Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002534
First-tier Tribunal No: PA/66718/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

14th October 2026

Before

UPPER TRIBUNAL JUDGE O’BRIEN

Between

ZM
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Sharma of Counsel, instructed by Zyba Law
For the Respondent: Ms K Khan, Senior Home Office Presenting Officer

Heard at Field House on 14 August 2026

Order Regarding Anonymity

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

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. The appellant appeals against a decision of the First-tier Tribunal (FtT) dated 14 February 2026 dismissing his appeal against the respondent's decision dated 5 June 2024 to refuse his protection and human rights claim.

2. The appellant claimed a fear of persecution because of his political beliefs. It was also the appellant’s case that he would suffer Article 3 mistreatment on return for medical reasons. The appellant relied, amongst other things, on evidence from a Bangladesh advocate Mr Islam, and a retired Bangladesh judge, Mr Al-Amin, in support of his political beliefs case and from Dr Persaud in respect of his medical case.

3. In her review dated 1 December 2025, the respondent raised a number of criticisms of Dr Persaud’s report. The appellant’s application dated 13 December 2026 for a 3-week adjournment to obtain a supplementary report from Dr Persaud addressing those criticisms was refused by the FtT at the hearing on 16 December 2026.

4. The grounds of appeal, permission for all of which was given by the Upper Tribunal on 9 June 2026, can be briefly summarised thus. The FtT unfairly refused the adjournment application. The FtT applied ‘circular reasoning’ to Mr Islam’s evidence. The FtT erred in its approach to the expert evidence of Mr Al-Amin. The FtT made a material mistake of fact regarding Dr Persaud’s report. The FtT inadequately engaged with the appellant’s vulnerability. The FtT erred in its approach to Article 3. The FtT’s Article 8 analysis was deficient.

5. The representatives each made oral submissions supplementing their respective statements of case. Whilst I refer below only to such matters as necessary to understand my decision, I took those submissions, and the materials to which they referred, into account in their entirety.

6. The parties agreed that the appeal turned on the first three grounds, the remainder being expressed as ‘consequential’. Furthermore, they agreed that success on the first ground (fairness) would require the FtT’s decision to be set aside and the matter being remitted for a de novo hearing.

Ground 1

7. The FtT’s consideration of the appellant’s adjournment application is set out at [7]-[16]. At [8], the FtT rehearsed the written application, which summarised the respondent’s criticisms, stated that a rebuttal report had been instructed and indicated confirmation from Dr Persaud that he would require 2 weeks to provide the report. It was submitted to be essential to a fair hearing that Dr Persaud be permitted to respond to the respondent’s ‘technical challenges’. The FtT set out those challenges at [9], but found at [10] that the fundamental criticism was ‘a suggested disparity between the presentation of mental health issues in the medical records and the findings of Dr Persaud following his meeting with the Appellant.’

8. The FtT continued:

‘11. As I indicated to Mr Rahman, I am unable to find where in Dr Persaud’s report he deals with the GP records, what they contain or the disparity of presentation. The nearest that Dr Persaud appears to come to addressing this issue is at SB [84] where Dr Persaud speculates that:

“I am very concerned about his suicidality as expressed today. He has made two very serious suicide attempts in the form of trying to hang himself, but these are not documented in his medical records because perhaps of language difficulties. These two very serious attempts clearly elevate his suicide risk.”

12. As I indicated to Mr Rahman, this may well have been an appropriate juncture at which Dr Persaud should have considered feigning rather than speculating about language problems. Nowhere in the report does Dr Persaud consider feigning.

13. In the guidance of HA (expert evidence; mental health) Sri Lanka [2022] UKUT 00111 (IAC), the Presidential panel found that,

(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.

14. As such, I find it plain that Dr Persaud’s failure to substantively deal with the disparity of presentation in the GP records, in circumstances where the purpose of the report was to resist removal, demonstrates a failure of Dr Persaud to comply with his professional obligations as an expert witness.

15. As I found at the hearing, the application to adjourn was therefore little more than an attempt to correct Dr Persaud’s failure to comply with his professional duties to this court. As such, I found that the Appellant’s application’s characterisation of the issues raised in the Review as “technical challenges” fundamentally flawed.

