Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005401
First-tier Tribunal No:
HU/62342/2023
LH/06532/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 21 August 2026

Before

UPPER TRIBUNAL JUDGE MAHMOOD

Between

RA
(Anonymity ORDER continued)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms Emma Turnbull of counsel instructed by Bristol Law Centre
For the Respondent: Ms Sian Rushworth, a Senior Home Office Presenting Officer

Heard at Cardiff Civil Justice Centre on 19 May 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. The parties are entitled to apply on notice to vary this direction.

DECISION AND REASONS
Introduction
1. The Appellant, a national of Iran, appeals against the decision of First-tier Tribunal Judge Lester (“the Judge”) dated 4 July 2025 dismissing his international protection and human rights claim.
2. The hearing before me is to consider whether or not there is a material error of law in the Judge’s decision. If I find that there is a material error of law in the decision, then it will have to remade. If I find that there is no material error of law in the Judge’ decision then the Judge’s decision which had dismissed the Appellant’s appeal will stand.
The Grant of Permission to Appeal
3. Permission to appeal was refused by the First-tier Tribunal on 10 November 2025. The Grounds challenge the Judge’s findings in respect of Articles 3 and 8 ECHR.
4. Permission to appeal was granted on renewed grounds by Upper Tribunal Judge Ruddick by way of a decision dated 22 December 2025. The Learned Judge observed as follows when granting permission to appeal:
“It is arguable that the FTT erred in its approach to the medical evidence in at least two ways, as set out at Ground One. First, there was an “Agreed Facts” document, as referred to at [17] at [121] of the FTT’s decision. These included: “4. A suffers from Depressive Disorder, Post-Traumatic Stress Disorder and Drug Dependence [3.4.22, 29 AB]. A has been assessed by Lisa Davies on 20th June 2024 as being at high risk of suicide [1.6, 16 AB] […] “11. It is accepted that the experts in this case: Dr Lisa Davies, Chartered and Registered Forensic Psychologist; Dr Anna Preston, Chartered and Registered Clinical Psychologist and Roya Kashefi have the necessary expertise to provide reports in this case.”
3. It was arguably procedurally unfair for the FTT to go behind these agreed facts and reject Dr Davies’ assessment that the appellant was at high risk of suicide based on its own reading of the appellant’s GP records. I note that counsel who drafted the grounds of appeal appeared at the hearing below and has confirmed that the none of the FTT’s concerns about the accuracy of Dr Davies’ diagnosis or assessment were raised at the hearing.
4. It was also arguably irrational for the FTT to find at [143] that there was “no formal diagnosis” of depressive disorder, PTSD and drug dependence, both because these facts were listed as agreed and because Dr Davies’ report contained such a diagnosis. It may be relevant here that although the FTT gave reasons for doubting Dr Davies’ assessment that the appellant was at high risk of suicide, based on the limited instances of self-harm recorded in the medical records, it does not appear that it gave any reasons for rejecting other aspects of Dr Davies’ diagnosis.
5. Ground Two is also just arguable. As set out in the grounds, the FTT may have erred at [95]-[98] by finding that the appellant’s family would not reject him because of his current drug use because the appellant’s GP records showed that they had been funding his drug use prior to 2017. It is arguable that the FTT failed to take into account the expert country evidence about the likely attitude of the appellant’s family, and because it decided to place considerable adverse weight on these GP records from 2017, in spite of accepting at [98] that they had not been put to the appellant for comment. As also noted in the grounds, the evidence relied on was incomplete (the source of the funds in Iran was recorded as “UNSPECIFIED”) and the source of the evidence was not the appellant but an ex-partner, described as an “ex-user” – although these latter complaints may be more in the way of re-argument.
6. It is less arguable that the FTT erred by failing to take into account the appellant’s medical issues and vulnerabilities in its assessment of very compelling circumstances under section 117C. In this final section of the determination, the FTT was entitled to incorporate by reference any findings about those issues that it had made above. However, if the FTT did err in its approach to the medical evidence and to the evidence about the family support the appellant would receive on return to Iran, this will have inevitably affected the sustainability of its assessment of very compelling circumstances.”
The Correct Approach to Appeals from the First-tier Tribunal
5. I remind myself that the expertise of the First-tier Tribunal has been impressed upon the Upper Tribunal for very many years, including more recently in the decision of the Court of Appeal in MH (Bangladesh) v Secretary of State for the Home Department [2025] EWCA Civ 688. In particular the judgment of Arnold LJ, with whom Singh and King LJJ agreed. Paragraph 29 makes clear:
“There have been many recent authorities in both the Supreme Court and this Court on the need for appellate courts and tribunals to be cautious before interfering with findings of fact and evaluative assessments by lower courts and tribunals, and in particular specialist tribunals such as the FTT. For present purposes it is sufficient to cite Lord Hamblen’s summary in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22, [2022] 1 WLR 3784 at [72]:
