Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-005533

First-tier Tribunal No: HU/62858/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 18th February 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE KUDHAIL

Between

RM
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Metzer, Counsel
For the Respondent: Mr Simpson, Senior Home Office Presenting Officer

Heard at Field House on 3 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 with permission against the decision of the First-tier Tribunal promulgated on 23 September 2025, who dismissed her appeal against the respondent’s decision to refuse her human rights claim.

2. The First-tier Tribunal made an anonymity order and I see no reason to depart from the Judges findings in respect of that order given the appellant‘s mental health issues.

Background

3. The appellant is a Zimbabwean national. She was diagnosed with keratoconus in adolescence while in Zimbabwe. She underwent treatment in Zimbabwe from 1990-1991, which resulted in blindness in the right eye. Between 2008 and 2017, she continued management of her condition in Zimbabwe, including by making multiple trips to the United Kingdom to obtain supplies and treatment for specialist lenes. In May 2020, due to the pandemic the appellant was unable to come to the UK and experienced difficulties in managing her eye conditions and obtain appropriate medications and care in Zimbabwe.

4. On 28 November 2020 , the appellant entered the United Kingdom with a visit visa for private medical treatment and subsequently received successive grants of leave as a private medical visitor. During 2021 and 2022 she continued to receive specialist ophthalmic care in the UK. In December 2022, she was diagnosed with advanced HIV. She commenced oral antiretroviral therapy but experienced intolerance, and a psychological assessment was arranged due to distress and stigma.

5. On 9 June 2023, the appellant lodged an FLR(HRO) application on medical and private life grounds. The Secretary of State refused the application on 16 October 2023, finding that the Article 3 medical threshold was not met, that treatment was available in Zimbabwe, and that the private life rules were not satisfied.

First-tier Tribunal decision

6. The First-tier Tribunal Judge (the Judge), accepted the appellant has the medical conditions outlined above. He accepted that the appellant specific HIV antiretrovirals were not administered in Zimbabwe either as injectables or at all, but found this did not dictate that adequate treatment was unavailable. The medical evidence did not say current treatment was the only option and there was no evidence that private treatment would be unaffordable. He also accepted that without the Scleral lens the appellant would be seriously limited in her ability to perform day to day tasks. He found she had not given reasons why she could not continue as she had done previously, namely travelling to get such treatment to either South Africa or the UK. He placed limited weight on the appellants claims she did not have support as it was unclear why her son or daughter could not assist her. Further that given her father has dementia it was unclear who assists him and why similar assistance would not be available to the appellant.

7. In conclusion he found the appellant failed to make out a prima facie case that treatment is unavailable and/or not accessible in Zimbabwe as to meet AM (Article 3, health cases) Zimbabwe [2022] UKUT 00131, thus Article 3 ECHR was not engaged. He also found there were not very significant obstacles or unjustifiably harsh consequences shown to breach Article 8 ECHR. The appeal was dismissed on both grounds.

Permission to appeal

8. Judge Parkes (FtT) granted permission on 02 December 2025 on all three grounds. Those grounds are as follows:
a) Ground 1 – The Judge failed to give adequate reasons on a material matter, that is whether the first limb in AM (Zimbabwe) was satisfied (i.e., whether the appellant is a seriously ill person).
b) Ground 2- The Judge misdirected itself in law by conflating/incorrectly applying the second limb of AM (Zimbabwe), including treating the possibility of accessing treatment via a third country (e.g., South Africa/UK) as meeting the test, rather than focusing on availability and/or access in Zimbabwe.
c) Ground 3 – The Judge failed to give adequate reasons for concluding that family support would be available, despite evidence that the appellant’s children are abroad and her father has dementia. The judge does not give reasons why these accounts were not accepted.

The hearing

9. At the hearing Mr Metzer provided a late skeleton argument filed the preceding day. He made an application for its admission citing he was instructed late and believed the skeleton would provide the Tribunal with assistance. Mr Simpson did not object. Therefore, I allowed this to be admitted.

10. I proceeded to hear submissions on the grounds of appeal on which the appellant had been granted permission. I heard submissions from both parties and indicated at the end of the hearing that I reserved the decision, which I now set out.

Discussion and reasons

11. On behalf of the appellant, Mr Metzer submits that the Judge failed to make a necessary finding on whether the appellant is a “seriously ill person” for the purposes of the first limb of the test in AM (Zimbabwe). Although the determination referred to her having “serious, lifelong debilitating conditions,” no explicit finding was made. This omission is said to be material given the appellant’s late‑diagnosed HIV with high viral load, and her severe ophthalmic condition, particularly as her treatment is accepted as not being accessible or available in Zimbabwe.

12. For the respondent, Mr Simpson submits that the Judge did, in substance, accept that the appellant was seriously ill, pointing to paragraph 39 of the determination. He argued that the issue was not taken by the respondent and that the judge clearly proceeded on the basis that the first limb of AM (Zimbabwe) was met, notwithstanding the absence of a discrete finding.

