Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001575
First-tier Tribunal No: PA/64814 /2023
LP/01838/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 17th of June 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE LAY

Between

FI (Ghana)
(Anonymity Order made)
Appellant
v

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A Radford, Counsel, instructed by Turpin Miller Solicitors
For the Respondent: Mr K Ojo, Senior Home Office Presenting Officer

Heard at Field House on 8 June 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the anonymity of the Appellant is maintained.

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 a determination of First-tier Judge Zahed, promulgated on 26 January 2026, which dismissed her asylum and human rights claims. An application for permission to appeal was lodged in time on four grounds. Permission to appeal was duly granted by FTJ Kudhail in a decision dated 26 March 2026.

2. In accordance with Directions, there was a Composite Bundle (691 pages) served ahead of the error of law hearing – page references in this determination are in the form [CB: XX], denoting [Composite Bundle: PDF page finder]. It included a helpful and detailed Rule 24 reply dated 15 April 2026 to which I have had regard.

3. The Appellant is a 38-year-old Ghanaian national who claimed asylum on 11 November 2021 on the basis that she faced a risk of persecution in her home country for having converted to Christianity from Islam. Her Article 3 ECHR claim was founded upon a contended risk of harm flowing from her HIV status and lack of appropriate treatment if returned, while her Article 8 ECHR claim (as articulated in the Appeal Skeleton Argument dated 27 June 2024 [CB: 413]) advanced the submission that she was vulnerable owing to both her physical and mental ill-health, both being relevant to the proportionality of return.

4. The FTJ made a series of adverse credibility findings as regards the asylum claim, rejecting the account of conversion, family ostracism and harm (paragraphs 17 to 27). The FTJ also, at paragraphs 28 to 30 dismissed the “medical claim”, before proceeding at paragraph 31 to dismiss “the Appellant’s … human rights appeals”, which Mr Ojo – on behalf of the Secretary of State – argued was a resolution of the Article 8 ECHR claim and which Ms Radford, on behalf the Appellant, submitted was not a paragraph which could in any sense be said to be an adequate consideration of proportionality.

5. There were four grounds of appeal on which permission was granted [CB: 9]. Ground 1 argued that the FTJ had erred in his approach to consideration of the Appellant’s credibility and, in turn, had not rationally evaluated whether her account was to be accepted; Grounds 2 and 3, which dovetailed, argued that there had been a failure to assess the Article 3 ECHR “medical claim” in accordance with the staged procedure identified (following remittal post-Supreme Court) in AM (Article 3, health cases) Zimbabwe [2022] UKUT 131 (IAC); Ground 4 argued that there had been no, or no adequately reasoned, Article 8 ECHR evaluation.

6. At the outset of the hearing, I clarified a procedural issue with the parties. The solicitor acting on behalf of the Appellant had submitted an application on 22 May 2026 for a new witness statement to be admitted as “relevant to the error of law”, albeit it seemed to be an attempt to factually rebut an assertion made in the Respondent’s Rule 24. Ms Radford clarified that this witness statement was, if anything, relevant only at the remaking stage and was not relied upon for the purposes of establishing an error per se.

Conclusions

Grounds 2 & 3: AM Zimbabwe

7. I will first address Grounds 2 and 3 relating to the consideration of the medical claim and AM Zimbabwe. I agree with Ms Radford’s submission that there is a significant lacuna in the FTJ’s approach at paragraphs 28 to 31, both in terms of the legal framework/thresholds and treatment of the evidence.

8. Firstly, rational consideration of AM Zimbabwe required the FTJ to ask himself whether, at the first stage, the Appellant was a “seriously ill person”; and, if so, at stage two, to then ask whether the Appellant had adduced evidence “capable of demonstrating” that “substantial grounds have been shown for believing” that as “a seriously ill person”, she “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”. If the answer to that question – sometimes called the “threshold test” - was in the affirmative, then the burden shifts to the Respondent to assuage the concerns raised as to the risk of Article 3 ECHR breach.

