Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002631
First-tier Tribunal No: PA/62364/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 8th of September 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE GRAVES

Between

SH
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Litigant in Person
For the Respondent: Mr Simpson, Senior Home Office Presenting Officer

Heard at Field House on Monday 24 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

BACKGROUND

1. The appellant appeals against the decision of a judge of the First-tier Tribunal (“the judge”) promulgated on 4 March 2026 dismissing his appeal against the respondent’s decision dated 13 November 2023, in which the appellant’s protection and human rights claims were refused.

2. The appellant is a national of Bangladesh. He pursued a protection claim on political grounds, and also argued his removal would be in breach of Articles 3 and 8 ECHR, on grounds of physical and mental health conditions and his private life here. The judge dismissed the appellant’s appeal on all grounds.

3. The appellant applied for permission to appeal against the decision on four grounds, but since permission was only granted in relation to the fourth ground relating to the Article 3 appeal, I have only set out the appellant’s grounds in respect of that appeal below:

“Ground 4 – Failure to Properly Engage with the Medical Evidence

12. The FTJ correctly refers to the principles set out in AM (Zimbabwe) at para 23 of the determination. Indeed the FTJ at para 87 accepted that the Appellant suffers from a serious medical condition as he states that “I find that the appellant has established a prima facie case of serious illness due to his diagnosis of Crohn’s disease and colitis.” It is respectfully submitted that it then becomes the Respondent's responsibility to burden to establish if suitable treatment is available in the receiving state once such a prima facie case is established. However, the FTJ dismissed the claim stating the Appellant had not provided enough proof of the availability of treatment.

13. At para 90 the FTJ stated that The appellant has provided no evidence or any analysis of what other treatment or support may be available…”. However, this reasoning effectively reverses the evidential burden identified in AM (Zimbabwe) and therefore constitutes a material misdirection in law.

14. Indeed, the FTJ failed to give adequate weight to the expert medical evidence as at para 91 it states that “I place little weight on the views provided by Dr K… about treatment availability in Bangladesh.” The Appellant argues that the FTJ did not adequately explain why the medical expert’s opinion should be rejected.

15. The FTJ at para 95 the FTJ states that “Treatment is not restricted to biological treatments…”. It appears that the FTJ proceeded to make its own observations regarding alternative treatment options. In doing so the FTJ erred in arguably substituting its own medical opinion for that of the expert evidence.”

4. Permission to appeal was refused on all grounds save for the fourth ground on 20 May 2026. The judge commented in relation to the other grounds that there were no “arguable material errors of law”, that the judge had correctly applied the standard of proof, and gave clear and detailed reasons for findings about the evidence.

5. In relation to the fourth ground, permission was given with the following comments:

“However, with respect to Ground 4 (the failure to properly engage with medical evidence), which relates to the Article 3 (medical) appeal, I do consider there to be an arguable material error of law. It seems arguable that the judge has conflated the test under AM (Zimbabwe) and/or failed to shift the burden to the Respondent. In terms of the procedural requirements of Article 3, the Appellant must establish a prima facie case of potential infringement of Article 3. It is expected that an Appellant will adduce evidence about his medical condition, current treatment (including the likely suitability of any other treatment) and the effect on him of inability to access it. However, the returning state is better able to collect evidence about the availability and accessibility of suitable treatment in the receiving state and it is therefore for the Respondent to prove availability and accessibility of treatment on return to Bangladesh. The judge has arguably required the Appellant to prove availability and accessibility of suitable treatment, rather than the Respondent.

Permission to appeal is granted on ground 4, and refused on all other grounds”

6. The appeal comes before me to decide whether there is an error of law. If I determine that the decision does contain an error of law, I then need to decide whether to set aside the decision in consequence. If I set the decision aside, I must then either re-make the decision or remit the appeal to the First-tier Tribunal to do so.

7. I had before me a bundle from the appellant, but also had regard to the bundles on the HMCTS portal that were before the First-tier Tribunal, which included the medical evidence, grounds of appeal and the original decision. Mr Simpson was working from the same documents from the HMCTS portal because he had not received a full bundle.

8. At hearing I went through the appellant’s grounds with him and gave him the opportunity to make any further arguments. He said in addition to what was said in his grounds that ultimately he did not actually know the cost and availability of treatment in Bangladesh, as he was not an expert and could not afford to get reports on this. However, his treatment in the UK included monthly biologic injections and other medication, which was very costly, so he thought it would be as expensive or more expensive in Bangladesh, so he would not be able to afford it.

