find that ground 1 is made out. There is no error of law.
21. Nor does ground 2 disclose any error of law. The judge found at [24] that the appellant had responded very well to HIV treatment. It is clear that the judge accepted that part of the appellant’s evidence. What the judge did not accept was that appropriate treatment was unavailable. The fullest of the stories, the country update, states that “The closure of drop-in centers for key populations has disrupted HIV testing, treatment, care, and support services”. It does not say they have stopped. It is also clear from the reference to “EU budget cuts” therein that the USA is not the only source of support and distribution. The country update states that while the EU “will not bridge the gap left by US government funding cuts”, the EU has “pledged to fulfil their HIV commitments up to 2027”. The New York Times post amounts to only a single sentence, already quoted above. The post then gives a ‘read more’ link, but the continuation of the post was not supplied by the appellant. The Sunday Standard/Telegraph post talks of “disarray” and “widespread disruptions”; but again, the post speaks only to US contributions, and again, the continuation of the post has not been supplied.
22. In my view, the evidence supplied by the appellant is scant. A disrupted service is not an unavailable service. Even applying the lower standard of proof, the appellant has not demonstrated that the medications that have successfully reduced her viral load, or equivalent medications, would be unavailable to the appellant. While it is true that the phrasing of [28] is a little opaque, the finding is clear: the appellant has not shown that the services she needs are the same as those that have been cut. In any event, the judge clarifies at [30]:
“In the alternative of there being a prima facie case of potential breach of Article 3 ECHR on return to Botswana, I am not satisfied that the background evidence demonstrates that there is an absence of services and treatment which leads to substantial grounds for believing that, as a seriously ill person, the Appellant 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 to a significant reduction in life expectancy.”
23. The judge was more that entitled on the evidence before him to reach this conclusion. There is no error of law.
Notice of Decision
24. The decision of the First-tier Tribunal did not involve the making of an error of law and stands.

D. Merrigan

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

9 March 2026