Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005769
First-tier Tribunal No: HU/57863/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 16th of April 2026

Before

UPPER TRIBUNAL JUDGE LODATO

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

PAUL SMITH
Respondent

Representation:
For the Appellant: Mr Wain, Senior Presenting Officer
For the Respondent: Ms Foot, counsel

Heard at Phoenix House (Bradford) on 11 March 2026

DECISION AND REASONS

Introduction and Background

1. The Secretary of State for the Home Department appeals with permission against the decision, dated 27 June 2025, of a judge of the First-tier Tribunal Judge (‘the judge’) to allow the appeal on human rights grounds.

2. To avoid confusion, and for the remainder of this decision, I will refer to the appellant in these error of law appellate proceedings, the Secretary of State for the Home Department, as the respondent and the respondent in the Upper Tribunal, Paul Smith, as the appellant, as they were before the First-tier Tribunal (the ‘FtT’).

3. The appellant is a serious foreign criminal. The judge summarised his antecedent history at [6]:

[6] The Appellant has amassed a total of 32 convictions for 52 offences from 23 September 1997 to 16 September 2020. The offences include 2 sexual offences; 2 offences against property; 40 theft and kindred offences; 1 public disorder offence; 6 offences relating to police/courts/prisons and 1 drug offence. He received various short terms of imprisonment and received various fines and probation orders. In particular, the Appellant was convicted:

• on 30 January 2004 of ‘robbery’ and sentenced to 5 years imprisonment.
• In November 2008 of sexual assault and sentenced to 21 months’ imprisonment

4. The appeal proceedings arose in the context of a deportation order. The respondent argues that the judge erred in law in how he approached the appellant’s absolute right not to be subjected to inhuman and degrading treatment. This right, under Article 3 of the ECHR, does not involve any balancing exercise which would take in considerations of the public interest in removing him as a foreign criminal.

The Relevant Parts of the FtT Decision

5. The appeal was dismissed on human rights grounds in a decision dated 27 June 2025. For the purposes of the present proceedings, the following key matters emerge from the decision:

• The judge directed himself, at [23] as to the legal principles underlying the application of Article 3 of the ECHR in a claim founded on the health of the appellant:

[23] To succeed on article 3 (medical grounds), the question is whether the refusal breaches the Appellant’s Article 3 ECHR right not to be “subjected to torture or to inhuman or degrading treatment or punishment”. 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.

• The first principal controversial issue between the parties was articulated, at [30], as:

[30] Article 3: Whether the Appellant’s removal to Angola would breach his rights under Article 3 ECHR, owing to his risk of destitution and/or suicide and/or deterioration in his mental health, due to the non-availability of treatment;

• The judge went on, at [31], to set himself a series of questions to come to a lawful conclusion on the Article 3 health claim:

[31] In relation to article 3, I will need to assess:

(i) Has the Appellant discharged the burden of establishing that he is “a seriously ill person”?
(ii) Has he adduced evidence “capable of demonstrating” that “substantial
grounds have been shown for believing” that as “a seriously ill person”, he or she “would face a real risk”: either
(iii) “on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed.:
(a) to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering, or
(b) to a significant reduction in life expectancy”?

• At [35]-[36], the judge referred to the expert evidence of Dr Cordwell who opined that the appellant was a seriously ill person with severe Major Depressive Disorder, Generalised Anxiety Disorder and severe PTSD and that he required ongoing specialist therapy.

• At [37], the following extract from Dr Cordwell’s report was included in the decision:

[37] […] [The appellant] would experience a profound deterioration in his mental health and an acute exacerbation of his depression, and especially PTSD symptomatology should he be returned to Angola. There would also likely be an exacerbation of his paranoid thoughts and ideation which would further compound his ability to manage the emotional distress linked to the PTSD. These symptoms would be very distressing for him, and he would likely find them intolerable. This would significantly increase his risk of suicide as he has previously sought to end his life when he feels distress is intolerable. This increased emotional distress would result in an increased vulnerability, and because of this he would be unlikely to independently seek professional support for his difficulties in the absence of the professional support he currently has available to him. It remains my view that Mr. Smith would likely present with a very high risk of suicide upon return to Angola, and he would face a real risk, if unable to access treatment in Angola, of being exposed to a serious rapid decline in his psychological health resulting in intense suffering. It remains my opinion that Mr. Smith requires psychological treatment for his mental health, and that he requires long term support to assist him in his recovery from his experience of mental health difficulties and trauma. In my opinion, it is going to be difficult for Mr. Smith to achieve stability in his recovery whilst his immigration status remains uncertain (paragraph 6.08 (78)).

[Underlining added]

• The judge alluded, at [38], to the respondent’s concern that the expert had based his report on an incomplete record of the appellant’s medical history, before citing the broad principles decided in HA (expert evidence; mental health) Sri Lanka [2022] UKUT 00111 (IAC), at [39] of his decision.

• In answer to these concerns, at [40], the judge pointed to the expert’s consideration of the medical records in his initial report of 5 April 2022. In the addendum report, it was noted that the expert appeared to have regard to a medical record summary, but the respondent was said to be “correct” that there was no confirmation that this was up to date.

• Between [41] and [47], the judge addressed features of the medical background, since April 2022, to which the expert had regard. These features included:

• The appellant’s current lack of engagement with mental health services.