13. The Judge was required to apply the two‑limb test in AM (Zimbabwe), the first element of which is a determination of whether the appellant is a seriously ill person. Although, the judge referred at paragraph 39 to the appellant’s “serious, life‑long debilitating conditions”, this reference appears in the concluding section of the decision and is not framed specifically as a finding on the first limb of the test. It also follows consideration of the second limb rather than preceding it. The structure of the reasoning is inconsistent with the guidance in AM (Zimbabwe). However, the Judge does make an express finding that the appellants medical conditions are “serious”. The Judge was aware of the test as this is set out at paragraph 13. I am satisfied the judge has addressed the first limb sufficiently and found the appellant to be a seriously ill person. It is only upon being satisfied, that he moved onto the second limb of the threshold test. Therefore, I am not satisfied this is a material error of law.

14. On the second ground, Mr Metzer argues that the Judge misdirected itself in applying the second limb of AM (Zimbabwe) by setting the threshold too high and failing to properly engage with whether there were substantial grounds for believing that there would be a real risk of significant deterioration in the appellant’s health on return. He submits that the judge wrongly inferred that alternative HIV treatments must be available because the consultant had not expressly ruled them out, despite evidence that the appellant cannot tolerate oral HIV medication and that her current injectable therapy is not available in Zimbabwe. The Judge is also said to have failed to address supply issues, to have produced inconsistent findings, and to have omitted any assessment of the likely impact on intense suffering and/or life expectancy.

15. In response to the second ground, Mr Simpson maintains that the appellant is seeking to expand the grounds of appeal and that the Judge properly considered the available evidence. He submits that HIV antiviral treatment exists in Zimbabwe and that there was no evidence that alternative treatment would be unsuitable for the appellant. The Judge was entitled to take into account the appellant’s history of using private healthcare. He argues that the appellant’s criticism amounts to disagreement with findings of fact and that no properly arguable Article 3 case was before the Judge.

16. At paragraph 28, the Judge noted the respondents concession that the appellants lenses were not available in Zimbabwe but that she argued they were widely available in south Africa. The Judge noted supply issues of antiretrovirals and that there was no information if those available were injectables. At paragraph 31, he accepted the appellants current treatment for HIV is not available in Zimbabwe but reasoned the HIV consultant did not set out if there were alternatives. At paragraph 32, he found that the appellant had not established evidentially that no other adequate HIV treatment was available to her. The judge has not addressed the appellants specific circumstances that she is intolerant to oral medication and more importantly, the appellant’s access to such medication, given the accepted supply issues. Therefore, I am satisfied there is an error of law.

17. As to the ground that the Judge considered a third state when making findings on availability of medical care, I am satisfied the Judge did not consider the appellant circumstances in respect of the “receiving state”. In THTN v Secretary of State for the Home Department [2023] EWCA Civ 1222, the court confirms that “Stage one of the process requires the applicant to provide strong evidence of the seriousness of the illness including the treatment involved and the consequences of removal of treatment. Those are matters which will only be within the knowledge of the applicant. She also must provide sufficient evidence to cast doubt on the availability or accessibility of treatment in the receiving state. The SSHD (or on appeal the F-TT) will be well capable of determining whether sufficient evidence has been adduced to cast doubt on the receiving state's medical facilities.”

18. Therefore, I am satisfied the Judge materially erred in law by considering alternative treatment and care in a third state. Taken cumulatively, the Judge failed to apply the correct threshold test and failed to evaluate the evidence in accordance with the principles in AM (Zimbabwe). This constitutes a material misdirection of law.

19. The third ground contends that the Judge gave inadequate reasons for concluding that family support would be available in Zimbabwe. The appellant’s children live abroad, and her only relative in Zimbabwe is her father, who has dementia and requires care himself. Mr Metzer argues that the Judge did not engage with the practicalities of how support could be provided and failed to address why he rejected the appellant evidence that she had no support. Mr Simpson submits that the Judge adequately reasoned its conclusion on family support, that there were gaps in the evidence which the Judge highlighted and that these were findings open to him.

20. The judges reference to support is in the context of findings made as to accessibility of treatment. At paragraph 34, the judge finds the son can support the appellant obtain treatment in South Africa. For reasons given above, I am satisfied this is a misdirection of the law. As to the daughter and the fathers support, I am satisfied these were findings open to the Judge given the evidence before him.

21. The Upper Tribunal interferes only with caution in the findings of fact by a First-tier Tribunal which has heard and seen the parties give their evidence and made proper findings of fact. This has been stated numerously by the higher courts, for example recently in Volpi & Anor v Volpi [2022] EWCA Civ 464. Unfortunately, that is not the position here. The Judge’s decision was vitiated by material errors in the way that he approached the Article 3 ECHR, threshold test as per AM (Zimbabwe). This is a material misdirection of the law which has infected the entirety of the decision. Therefore, I am satisfied the decision does contain a material error of law.

22. Applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC), I have 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 Statement. I consider, however, that there is a need for updated evidence given this appeal relies on medical conditions which are evolving over time. I am also satisfised it would be unfair for either party to be unable to avail themselves of the two-tier decision-making process. According, I am satisfied this appeal should be remitted to the First-tier Tribunal for a de-novo hearing.

Notice of Decision

The decision of the First-tier Tribunal involved the making of an error of law and is set aside in its entirety.

The appeal is remitted to the First-tier Tribunal to be reheard by any judge other than Judge Ficklin.

Judge Kudhail

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
10 February 2026