‘It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. In particular:
(i) They alone are the judges of the facts. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. It is probable that in understanding and applying the law in their specialised field the tribunal will have got it right. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] AC 678 per Baroness Hale of Richmond at para 30.
(ii) Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49; [2011] 2 All ER 65 at para 45 per Sir John Dyson.
(iii) When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19; [2013] 2 AC 48 at para 25 per Lord Hope of Craighead.”
6. The legal test to be met by the Appellant to show a material error of law is to be found in the Court of Appeal’s decision in R(Iran) and others v Secretary of State for the Home Department [2005] EWCA Civ 982; [2005] Imm. A.R. 535.
The Judge’s Decision
7. The Judge said at paragraph 75 of his decision:
“In addition to the Agreed Facts I have also been through the reports to see if there is any suggestion that his memory issues may well have been better in the past which would enable me to perhaps give more weight to evidence he has previously provided. However, from what I have read (and nothing has been brought to my attention to show otherwise) it appears that his issues are such that even looking back towards his earlier statements/evidence I am unable to give them any greater weight.”
The Hearing Before Me
8. The Appellant provided a bundle comprising 703 pages. There was a Rule 24 Response from the Appellant and a Rule 25 reply from the Appellant. I was provided with a helpful skeleton argument drafted by Ms Robinson on behalf of the Appellant dated 11 May 2026. There was also a Rule 15(2A) application by the Appellant.
9. Ms Rushworth said in her submissions that she relied on the Rule 24 response. She amplified that to state that the Judge had engaged fully with the Appellant’s medical records and with the expert evidence when making his assessment of the evidence. The Judge had said at paragraph 58 that he had had regard to the medical evidence. It was submitted that there was no procedural unfairness. It was submitted that the expert evidence was written on the basis that the Appellant was credible. The Judge had also said that the evidence had been considered in the round. It was submitted that the Judge was entitled to “assess the medical report through the prism of the medical records” and the Judge had made a finding that the medical records did not support the findings of the expert. There were cogent reasons for doubting Dr Davies’ assessment. The judge made findings that the Article 3 ECHR threshold could not be met. It was submitted that the Judge had taken into account the agreed facts. It was submitted that it could be seen that at paragraph 98 the Judge had made a finding that even if the inconsistences were put to the Appellant, he would not be able to provide an explanation owing to his inability to remember and to recall events.
10. In respect of Ground 1, Ms Rushworth also said hat the Appellant did not have any physical health problems and he was not receiving treatment. Ms Rushworth said that paragraph 123 of the Judge’s decision was “fairly clumsy” but at paragraph 121 the Judge said he had had regards to the agreed facts and he had quoted them at paragraph 57 of his decision. Ms Rushworth said that even if the Judge had erred, because the Appellant was not receiving any treatment, his appeal was bound to fail.
11. In respect of Ground 2, Ms Rushworth said that this was quite a unique case and that the evidence was available to the Judge. The discrepancy was visible and the Judge was entitled to note it. Two of the documents were saying conflicting things.
12. In respect of Ground 3, Ms Rushworth said that there was mere disagreement with the Judge’s decision.
13. The central issue in this case is that the parties provided the Judge with an agreed statement of facts. Namely that these matters were not in issue. The agreed facts included the following:
“A suffers from Depressive Disorder, Post-Traumatic Stress Disorder and Drug Dependence. A has been assessed by Lisa Davies on 20th June 2024 as being at high risk of suicide.
A accepts that he has a problem with drugs. A says he frequently feels suicidal.
A’s general cognitive ability is within the Extremely Low range of intellectual functioning. A cannot read or write.
A is homeless. He currently lives in a caravan. He is supported by St Mungo’s, his St Mungo’s Outreach Worker who considers him to be “an exceptionally vulnerable individual”.
In A’s personal life in the UK he has suffered a number of losses: his previous partners Josie and Sara Boukhemkhen committed suicide. His partner Dee Dee lost a baby when she was 8 months pregnant.
A has a number of criminal convictions. The index offence was a sentence of imprisonment of 12 months’ for possession of class A drugs with intent to supply (suspended sentence activated).
It accepted that the experts in this case: Dr Lisa Davies, Chartered and Registered Forensic Psychologist; Dr Anna Preston, Chartered and Registered Clinical Psychologist and Roya Kashefi have the necessary expertise to provide reports in this case.”
Consideration and Analysis