• A referral to, and assessment by, the Community Mental Health Team (‘CMHT’) in the Summer of 2022.

• The appellant being directed to the PAFRAS service in September 2022.

• The appellant’s lack of further engagement with the CMHT since August 2022.

• A letter from a senior clinician at PAFRAS, dated 4 November 2024.

• At [43], the judge addressed a further concern expressed by the respondent which was founded on the gap in the availability of recent medical records:

[43] The Respondent suggested that in the absence of the medical records, the Appellant may have sought to fabricate or exaggerate their symptoms within this assessment, However, I note that the Appellant had told Dr Caldwell that he had not heard any hallucinatory voices in the last 18 months. In my judgement, the Appellant could easily have claimed to have heard voices recently, but the fact that he did not do so is indicative of someone who did not exaggerate his circumstances.

• As the respondent takes issue with the substance of the judge’s conclusions on the Article 3 health claim and the structure and sequencing of those conclusions, it is necessary to set out the judge’s analysis on these points in full. He reached the following findings, according to the sequential questions he posed for himself, between [50] and [72]:

Conclusions

[50] it is unfortunate that Dr Caldwell does not explicitly confirm that he had regard to the updated GP medical records. Nevertheless, in my judgement Dr Caldwell has engaged with the Appellant’s recent medical records and had regard to the PARFAS letter. In this context, I note that the recent records are unlikely to provide much assistance or insight, given that, on the Appellant’s own account he has not engaged with CMHT since August 2022 and his contact with his GP is only in respect of his medication.

[51] Overall, I am satisfied that I can attach significant weight to Dr Caldwell’s opinion. The report provides a detailed and comprehensive analysis of the Appellant’s mental health issues and of the risk of him reoffending. The Appellant has a history of suffering from mental health issues and Dr Caldwell’s findings are consistent with that history.

Is the Appellant a seriously ill person?

[52] Having found that I can attach significant weight to the reports by Dr Caldwell, I find that the Appellant is a seriously ill person. I accept Dr Caldwell’s diagnosis and find that the Appellant suffers from a Major Depressive Disorder of a severe nature and PTSD of a severe nature. He is taking appropriate medication, which helps manage his heath. I also accept that requires two forms of therapy, but he is not ready for that treatment because of the stress and anxiety that stems from his lack of status in the UK and the threat of deportation.

Will there be 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

[53] The Appellant acknowledges that he is currently able to manage his mental health and his case is that the prospect of removal will be the catalyst for the rapid deterioration in his health. In this context, I note the Appellant’s claim is not based on him fearing that he will be ill-treated upon return to Angola, but arises from the fact that the Appellant is a vulnerable man. Dr Caldwell noted that the Appellant

“experiences a strong sense of inadequacy and worthlessness, driven by shame, depression and posttraumatic stress. He struggles with marked trauma symptoms, both in terms of the anxiety induced, but also the sense of shame and stigma associated with his experiences of sexual abuse. He can be socially distanced and isolated from others and can often feel helpless. He can struggle to attach and feel safe with others as a result of poor emotional attachments in childhood and because of being mistrusting, exacerbated by his paranoid thoughts. He can often feel physically inert and inactive and struggles with apathy linked to the depression and emotional fatigue from the trauma symptoms (paragraph 1.2 of the initial report at (307)).

[54] In my judgement, this issue is finely balanced. Dr Caldwell addresses this issue at paragraph 6.08 of the addendum report (see paragraph 37 above). I have carefully considered how Dr Caldwell reached his conclusions. What is striking is in the initial report, Dr Caldwell records that the there is a pattern of the Appellant “struggling with custody, and that he has demonstrated marked ambivalence and inability to regularly connect in with healthcare teams to address his psychological distress, including for trauma symptoms, paranoid thoughts and ideation and auditory hallucinations. The medical records also document the presence of symptoms of trauma, depression and auditory hallucinations between 2009 and 2016” (paragraph 5.4.2 at (315)).

[55] The Respondent in considering the initial report relied on her findings in the earlier refusal letters dated 22 March 2011 and 26 June 2012. In this context, the Respondent had accepted that the Appellant had attempted suicide on three occasions, but did not accept that he had attempted to commit suicide due to flashbacks with regard to his time in Angola, but asserted they were merely a mechanism to frustrate his removal from the United Kingdom, following refusals of his asylum applications. In other words the Appellant voluntarily and deliberately undertook the attempts. In support of this assertion, the Respondent noted that Dr Katona’s opinion report was based upon an acceptance of the Appellant’s account of what had happened to him in Angola. Whereas the Respondent had not found the Appellant’s account credible.

[56] Further, the Respondent asserted that the Appellant has not demonstrated that the threat of deportation is the sole cause of any risk of self-harm. The Respondent noted that the Appellant had attempted self-harm whilst in prison, in custody and detention and also when in the community. The Respondent also noted that he had stated that his suicidal thoughts have been ongoing since around 18 years of age which was prior to his arrival in the UK and the uncertainty surrounding his immigration status.

[57] In my judgement, the Respondent did not adequately engage with the medical evidence. The Respondent is entitled to conclude that the Appellant has not given a credible account of his experiences in Angola, but the Appellant has now provided at least 5 psychological assessments, which all indicate that the Appellant’s mental health is likely to rapidly deteriorate upon removal to Angola.