9. What is to be found at paragraphs 28 & 29 of the determination is the following: “I find that the Appellant has HIV which is under control with a low viral load. I find that the Appellant can obtain treatment in Ghana – that treatment is available and free for exempt groups and that the Appellant will fall into that exempt group as she has HIV… I find that the appellant’s HIV condition does not give rise to engaging [sic] or reaching the high threshold required under Article 3 as confirmed by … AM Zimbabwe… I also find that the appellant can receive medical treatment and medication in Ghana.”

10. Significantly, as pleaded, I agree that there was no apparent consideration of the evidence proffered of the current complex medication regime the Appellant receives in the UK. The letter of her treating consultant, Dr Bracchi, dated 1 September 2025 [CB: 316] clearly laid out that the Appellant’s HIV has proved resistant to first-line drugs and she was therefore being managed with Symtuza, a pill which is a combination of four anti-retrovirals, two of which (Darunavir and Cobicistat) do not appear in the Respondent’s Country Policy Information Note as first-line drugs in Ghana [CB: 406]. The fact of the Appellant being treated by a particular class of drugs and the risk of changing her regimen were a central part of her Article 3 ECHR claim. As Dr Bracchi opined: “A treatment with Dolutegravir, Tenofovir disoproxil, Emtricitabine, which is what is available as first-line in Ghana, would not be effective in treating her HIV infection… She needs to be on boosted protease inhibitors”. Dr Bracchi then outlined the risks that would be “likely” if her medication regime were to be discontinued or changed.

11. On a plain reading of the determination there is no reasoned consideration of that evidence nor its application to the relevant legal framework. Mr Ojo argued that it was inevitable that the FTJ would have accepted, at stage one, that the Appellant was a “seriously ill person” given her complex HIV diagnosis but I struggle to read that into the determination itself. Even if the FTJ did consider that the first stage was satisfied, it is only more stark that – at stage two – there is a finding that she can receive the required medical treatment without any reference to the consultant’s letter and the Respondent’s own CPIN. If the FTJ rejected the contention that there were substantial grounds for believing that the Appellant was at risk of not being able to access boosted protease inhibitors, or otherwise had no doubts about what was available in Ghana, then he was obliged to provide at least minimal reasoning on the evidence being considered and rejected. The evidence could be rejected, critiqued and deprecated but it could not be ignored.

12. I note that a “reasons” challenge has to surmount a relatively high bar. It is worth noting the Senior President’s Practice Direction, “Reasons for decisions”, dated 4 June 2024, which reminds the IAC that “adequate reasons for a substantive decision may often be short. In some cases a few succinct paragraphs will suffice… a challenge based on the adequacy of reasons should only succeed when the appellate body cannot understand the Tribunal’s thought process in making material findings.”

13. Unfortunately, it is not possible from paragraphs 28 and 29 to divine the FTJ’s reasoning on the evidence. It is not even clear if the FTJ accepted that the Appellant is a seriously ill person given that she is deemed to be someone whose “HIV is under control with a low viral load” (paragraph 28). In the alternative, the way in which the two paragraphs are expressed strongly indicates that the evidential issues (bespoke medication regime and first-line availability) were not considered at all and, had they been integrated into the analysis, they were are at the very least capable of establishing a prima facie “medical claim”, at which point the burden would have shifted to the Respondent, a stage which was never reached.

14. For the reasons given above, paragraphs 28 to 29 reveal a material error of law. Further, to the extent that paragraph 30 treats the Appellant’s evidence of mental ill-health as failing to establish a medical claim on a discrete basis, this constituted a misunderstanding of the Appellant’s case, which was that her mental health issues were relevant to evaluating whether she would have the resilience to access treatments, if available. I do not consider that she ever pleaded a medical claim on the basis of mental health alone.

Ground 4: Article 8 ECHR

15. Ms Radford submitted, consistent with the grounds of appeal, that the FTJ had failed to conduct a proportionality assessment at all and/or had plainly not considered the medical evidence and country expert report of Dr Nelson Oppong [CB: 443] nor evaluated whether there were “very significant obstacles to integration” and/or whether removal would be unduly harsh in all the circumstances.

16. Mr Ojo argued that paragraph 31 of the determination must, impliedly, constitute the assessment of Article 8. It contains a finding that the Appellant would be returning to Ghana with the support of her family and there was no obligation on the FTJ to adopt any particular form or formula in evaluating proportionality.