14. In this matter the parties had jointly agreed various facts and had set them out in writing. I have set out those agreed facts above. Whilst it remained possible for the Judge to query or to even reject those agreed facts, it was incumbent upon him to raise that with the parties first. Whilst I can see that the Judge went through the Appellant’s medical records after the hearing, he was still in a position to have sought further submissions from the parties to indicate that having read the medical records, he was minded to go behind the agreed facts. He could have invited written submissions or even listed the matter for a further hearing. By not doing so, it led to an unfair result because the Appellant was not aware that the Judge would go behind the agreed facts.
15. I am satisfied from the Appellant’s counsel’s witness statement that the Judge had not raised the matter of going behind the agreed facts at the hearing. Ms Rushworth had not sought to suggest otherwise either.
16. In my judgment, the Judge was clearly aware of the agreed facts because he set them out in his decision. Therefore, this is not a case in which the Judge was unaware of the agreed facts. Whilst Ms Rushworth said that the Judge expressed himself in a ‘fairly clumsy’ way, in my judgment, going behind agreed facts and not giving the parties an opportunity to provide their views shows procedural unfairness and goes behind clumsy wording.
17. In any event, in my judgment, I conclude that had it been necessary to say so in a procedural challenge, it is more than likely that had the unfairness not occurred, the result might have been different. Therefore, the error of law is material and affects the outcome.
18. As was identified when permission was granted, the other grounds are not so strong, but Ground 1 has the effect of infecting the whole of the decision.
19. At the rehearing the Appellant will have to satisfy the Judge that his Article 3 claim is made out. The Court of Appeal’s recent decision will be of assistance. The threshold for the Appellant to meet in respect of Article 3 will need to be considered. In Secretary of State for the Home Department v OSB [2026] EWCA Civ 647 Bean LJ provided the only reasoned judgment and with which Singh and Baker LJJ said in respect of Article 3 medical cases as follows:
“36.      That remained the applicable test until Paposhvili v Belgium [2016] ECHR 1113. At [183] the Grand Chamber of the ECtHR said:-
“The Court considers that the ‘other very exceptional cases’ within the meaning of the judgment in N v The United Kingdom (para 43) which may raise an issue under article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, 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 his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The Court points out that these situations correspond to a high threshold for the application of article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness.”
37.      In AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 [2021] AC 633 (“AM (Zimbabwe)”), the Supreme Court considered what modification needed to be made to the Article 3 test in order to comply with Paposhvili. The court held that, in order for an applicant to succeed on Article 3 ill-health grounds, they must provide evidence demonstrating that:
i) They are seriously ill,
ii) They have provided substantial grounds for believing that there is a real risk that, if returned to the receiving country,
a) Appropriate treatment would either be absent (i.e., unavailable to anyone) or inaccessible to them in particular; and
b) This absence or lack of access to appropriate treatment would expose them, either,
i) To a serious, rapid, and irreversible decline in their state of health resulting in intense suffering, or
ii) To a significant (i.e., substantial) reduction in life expectancy.
38.      AM’s case then returned to the Upper Tribunal, whose decision is reported as AM (Article 3, health cases) Zimbabwe [2022] UKUT 131 (IAC). The UT reviewed AM (Zimbabwe), Paposhvili, and the Grand Chamber case of Savran and Denmark [2021] ECHR 1025. The UT gave the following guidance at [3]:
“… It is insufficient for P to merely establish that his or her condition will worsen upon removal or that there would be serious and detrimental effects. What is required is “intense suffering”. The nature and extent of the evidence that is necessary will depend on the particular facts of the case …”
20. I add that whilst I can see that the Judge had put considerable effort into reviewing the quite voluminous documents provided by the Appellant, I conclude that unfortunately there was a missing step because the Judge ought to have invited further submissions stating that he was minded to go behind the agreed facts.
21. I therefore conclude that the decision has to be set aside in its entirety.
22. In terms of disposal of the hearing, I apply AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC). I consider whether to retain the matter for remaking here at the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statement. I take into account the history of this case, the nature and extent of findings to be made as well as the nature of the errors in this case. I further consider it would be unfair for either party to be unable to avail themselves of the two-tier decision-making process. I conclude that the appropriate decision in this case is that we remit the matter to the First-tier Tribunal.

NOTICE OF DECISION
There decision of the First-tier Tribunal contains a material error of law and is set aside in its entirety. None of the findings shall stand.
The matter is remitted to the First-tier Tribunal for rehearing in respect of Articles 3 and 8 ECHR.
The Appellant’s solicitors shall within 14 days of this decision being sealed (i) identify to the First-tier Tribunal the vulnerability matters that they seek to rely on and (ii) what arrangements they seek in respect of the same for the rehearing.

5 August 2026
Abid Mahmood
Judge of the Upper Tribunal
Immigration and Asylum Chamber