[58] Further, the Respondent’s observations are at odds with the fact that the Respondent had arranged travel documents for the Appellant on at least 2 occasions, but the Appellant’s removal was not were unsuccessful the Appellant were not Appellant agreed to return to Angola on 3 occasions and the his [sic] removal.

[59] In any event, Dr Caldwell recorded that the Appellant has now disclosed that he was raped by soldiers as a child in Angola and had a childhood characterized by abuse, neglect and trauma.. This is fresh information that has simply not been addressed by the Respondent (except insofar as it is suggested that the Appellant may be exaggerating or falsifying his claimed mental health difficulties).

[60] Overall, I am satisfied that the Appellant has provided cogent and credible evidence of the risk of suicide. Dr Caldwell’s conclusions are consistent with the earlier medical reports and are evidence based. He set out in detail why he reached those conclusions.

[61] On the totality of the evidence, I am satisfied that the Appellant has adduced evidence capable of demonstrating that “substantial grounds have been shown for believing” that as a seriously ill person, he will present as a “very high risk of suicide” upon return to Angola and, there will be a significant reduction in life expectancy. In the alternative, I am satisfied that there will be a serious rapid and irreversible decline in his state of health resulting in intense suffering.

Has the Respondent rebutted the presumption?

[62] The Respondent has satisfied me that sufficient safeguards will be in place to mitigate against the risk at the initial stage of removal and during removal. In this context, I note that the Respondent already has all reasonable measures in place to protect against any risk of suicide whilst in detention. The Respondent also noted that the Appellant’s representatives would be consulted to ensure that they have every opportunity to be present when the decision is served and that he will be able to consult with them after. Further, the trained on-site staff will also be aware of his situation and will ensure that mechanisms continue to remain in place to reduce any risk of self-harm (see the refusal letter dated 22 March 2011)

[63] As to the risk arising during removal the Respondent asserted that “UKBA will inform the contractor effecting removal of this risk. Where a removal contractor is informed, or has any reason to suspect that a detainee may have suicidal or self-harming tendencies, it will be noted and a suitable escort will be provided, including a medical escort if necessary. The contractor will conduct a full risk and special needs assessment prior to removal. Escorting personnel will be certified detainee custody officers who have received suicide and self-harm awareness and prevention training. In addition, medically qualified support will be provided when assessed as necessary. Escorts will accompany the person at risk to the point of arrival in the country of return. It is therefore considered that there would not be a real risk of serious harm or loss of life during removal given these steps that will be put in place to minimize the risk” (the 2011 refusal letter).

[64] As such the key issue, is whether the Angola has effective mechanisms in place to reduce the risk of suicide upon the Appellant’s return.

Is there appropriate treatment available in Angola?

[65] The Appellant relies on the report of Dr Jon Schubert. I note he is an anthropologist with significant experience in Angola, who has conducted fieldwork there and grew up in Luanda. The Respondent has not challenged his expertise. Dr Schubert’s evidence is that:

(a) Angola’s health system is “absolutely inadequate” for a country of 24 million inhabitants (108).
(b) Whilst free healthcare is theoretically available, public hospitals are underfunded and overcrowded, with patients and their families being required to provide medication (109).
(c) There are only three mental health hospitals in Angola: one in Luanda with “basic” facilities, which restrains patients for excessive amounts of time in dirty rooms; one in Huambo which lacks essential medicine, and one in Lubango with insufficient facilities, staff and medication (109).
(d) There are no mental health facilities in the provinces and significant social stigma attached to mental health. Access to and the costs of medication is a major issue (111)
(e) The treatment required by the Appellant (namely regular psychiatric and psychosocial support and regular, reliable access to medication) would be unavailable to him in the public sector in Angola (111). Since the Appellant has no family in Angola, there is no properly functioning social security net, and he would be unable to access accommodation, it would be impossible for the Appellant to receive the care and treatment he requires on the medical evidence (i.e. the report of Dr Cordwell, provided to Dr Schubert) (112) – (114).
(f) He would most likely face a life of destitution in Angola (114).

[66] Further, I accept the evidence demonstrates that when the Appellant feels that a situation is ‘intolerable’ he is unlikely to access any treatment (even if it is available).

[67] On the totality of the evidence, I am satisfied that the Appellant has provided sufficient evidence to cast doubt on the availability or accessibility of treatment in Angola. I have serious doubts about the Angolan authorities ability to reduce the risk. As such, I now consider whether the Respondent can rebut those doubts.

[68] In the refusal letter, the Respondent quotes from a Country of Origin Information Report dated 15 September 2023. However, the Respondent has not provided a copy of this document. In the absence of the report, I am reluctant to attach weight to selected extracts. In any event, I note that the observations in the report appear consistent with Dr Schubert’s opinions. In particular, the extract notes that

“The country has a long history of conflict and violence, which has resulted in a high level of mental health problems among the population … however, access to mental health care in Angola is very limited. There are only a few psychiatrists in the country and they are based in the capital city. This means that many people who need help do not have access to it. There are also few psychological services available in Angola”

[69] The Respondent’s attempt to rebut the presumption arising from the evidence before me is woefully inadequate. On the totality of the evidence, I am satisfied that there are substantial grounds for believing that the treatment required is unavailable and, or the Appellant will be unable to access the treatment.