9. Mr Simpson said in response that there was no error of law in the judge’s decision. The judge was entitled to place less weight on the opinion of the medical doctor about treatment availability in Bangladesh, when the doctor did not have any expertise in that field. Further, the judge was not stepping outside of their role to comment on treatment for those with the appellant’s conditions. The line in the decision about other types of treatment, was taken from the appellant’s own ASA, which in turn quoted NHS information provided by the appellant about types of available treatment.

10. Mr Simpson said that the judge correctly set out the law and relevant authority, which provides that the initial burden of proof fell upon the appellant in relation to establishing a two stage prima facie case, and only once that threshold test was met, did the burden of proof shift to the respondent. He submitted that the judge gave clear reasons for finding that the appellant had not met the first stage of the prima facie test in respect of his mental health problems of establishing he was a ‘seriously ill person’. Given that, the judge did not need to go on to consider whether the respondent had provided evidence to dispel concerns arising from the appellant’s own availability of treatment.

11. As to the appellant’s physical health problem, Mr Simpson submitted that while the judge accepted this met the definition of the first stage of the prima facie case test, the appellant had not met the second stage of that test of establishing substantial grounds for believing he would face a real risk of Article 3 treatment. The burden was on the appellant, not on the respondent. Even had the evidence met those first two stages of the relevant test, the respondent had in any event submitted evidence to establish that treatment was available, and to dispel any serious doubts raised, and the judge had made clear findings about the report submitted by the respondent which established there was treatment for the appellant’s bowel condition in Bangladesh. The grounds did not hold up to scrutiny and no actual error of law was identified in them.

DISCUSSION

12. I must find firstly that the judge entirely appropriately directed themselves at paragraphs 23 and 61 both as to the legal tests to be applied, set out below:

“23. In Article 3 health cases two questions in relation to the initial threshold test emerge from the authorities of AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 and Savran v Denmark (application no. 57467/15):

“(1) Has the appellant discharged the burden of establishing that he or she is a seriously ill person?

(2) Has the appellant adduced evidence capable of demonstrating that substantial grounds have been shown for believing that as a seriously ill person, he 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 state of health resulting in intense suffering, or
[b] to a significant reduction in life expectancy?

If the appellant fails to establish this prima facie case, then the appeal falls to be dismissed on this ground without more.

(3) If the appellant establishes a prima facie case, has the respondent dispelled any serious doubts raised, or obtained assurances from Bangladesh as to available and accessible treatment on return.”

13. The judge then went on to consider in some detail, the relevant medical and other evidence, both that submitted by the appellant, but also in relation to availability of treatment in Bangladesh for the appellant’s conditions. As to the appellant’s mental health, the judge accepted the evidence of UK health professionals established he had anxiety and depression, but found the prognosis was not such that it met the legal test at (1) above, of bringing the appellant within the definition of ‘seriously ill person’ and as such, meant the claim could not succeed on mental health grounds. That was in part due to the uncertainty of the appellant’s immigration status being a major factor influencing his mental health, which the judge found might then stabilise on return. However, the judge also went on to consider the evidence in relation to (2), but found in any event the evidence did not establish there was an absence of appropriate treatment in Bangladesh. The judge also had regard to the evidence from the respondent in respect of stage (3), finding that also addressed any doubts and that the appellant ‘could access this treatment on return’ [at 83]. The appellant’s appeal in respect of his mental health condition therefore did not satisfy the first two stages of the legal test, in which the burden of proof was upon the appellant, and found the respondent had provided evidence to address any concerns in relation to stages (2) and (3).

14. As to the criticisms of the judge’s treatment of the report of Dr K, in my view the judge did give adequate reasons for attaching little to no weight to that report. These were that Dr K was a GP and not a mental health professional with sufficient expertise in the assessment of PTSD [at 77]. Further that in the assessment of risk of deterioration in mental health on return, the appellant had assured Dr K he would not harm himself [at 76]. That the assessment report was heavily reliant on self reported symptoms dating from May 2024 onwards [at 80]. Further, that with respect to the opinion given by Dr K on the availability of mental health treatment in Bangladesh, detailed at 12.4 and 12.5 of the report, Dr K did not list any expertise or specific country knowledge that would inform their assessment about available treatment. I note the findings of the report about treatment availability in Bangladesh are based on ‘internet searches’ done by Dr K. The judge criticised the lack of references for those searches, which were not being available for the judge or the respondent to view. I note too that the report does not appear to engage with the evidence relied on by the respondent, which was provided, which included the respondent’s CPIN which specifically addressed access to and availability of medical treatment in Bangladesh. At 91, the judge found Dr K’s conclusions about the availability of treatment in Bangladesh to be ‘speculative, non-specific and inconclusive’. I find the judge’s findings and treatment of weight to be attached to the report were open to them on the evidence and the reasons given for those findings were both detailed and adequate.