16. In exercising my case management jurisdiction under PR 4, I bore in mind the overriding objective under PR 2 and the requirement that cases be dealt with fairly and justly. The question for me to decide is not whether an adjournment is reasonable, but whether the affected party would be deprived of a fair hearing (Nwaigwe [2014] UKUT 00418). In so doing I had regard to the delay and costs implicit in any adjournment and that the overriding objective requires “so far as practicable, that the parties are able to participate fully in the proceedings”. However, I do not accept that the Appellant will suffer any unfairness by refusing to adjourn so that he can obtain a second report to address Dr Persaud’s professional obligations.’

9. The appellant’s case is that the FtT’s reason for refusing the adjournment, that the application was an attempt ‘to correct Dr Persaud’s failure to comply with his professional duties’, demonstrated that the yardstick applied was fault rather than fairness. The respondent’s position in a nutshell was that the appellant had submitted in his bundle the evidence he believed would prove his case; it was not appropriate to use the review as a prompt to perfect evidence identified as plainly deficient. More importantly, it had not been unfair of the FtT to refuse the appellant that opportunity. Mr Sharma in reply noted that the Senior President of Tribunals’ Practice Direction on 1 November 2024 specifically provided for the possibility of post-review evidence being relied upon.

10. Both parties agree that the following procedural chronology is relevant. Dr Persaud’s report is dated 12 November 2025; however, it was emailed to the appellant’s representatives on 11 November 2025 at 3:29 pm. The appellant provided his ASA and bundle on 19 November 2025. The respondent provided her review on Monday 1 December 2025. On Saturday 13 December 2025 at 9:53 am, Dr Persaud confirmed that he could provide an addendum report within 2 weeks. The appellant made her application for a 3-week adjournment at 8:35 pm that day. The hearing took place on Tuesday 16 December 2025.

11. The respondent criticises the appellant’s representatives for not having appreciated for themselves the deficiencies noted in her review and thus not having sought an adjournment on receipt of Dr Persaud’s report. However, the report was in their possession for only one week before being uploaded. Moreover, the FtT’s principal reason for finding that Dr Persaud failed in his professional duties to the Tribunal (its treatment of the GP records) is not so stark on the face of his report that it was unreasonable for the representatives to fail to appreciate the need for a rebuttal report until the point was taken in the review.

12. First, the passage in Dr Persaud’s report quoted by the FtT does remark on a disparity between what he was told by the appellant (two suicide attempts) and what is recorded in the GP records. Second, the GP records are so scant that it would not be unreasonable for the representative to have formed the view that not much more needed to be said about them.

13. As for the time taken to make the application after receipt of the review, as I observed at the hearing, the appellant’s representatives could hardly expect to make a successful adjournment application until they were in a position to state first that one would make any difference (ie that the report they sought could be obtained) and second how long an adjournment was being sought. They were only in possession of that information on the morning of 13 December 2025.

14. Whether or not it was open to the FtT to form the view that Dr Persaud’s report disclosed a failure to comply with his professional obligations to the Tribunal, the question was not whether it was appropriate to permit him to correct any such failure but rather whether it was fair to deny the appellant the opportunity to adduce evidence to rebut the points taken in the respondent’s review. It is clear from [14] and the concluding sentence of [16] that the FtT allowed considerations of the former to influence its conclusions on the latter, inappropriately in my judgment.

15. Furthermore, the FtT does not explain at [16] how the delay and costs involved in an adjournment properly informed whether refusal would be fair. That is particularly the case where the delay sought was only 3 weeks (with nothing recorded regarding how quickly the matter could be relisted) and no representations appear to have been made regarding the cost to the respondent of aborting the hearing.

16. I readily accept that many of the criticisms raised by the respondent of Dr Persaud’s report are well made. The FtT clearly held that they were fatal to the reliability of the report. It remains to be seen whether Dr Persaud can adequately address those criticisms in an addendum report. The question, however, is whether it was unfair to the appellant to deny that opportunity. Given the chronology, the lack of any unreasonable treatment of the report by the appellant’s representatives and the absence of any fault on behalf of the appellant himself, I find that it was.

17. Given my finding that refusal of an adjournment deprived the appellant of a fair hearing, it is unnecessary for me to consider any of the further grounds of appeal. The only appropriate disposal is to set aside the decision of the FtT and to remit the appeal with no findings preserved. It will be for the FtT to give appropriate directions for rehearing of the appeal.

Notice of Decision

1. The decision of the First-tier Tribunal involved the making of an error on a point of law and is set aside.
2. The appeal is remitted to the First-tier Tribunal to be heard by another judge with no findings preserved.

Sean O’Brien

Judge of the Upper Tribunal
Immigration and Asylum Chamber

14 October 2026