[70] In these circumstances, I now consider the Respondent’s residual obligation. The Respondent has not provided any evidence of any attempt to obtain an assurance from the Angolan authorities that the Appellant will be able to access adequate treatment or what measure she may be able to offer to help mitigate against the risk.

[71] On the totality of the evidence, the Appellant has demonstrated that there are substantial grounds for believing that as a seriously ill person, he would face a real risk, on account of the absence of appropriate treatment in the receiving country 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 (a very high risk of suicide).

[72] If I am wrong and appropriate treatment is available, then I am satisfied that the Appellant has demonstrated that there are substantial grounds for believing that as a seriously ill person, he 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 because he would be unable to access the treatment.

Appeal to the Upper Tribunal

6. The respondent applied for permission to appeal in reliance on four grounds:

Ground 1: Misapplication of the AM (Zimbabwe) Test - Failure to Properly Assess "Intense Suffering" Threshold
Under this head of challenge, it is argued that the judge:
• wrongly conflated a significant reduction in life expectancy with a serious, rapid and irreversible decline in his state of health resulting in intense suffering. This finding was underpinned by a conclusion that the appellant was at a very high risk of suicide which could only go to a significant reduction of life expectancy, not intense suffering.
• failed to properly address his mind to whether a causative nexus existed between the act and process of removal and the claimed deterioration in mental health given the already existent serious mental health conditions and background of suicide attempts in the UK.
• in relation to the suggested significant reduction in life expectancy, did not engage in the structured analysis referred to in MY (Suicide risk after Paposhvili) [2021] UKUT 00232 (IAC), which was drawn from J v Secretary of State for the Home Department [2005] EWCA Civ 629; [2005] Imm AR 409 (as reformulated in Y (Sri Lanka) v SSHD [2009] EWCA Civ 362).

Ground 2: Inadequate Assessment of Treatment Availability in Angola
Under this head of challenge, the judge is said to have:
• over-relied on generalised expert country evidence from Dr Schubert without properly considering what basic treatment might be available such that the judge did not indulge in the fallacy that the treatment in Angola ought to be on a par with the UK.
• wrongly relied on the expert evidence of Dr Cordwell given the gap in the medical records he had available to him.

Ground 3: Procedural Obligations - Premature Application of Paposhvili Requirements
Under this head of challenge, the judge is said to have:
• asked himself whether the respondent had dispelled serious doubts about the adequacy of treatment and obtained assurances from Angola at the wrong stage of the sequential analysis. That this had the effect of requiring the secretary to disprove a matter which it was for the appellant to establish.

Ground 4: Inadequate Expert Evidence Assessment
Under this head of challenge, the judge is said to have erred by:
• failing to properly scrutinise the gap in the records which underpinned Dr Cordwell’s expert evidence.
• failing to adequately consider the respondent’s concerns about the credibility of the appellant’s self-reported symptomology.

7. A judge of the Upper Tribunal granted permission for all grounds to be argued. The appellant provided a rule 24 response to the appeal.

8. At the error of law hearing, I heard detailed and helpful oral submissions from both parties. I address any submissions of significance in the discussion section below.

The Legal Framework

9. Article 3 of the European Convention on Human Rights (‘ECHR’) provides:

Prohibition of Torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

10. The fundamental legal test by which Article 3 health claims fall to be assessed is set out in the Supreme Court judgment in AM (Zimbabwe) v SSHD [2020] UKSC 17; [2020] 2 WLR 1152. The essential ingredients of what must be established, by whom and in which order, were set out at paragraphs [32]-[33] of the judgment of Lord Wilson JSC:

[32] […] The basic principle is that, if you allege a breach of your rights, it is for you to establish it. But “Convention proceedings do not in all cases lend themselves to a rigorous application of [that] principle”: DH v Czech Republic (2007) 47 EHRR 3, para 179. It is clear that, in application to claims under article 3 to resist return by reference to ill-health, the Grand Chamber has indeed modified that principle. The threshold, set out in para 23(a) above, is for the applicant to adduce evidence “capable of demonstrating that there are substantial grounds for believing” that article 3 would be violated. It may make formidable intellectual demands on decision-makers who conclude that the evidence does not establish “substantial grounds” to have to proceed to consider whether nevertheless it is “capable of demonstrating” them. But, irrespective of the perhaps unnecessary complexity of the test, let no one imagine that it represents an undemanding threshold for an applicant to cross. For the requisite capacity of the evidence adduced by the applicant is to demonstrate “substantial” grounds for believing that it is a “very exceptional” case because of a “real” risk of subjection to “inhuman” treatment. […]

[33] In the event that the applicant presents evidence to the standard addressed above, the returning state can seek to challenge or counter it in the manner helpfully outlined in the judgment in the Paposhvili case at paras 187—191 and summarised at para 23(b)—(e) above. The premise behind the guidance, surely reasonable, is that, while it is for the applicant to adduce evidence about his or her medical condition, current treatment (including the likely suitability of any other treatment) and the effect on him or her of inability to access it, the returning state is better able to collect evidence about the availability and accessibility of suitable treatment in the receiving state. What will most surprise the first-time reader of the Grand Chamber’s judgment is the reference in para 187 to the suggested obligation on the returning state to dispel “any” doubts raised by the applicant’s evidence. But, when the reader reaches para 191 and notes the reference, in precisely the same context, to “serious doubts”, he will realise that “any” doubts in para 187 means any serious doubts. For proof, or in this case disproof, beyond all doubt is a concept rightly unknown to the Convention.