17. I am concerned by paragraph 31. It is worth reproducing in full. It is the only paragraph in the determination that could even possibly purport to stand as the resolution of Article 8 ECHR. It reads as follows:

“The Appellant has provided no evidence of a death certificate for her mother or evidence that her father has left her or has passed away. Taking into account that I have found the Appellant not to be credible I am not prepared to accept any part of her evidence on face value. In these circumstances I do not find that the Appellant will be returning a lone woman in Ghana. I find as I do not accept that the Appellant will be returning to Ghana as a lone woman but that she will have the support of her family she does not fall withing [sic] a Particular Social Group. I thus find that I dismiss the Appellant’s Asylum and Human Rights Appeals.”

18. I entirely accept that I must focus on substance and not on form. It was not necessary for the FTJ to have stated “Article 8”, provided a sub-heading or otherwise signposted what paragraph 31 represented, albeit one or all of these things would have been helpful.

19. In focusing on substance, I conclude that – if I am being generous and inferring that paragraph 31 is the consideration of Article 8 ECHR – it is wholly inadequate in failing to consider at all (i) the evidence of the Appellant’s mental health as contained in multiple reports, in particular that of Dr Isaacs [CB: 474]; (ii) the evidence of the Appellant’s ongoing physical vulnerabilities and challenges posed by HIV (especially/even if these did not amount to an Article 3 claim); (iii) the country expert report on social and other barriers faced by HIV patients in Ghana; and (iv) applying the strands of evidence (both for and against) to the relevant tests of “very significant obstacles to integration” and “unduly harsh”, including consideration of s.117B Nationality Immigration and Asylum Act 2002. (i), (ii) and (iii) were not rendered irrelevant by the FTJ’s adverse credibility findings on the protection claim, since they stood as discrete strands of objective (and, in part, accepted) evidence on other matters. The finding of fact that the Appellant would have “family support” could not rationally be determinative on its own of proportionality.

20. I find that Ground 4 is made out.

Ground 1: the assessment of credibility

21. However, I dismiss Ground 1. The various arguments made constitute a disagreement with the conclusions the FTJ has reached after hearing oral evidence.

22. Having regard to Volpi & Anor v Volpi [2022] EWCA Civ 464 [at 2], a Court or Tribunal considering error of law should be circumspect in interfering with primary fact-finding conducted below:

i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.
vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.

23. In my view, the FTJ has - at paragraphs 17 to 27 - provided adequate and explicable reasons for why he has disbelieved the Appellant’s account of conversion, he has rationally applied Section 8 of the Asylum and Immigration (Treatment of Claimants, etc. ) Act 2004 and, at paragraph 17, he has had regard to the medical evidence in so far as it was capable of “affect[ing] the weight to be given to certain evidence”.

Disposal

24. I invited, on a provisional basis, submissions from the representatives on whether the appeal should be retained in the Upper Tribunal or remitted to the First-tier Tribunal.

25. Ms Radford’s position was that, in the event of errors setting aside all of the determination, the appeal should be remitted to the FTT; if the errors were more limited, then the appeal might be retained. Mr Ojo submitted that appeal could be retained with preserved findings.

26. I have had regard to Section 7 of the “Senior President’s Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal” (SPT Ryder, 11 June 2018), Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC), AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Majera v Secretary of State for the Home Department [2025] EWCA Civ 1597 [at 60].

27. Retaining the case in the Upper Tribunal is the norm but I do consider it appropriate in the particular circumstances of this appeal that the appeal be remitted back to the FTT, with preserved findings, for i) reconsideration of Article 3 ECHR and ii) evaluation of Article 8 ECHR.

Notice of Decision

The decision of the First-tier Tribunal, which dismissed the appeal, is set aside and the appeal is remitted to the First-tier Tribunal (IAC), with the findings of FTJ Zahed at paragraphs 17 to 27 (relating to asylum) preserved. The remitted appeal, therefore, is to consider the Article 3 ECHR “medical claim” and Article 8 ECHR, according to law.

Taimour Lay

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

9 June 2026