15. As to the appellant’s physical health conditions, while the judge accepted that the appellant suffered with Chrohn’s, the impact of which the judge also accepted did bring him within the first stage test of being a ‘seriously ill person’, the judge went on to find that the evidence did not show an absence of treatment for that condition and so stage (2) was not met. The judge found in relation to the biologics the appellant was currently prescribed for his condition [at 70] that the appellant’s case was ultimately that he asserted at hearing that ‘it is unclear whether these medications are consistently available within the public healthcare system in Bangladesh’ and therefore that the appellant’s case was that the cost under the private healthcare system, if he had to access this, would be prohibitively expensive. The judge considered the appellant’s assertions were not supported by evidence. The evidence relied upon in relation to the availability of healthcare, treatment required and impact of return submitted by the appellant, amounted to two medical reports on his conditions and symptoms, one of which was several years old, the other was the report from Dr K, addressed above as attracting little to no weight. The judge found the appellant [at 90] relied on assertions only about the availability of adequate treatment and healthcare, but he had “provided no evidence of any analysis” of treatment and support availability, alternative options or the effectiveness of those options and impact of this upon his health, which fell within the second stage of the threshold test he was required to meet.

16. The judge found [at 92 to 94] that the respondent had provided evidence about the availability of healthcare, which included a European Union Agency for Asylum (EUAA) report from May 2024, which stated there was a network of healthcare resources at local and district level for gastroenterological conditions, which included a specialist unit in Dhaka, separate from the private healthcare system, and commented also on the availability of private care and treatment, and the lack of barriers to healthcare treatment. The judge went on to find [at 95 to 96] that the appellant had “provided little if any evidence that an inability to obtain effective treatment would have on his health”, which was particularly important as the NHS evidence he had provided about types of treatment for his condition, specifically stated that treatment was not restricted to biologics and there were other types of treatment.

17. While the grounds assert the judge wrongly required the appellant to meet the burden of proof when it fell upon the respondent, the judge found clearly that the appellant’s evidence fell short of establishing a potential breach of Article 3, or ‘prima facie case’ and so the burden was on the appellant at that stage of the judge’s analysis, in relation to (2)[i] and (2)[ii] above. The judge found the appellant had not addressed the evidence from the respondent about the availability, accessibility and affordability of treatment. The judge also found the appellant had failed to establish what impact a cessation or change in treatment would have upon his condition and therefore that (2) of the threshold test was not met.

18. The judge also went on to comment that the appellant’s own ASA asserts different potential treatment options for his condition, and that he had failed to establish that he could not access the treatment he needed, and further, that if he could not access that treatment and instead must seek alternative treatment, what the impact that would have. On that basis the evidence was not sufficient to establish the prima facie case the appellant must show, and so in accordance with the test set out above, the appeal fell to be dismissed on this ground ‘without more’.

19. In relation to (3), although the judge was not required to go on to address this final stage of the test, given they had found the appellant had not discharged the initial burden upon them, Mr Simpson also took me through the evidence and report submitted by the respondent from the EUAA, considered in detail by the judge at paragraphs 92 to 94, which sets out available treatment and facilities in Bangladesh for those suffering with bowel conditions such as the appellant, which he argued would have dispelled any doubts arising in relation to the third part of the relevant test.

CONCLUSION

20. For the reasons set out above, I find the judge’s findings were open to them, and were supported by adequate reasons, with a detailed assessment of the evidence and relevant caselaw and legal authorities, and as such the decision contains no errors of law.

21. The appeal therefore falls to be dismissed.

NOTICE OF DECISION
The appeal is dismissed.

H Graves
Deputy Upper Tribunal Judge Graves
Judge of the Upper Tribunal
Immigration and Asylum Chamber

4 September 2026