11. Paposhvili referred to the causative nexus which must be established at [187]. In the context of seeking to dispel doubts which arise, the returning state “must consider the foreseeable consequences of removal” (also see the headnote and discussion between [109] and [126] of OA (Somalia) Somalia CG [2022] UKUT 00033 (IAC) insofar as it referred to causation and temporal proximity in a “living conditions” Article 3 case). The ECtHR elaborated on the causal relationship between the act of the returning state and the suffering which is at real risk of following at [175]

[175] The Court further observes that it has held that the suffering which flows from naturally occurring illness may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible (see Pretty, cited above, § 52). However, it is not prevented from scrutinising an applicant’s claim under Article 3 where the source of the risk of proscribed treatment in the receiving country stems from factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country (see D. v. the United Kingdom, cited above, § 49).

12. From the Supreme Court’s analysis of the applicable legal test, and the ECtHR synthesis of the nature of that test, the Upper Tribunal settled on a sequential series of questions tribunals should ask when faced with an Article 3 health claim, at [1] of the headnote:

(1) Has the person (P) discharged the burden of establishing that he or she is “a seriously ill person”?
(2) Has P adduced evidence “capable of demonstrating” that “substantial grounds have been shown for believing” that as “a seriously ill person”, he or she “would face a real risk”:
[i] “on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment,
[ii] of being exposed
[a] to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering, or
[b] to a significant reduction in life expectancy”?

13. At paragraph [2] of the headnote, the panel emphasised the importance of competent expert evidence in the assessment of whether a person was seriously ill. At headnote paragraphs [3]-[4], the following guidance was provided about the meaning of “intense suffering” and the kind of evidence which might be necessary to establish the absence of the required treatment as well as stressing that the state’s obligations only come into focus after the threshold test has been met:

[3] The second question is multi-layered. In relation to (2)[ii][a] above, 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. Generally speaking, whilst medical experts based in the UK may be able to assist in this assessment, many cases are likely to turn on the availability of and access to treatment in the receiving state. Such evidence is more likely to be found in reports by reputable organisations and/or clinicians and/or country experts with contemporary knowledge of or expertise in medical treatment and related country conditions in the receiving state. Clinicians directly involved in providing relevant treatment and services in the country of return and with knowledge of treatment options in the public and private sectors, are likely to be particularly helpful.

[4] It is only after the threshold test has been met and thus Article 3 is applicable, that the returning state’s obligations summarised at [130] of Savran become of relevance – see [135] of Savran.

14. The Supreme Court’s judgment in AM (Zimbabwe) broadly followed the approach adopted by the ECtHR in Paposhvili v Belgium (Application no. 41738/10), which was later endorsed in Savran v Denmark (Application no. 57467/15). It is worth observing, as the respondent did in the proceedings before me, that the jurisprudence of the ECtHR has emphasised that Article 3 health claims are not be decided on the strength of crude comparisons between the healthcare available in the returning state and that available in the receiving state (see, in particular, [189] and [192] of Paposhvili).

15. Where an Article 3 health claim involves the risk of suicide, the Upper Tribunal, in MY (Suicide risk after Paposhvili) [2021] UKUT 00232 (IAC), considered the role to be played by pre-AM (Zimbabwe) authorities on how such matters should be assessed. The headnote is in the following terms:

Where an individual asserts that he would be at real risk of (i) a significant, meaning substantial, reduction in his life expectancy arising from a completed act of suicide and/or (ii) a serious, rapid and irreversible decline in his state of mental health resulting in intense suffering falling short of suicide, following return to the Receiving State and meets the threshold for establishing Article 3 harm identified at [29] – [31] of the Supreme Court's judgment in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17; [2020] Imm AR 1167, when undertaking an assessment the six principles identified at [26] – [31] of J v Secretary of State for the Home Department [2005] EWCA Civ 629; [2005] Imm AR 409 (as reformulated in Y (Sri Lanka) v SSHD [2009] EWCA Civ 362) apply.

16. The pre-existing factors, which I will henceforth refer to as the J/Y considerations, are set out at [16]-[18] of the decision:

[16] The J test, as formulated at [26] to [32] notes: -

"First the test requires an assessment to be made of the severity of the treatment which it is said that the applicant will suffer if removed. This must attain a minimum level of severity. The court has said on a number of occasions that the assessment of its severity depends on all the circumstances of the case. But the ill-treatment must 'necessarily be serious such that it is 'an affront to fundamental humanitarian principles to remove an individual to a country where he is at risk of serious ill-treatment': see Ullah paras [38]-[39].

Secondly, a causal link must be shown to exist between the act or threatened act of removal or expulsion and the inhuman treatment relied on as violating the applicant's Article 3 rights. Thus, in Soering at para [91], the court said:

'Insofar as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing contracting state by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment' (emphasis added).

See also [108] of Vilvarajah where the court said that the examination of the Article 3 issue 'must focus on the foreseeable consequences of the removal of the applicants to Sri Lanka …'

Thirdly, in the context of foreign cases, the Article 3 threshold is particularly high simply because it is a foreign case. And it is even higher where the alleged inhuman treatment is not the direct or indirect responsibility of the public authorities of the receiving state, but results from some naturally occurring illness, whether physical or mental. This is made clear in para [49] of D and para [40] of Bensaid.

Fourthly, an Article 3 claim can in principle succeed in a suicide case (para [37] of Bensaid).

Fifthly, in deciding whether there is a real risk of a breach of Article 3 in a suicide case, a question of importance is whether the applicant's fear of ill-treatment in the receiving state upon which the risk of suicide is said to be based is objectively well-founded. If the fear is not well-founded, that will tend to weigh against there being a real risk that the removal will be in breach of Article 3.

Sixthly, a further question of considerable relevance is whether the removing and/or the receiving state has effective mechanisms to reduce the risk of suicide. If there are effective mechanisms, that too will weigh heavily against the applicant's claim that removal will violate his or her Article 3 rights".

[17] In Y the Court of Appeal stated: -

"15. … The corollary of the final sentence of §30 of J is that in the absence of an objective foundation for the fear some independent basis for it must be established if weight is to be given to it. Such an independent basis may lie in trauma inflicted in the past on the appellant in (or, as here, by) the receiving state: someone who has been tortured and raped by his or her captors may be terrified of returning to the place where it happened, especially if the same authorities are in charge, notwithstanding that the objective risk of recurrence has gone.

16. One can accordingly add to the fifth principle in J that what may nevertheless be of equal importance is whether any genuine fear which the appellant may establish, albeit without an objective foundation, is such as to create a risk of suicide if there is an enforced return."

[18] The fifth point was reformulated as follows: -

"[...] whether any genuine fear which the appellant may establish, albeit without an objective foundation, is such as to create a risk of suicide if there is an enforced return. [15]"

17. I agree with Ms Foot’s submission, on behalf of the appellant, that the headnote in MY can only be properly understood in tandem with the more developed reasoning in the body of the decision between paragraphs [120]-[124]:

[120] We reject Ms Isherwood's submission that there is a threshold test in either J or Y. The 6 points made are not a test. They amplify the test set under Article 3 in the light of N ('the N test'). Furthermore, the Secretary of State now accepts that the correct test is that in Paposhvili and AM. In so far as Ms Isherwood seeks to introduce a further burden or test on the Appellant arising from Y or J by reformulating point 6, we reject this. Ms Isherwood's reformulation of point 6 is an attempt to create a threshold test which has no basis in law.

[121] Points 5 and 6 give guidance on how to deal with subjective fear. While the guidance specifically refers to suicide cases, this simply reflects the N test. In order to reflect properly the applicable Paposhvili test, the guidance should now apply to mental health cases generally where fear is unfounded.

[122] Moreover, the final sentence of point 5 is not an attempt to create any extra burden on the Appellant in a suicide (or mental health) case. The point made by the Court of Appeal in J must be considered in context. The Appellant in that case did not have psychosis or schizophrenia. He had PTSD from what had happened to him in Sri Lanka. There was treatment available in Sri Lanka to which the Appellant would have access because he had the support of family members. Moreover, in Y, the Court of Appeal added to point 5 something of particular relevance to this appeal, namely that what may be of equal importance is whether any genuine fear which the appellant may establish, albeit without an objective foundation, is such as to create a risk of suicide if there is an enforced return.

[123] The six points in J apply to mental health cases post Paposhvili. They do not impose a test or a burden on an appellant. They are guidance on how to deal with subjective fear.

[124] The Appellant must adduce evidence capable of demonstrating that there are substantial grounds for believing that Article 3 will be violated. This can be explained as raising a prima facie case which means a case which in the absence of challenge would establish infringement. It is a demanding threshold. It is for the Appellant to demonstrate that there are substantial grounds for believing that such a risk exists; after that point, the burden falls to the Secretary of State to dispel any serious doubts raised by it (AM [33].) We reject Ms Isherwood's submission on the point on her proposed suggestion of a seventh point. While the Supreme Court rejected the submission that there is an obligation to dispel any doubts, they interpreted the decision of the Grand Chamber as intending to oblige the Respondent to dispel serious doubts. In any event, this is another attempt to introduce and threshold test, which is unnecessary. The test is set out in Paposhvili and AM.

[Underlining added]

18. The Presidential panel decision in HA (expert evidence; mental health) Sri Lanka [2022] UKUT 00111 (IAC) provides guidance as to how judges should approach expert mental health evidence in this jurisdiction. The general guidance at paragraphs [2]-[6] of the headnote is as follows, where relevant for present purposes:

[2] Although the duties of an expert giving evidence about an individual's mental health will be the same as those of an expert giving evidence about any other matter, the former must at all times be aware of the particular position they hold, in giving evidence about a condition which cannot be seen by the naked eye, X-rayed, scanned or measured in a test tube; and which therefore relies particularly heavily on the individual clinician's opinion.

[3] It is trite that a psychiatrist possesses expertise that a general practitioner may not have. A psychiatrist may well be in a position to diagnose a variety of mental illnesses, including PTSD, following face-to-face consultation with the individual concerned. In the case of human rights and protection appeals, however, it would be naïve to discount the possibility that an individual facing removal from the United Kingdom might wish to fabricate or exaggerate symptoms of mental illness, in order to defeat the respondent's attempts at removal. A meeting between a psychiatrist, who is to be an expert witness, and the individual who is appealing an adverse decision of the respondent in the immigration field will necessarily be directly concerned with the individual's attempt to remain in the United Kingdom on human rights grounds.

[4] Notwithstanding their limitations, the GP records concerning the individual detail a specific record of presentation and may paint a broader picture of his or her mental health than is available to the expert psychiatrist, particularly where the individual and the GP (and any associated health care professionals) have interacted over a significant period of time, during some of which the individual may not have perceived themselves as being at risk of removal.

[5] Accordingly, as a general matter, GP records are likely to be regarded by the Tribunal as directly relevant to the assessment of the individual's mental health and should be engaged with by the expert in their report. Where the expert's opinion differs from (or might appear, to a layperson, to differ from) the GP records, the expert will be expected to say so in the report, as part of their obligations as an expert witness. The Tribunal is unlikely to be satisfied by a report which merely attempts to brush aside the GP records.

[6] In all cases in which expert evidence is adduced, the Tribunal should be scrupulous in ensuring that the expert has not merely recited their obligations, at the beginning or end of their report, but has actually complied with them in substance. Where there has been significant non-compliance, the Tribunal should say so in terms, in its decision. Furthermore, those giving expert evidence should be aware that the Tribunal is likely to pursue the matter with the relevant regulatory body, in the absence of a satisfactory explanation for the failure.

[Underlining added]

Discussion

Ground 1: Misapplication of the AM (Zimbabwe) Test - Failure to Properly Assess "Intense Suffering" Threshold

19. I am not persuaded that the judge slipped into legal error by conflating the two limbs under which the Article 3 test may be met in a case such as this. One only needs to read the plain and unvarnished words of the decision itself, at [61], to see that the judge expressly assessed the case on the alternatives bases of a significant reduction in life expectancy or a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering. I agree with the submissions made on the appellant’s behalf that the passage of Dr Cordwell’s expert report cited by the judge at [37] can only be sensibly seen as touching on intense suffering. The exacerbation of paranoid ideation leading to “emotional distress” which the appellant would be likely to find to be “intolerable” is the language of intense suffering. The expert commentary recorded at [37] is later echoed at paragraph [57] in the judge’s findings. That this symptomology might also lead to a greatly elevated risk of suicide is not a conflation but recognition that two things may be true at once or that one may lead to another. It stands to reason that an individual with extreme and debilitating mental health conditions might first experience intense suffering before attempting suicide. It is not legally flawed to consider such complex and nuanced medical evidence and conclude that both limbs of the Article 3 test are satisfied in that there is real risk of intense suffering which may precede a significant reduction in life expectancy. While it is fair to say that the focus of the judicial analysis between [53] and [61] is on the very high risk of suicide, I reject the proposition that the judge has used a very high risk of suicide as some form of shortcut to arrive at the conclusion that the appellant was at a real risk of a serious, rapid and irreversible decline in his state of health resulting in intense suffering. This simply cannot be reconciled with the comprehensive and careful analysis of the available evidence which is to be seen from the extracts I have copied above from the judge’s decision.

20. Viewing the decision as a whole, I am unable to accept the respondent’s argument that the judge has conflated two distinct concepts in applying the relevant legal test.

21. It was common ground between the parties that the judge did not expressly address the J/Y considerations. The first point to be made here is that a full reading of MY tends to reveal that there is not an inexorable requirement on judges to do so in a mechanistic series of questions and answers. What matters more is whether the relevant factors have been assessed in substance such that a lawful conclusion has been reached in seeking to apply to fundamental test drawn from the Supreme Court judgment in AM (Zimbabwe). In substance, I am satisfied that the judge has addressed all of the relevant factors which fell to be considered on the facts of the case before him.

22. The first and third of the J/Y considerations are, in truth, difficult to untangle from the overarching test settled in AM (Zimbabwe). The assessment of severity referred to in the first of the J/Y considerations is coterminous with each of the intense suffering and significant reduction in life expectancy limbs of the overarching test. The judge would have been repeating himself to address his mind to the AM (Zimbabwe) test and to then refer to the first J/Y consideration. Much the same can be said of the third consideration which dovetails with the observations made in AM (Zimbabwe) that it is not an undemanding exercise for an appellant to meet the required threshold. I will address the second consideration, on causation, below. The fourth consideration simply clarifies that the risk of suicide may qualify, in principle, under Article 3. It was never in dispute that the risk of suicide here might function, as a matter of principle, to underpin a successful Article 3 claim. For the judge to have expressly considered the fourth consideration would have added nothing of substance to the decision-making exercise. I agree with Ms Foot’s submission that the fifth consideration, which addresses the weight to be attached to an appellant subjective fears, had little to no purchase on the facts of this case because this was not a case which was in any way founded on fears of persecution or suffering serious harm in a protection context. It seems to me that the sixth of the J/Y considerations is exceptionally difficult to separate from the subsequent authorities which have developed the understanding of what must be lacking in the receiving state such that any intense suffering or significant reduction in life expectancy may be alleviated. Again, the judge considering the availability of appropriate treatment in Angola and any assurances which may have been obtained from the receiving state and then separately asking himself the sixth of the J/Y considerations about alleviating mechanisms and mitigation would achieve little more than repeating oneself.

23. The final point raised under this head of challenge is that the judge failed to adequately consider whether Article 3 conditions would be suffered “on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment”. This is the causation issue referred to as the second of the J/Y considerations. The first point to be made is that the judge demonstrably alluded, at [56], to the respondent’s contention that any Article 3 conditions would not be caused by the process, or as a result, of removal. Before this observation, the judge also appeared to refer to the causation point at [53] where he discussed the appellant’s case that “the prospect of removal will be the catalyst for the rapid deterioration in his health”. This again, appears to me to be the language of causation. It is also fair to say that the judge appears to have turned his mind to the causation question at [37] where he introduced an extract from Dr Cordwell’s report by referring to “the impact of deportation” which was followed by the extract itself which began by stating that the appellant “would experience a profound deterioration in his mental health and an acute exacerbation of his depression, and especially PTSD symptomatology should he be returned to Angola”.

24. Upon raising the respondent’s question about causation, I agree that the judge was bound to answer it. Ms Foot acknowledged during the error of law hearing that the judge did not directly address the causation issue in the reasons which followed. An issue I must grapple with is whether a fair reading of the reasons permit an inference to be drawn that the judge considered and decided this issue. The challenge to the judge’s treatment of this issue is therefore best understood as a reasons challenge. The touchstone for considering inadequacy of reasoning as an error of law remains R (Iran) & Others v SSHD [2005] EWCA Civ 982. At [13]-[14] of the judgment of Brook LJ, it was emphasised that reasons must be sufficiently detailed to show the principles on which a decision was made and why the ultimate decision was reached. Reasons need not be elaborate nor is it necessary to address each and every matter which might have had a bearing on the overall decision if those which were material to the reasoning are articulated. In DPP Law Ltd v Paul Greenberg [2021] EWCA Civ 672, the Court of Appeal, in the context of employment proceedings, considered adequacy of reasoning as an error of law. Popplewell LJ, stressed, at [57] the need to consider judicial reasons fairly and as whole without being hypercritical. Appellate restraint is required to read reasons benevolently. “Simple, clear and concise” reasoning was to be encouraged to enable to parties to broadly understand why they had won or lost. Further, it should not be assumed that an element of the evidence which was not expressly discussed was left out of account. While these observations were made in the context of employment proceedings, they are of relevance in the immigration and asylum sphere because this is also a jurisdiction in which decisions are made by expert tribunals attenuated by the need to give appeals anxious scrutiny.

25. The judge followed his allusion to the respondent’s causation concerns, at [56], by:

• Examining the respondent’s inadequate engagement with the medical evidence which revealed a likely rapid deterioration in mental health “upon removal to Angola” (at [57]).

• Referring to previous unsuccessful attempts to remove the appellant despite obtaining the necessary travel documents on two of those occasions (at [58]).

• Observing that the recent developments of the appellant’s claim to have been raped as a child in Angola had not been considered by the respondent (at [59]).

• Noting that a risk of suicide was supported by “cogent and credible evidence” which had a firm root in the previous medical history (at [60]).

• Concluding, in the initial stage of the decision-making process, that the appellant was a seriously ill person, that he was a “very high risk of suicide upon return to Angola” which met the threshold of a significant reduction in life expectancy and, alternatively, that there would be a rapid and irreversible decline in his state of health resulting in intense suffering (at [61]).

26. Try as I might and bearing in mind the need to read the judge’s reasons fairly and benevolently, I am unable to conclude that the judge has decided the important issue of causation. I have no doubt that he was aware that this was a matter to be considered because he said as much in terms. The essence of the respondent’s concern was that given the appellant’s extensive background of mental health issues and crises, he could not establish that any deterioration in his mental health and/or a serious attempt at suicide would be caused by his removal to Angola as opposed to being an eventuality which might have occurred regardless of where he happened to be and how he got there. I am unable to discern a resolution to this critical point of dispute between the parties.

27. While the judge has structured his analysis by asking himself discrete questions drawn from the applicable legal test, I was struck by how the causation issue was not one of the emboldened headings used by the judge as a step on the route to a lawful decision. The causation question is a thread which has run through the jurisprudence in this field since the J/Y considerations were crystallised by the Court of Appeal, which was itself a reflection of well-established ECtHR legal principles which continue to be seen in Paposhvili and the Supreme Court judgment in AM (Zimbabwe). This underscores its centrality in any decision as to whether the actions of the respondent will bring about the claimed Article 3 conditions.

28. I am satisfied that the omission of a decision on the causation question is an error of law. The appeal could not have been allowed on Article 3 grounds if the causation question had been resolved in the respondent’s favour. It is a plainly a material error.

Grounds 2-4

29. In view of the conclusion I have reached on ground 1, it is unnecessary to deal with the remaining grounds in substance.

Disposal

30. The parties were ultimately agreed at the error of law hearing that the appeal ought to be remitted to the FtT if any of the grounds of appeal succeeded. This is because the judge did not reach a decision on the Article 8 dimension of the appeal given his decisive conclusions on Article 3. If the appeal were to be remade in the Upper Tribunal, the result would be that the Upper Tribunal would become the first judicial decision-maker on this matter depriving the appellant of a second tier of appeal. I agree that it would not be appropriate to remake the appeal in the circumstances. I am also satisfied that it would not be appropriate to preserve any findings of fact given the centrality of the error of law.

Notice of Decision

The decision of the judge involved a material error of law. I set aside the decision and remit the appeal to be decided de novo by a different judge of the FtT.

P Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

8 April 2026