Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002667
First-tier Tribunal No:
HU/58996/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 14th of October 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

AVTAR KAILEY
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms F Shaw, Counsel, SMK Solicitors
For the Respondent: Ms S Simbi, Senior Home Office Presenting Officer

Heard remotely on 11 September 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, [the appellant] (and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) 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 (and/or other person). Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. The Appellant appeals against the decision of First-tier Tribunal Judge Aspinall dismissing his human rights appeal. The Appellant applied for permission to appeal which was granted by Upper Tribunal Judge Hoffman in the following terms:

“(1) I am satisfied that it is, at least, arguable that the judge impermissibly relied upon his own lay observations of the appellant’s partner at [23]. Permission is therefore granted in respect of Ground 2.

(2) I am less persuaded by the remaining grounds. In particular, Ground 1 appears to amount to little more than a disagreement with the judge’s findings, while Ground 3 raises an issue of apparently no material significance, given the little weight the judge attached to the section 8 consideration. Ground 4 similarly appears to be no more than a challenge to the weight the judge attributed to the factors bearing on the proportionality balance. Further, insofar as Ground 4 relies on Chikwamba, its relevance, following subsequent amendments to the NIAA 2002, is unarguably now confined to cases in which the sole reason advanced by the respondent for refusing leave to remain is that the applicant should depart the United Kingdom and seek entry clearance: see Alam v SSHD [2023] EWCA Civ 30.

(3) Notwithstanding the above, I have decided not to restrict the grant of permission. The appellant should, however, give careful consideration to how best to utilise the time allocated to him for the error of law hearing.”

2. The Respondent provided a Rule 24 response which I have taken into account in reaching my decision.

Findings

3. At the close of the hearing, I reserved my decision which I shall now give. I find that there are errors of law in the decision, such that it should be set aside. My reasons for so finding are as follows.

4. In relation to the first ground of appeal concerning the misapplication of EX.1(b) and EX.2 and inadequate engagement with Agyarko in the context of the Judge’s insurmountable obstacles assessment, the grounds accept that the Judge identified the correct threshold but argue that the findings at [35] to [39] do not demonstrate proper compliance with the approach to very serious difficulties entailing very significant hardship for the couple in continuing their family life in India. Therefore, it is useful to first consider what the Judge collectively finds at [35] and [39]. [35] finds that the Sponsor is of Indian origin, speaks the language and previously lived in India and that both parties have family there. [36] discusses the CPIN for India (published in 2023), covering medical and healthcare provision and which confirms that mental health services 'exist in India, both publicly and privately funded ones, but states that the quality and service, availability of services is variable and generally more limited than in the United Kingdom. It is also recorded that Ms Kaur’s access to mental health support would not replicate what she receives here but states that treatment would not be unavailable in any event. The Judge concludes that whilst relocation would involve some disruption to her current care, it would not deprive her of all access to treatment. The focus is thus wholly upon the availability of treatment in the destination country. There is passing reference then to the evidence of domestic abuse of the Sponsor in her previous marriage which ended in 2010 at [37], before [38] explores the Sponsor’s mental health difficulties which it is accepted could have been contributed to by the history of domestic abuse. The Judge finds that there is no current risk arising from the history of domestic abuse. Finally, at [39], the Judge finds that the historical abuse does not establish any present or future risk capable of constituting insurmountable obstacles to relocation nor does it add weight to the proportionality assessment beyond what the Judge already accepted in relation to the Sponsor’s mental health condition.

5. It is noteworthy that the allusion to the Judge's acceptance of the Sponsor’s mental health condition pertains to [27] which accepts that she suffers from mental health difficulties, namely depression and anxiety, as diagnosed in the psychiatric report of Dr Abbass. However, as specified between [27] to [34], the Judge did not accept that the level of dependency claimed by the Sponsor upon the Appellant was as significant as the psychiatric report opined. In short, the Judge found that the dependency was “real but limited”. I conveyed to the parties I had difficulty understanding the thrust of ground one which was poorly drafted, but which I understood to be, a complaint that in those paragraphs when it came time to consider insurmountable obstacles to the Sponsor relocating the Judge did not consider the factors he had previously accepted, namely that Ms Kaur had a depressive and anxiety disorder, is dependent on the Appellant to a real degree, is in receipt of PIP benefits, financially vulnerable, her care is currently organised and delivered in the UK under the NHS, and that removal would cause her “real stress and some deterioration of her condition”. The Appellant agreed with, and the Respondent did not challenge, that understanding.

6. The complaint in ground one, as I understood it, is therefore accurate as the paragraphs I referred to fail to make reference to the Sponsor’s receipt of NHS care and being financially vulnerable. The decision also fails to make reference to the Respondent’s guidance that was before the First-tier Tribunal, titled Family Life (as a partner or parent) and exceptional circumstances (which was in fact contained in the Appellant’s Bundle) which makes reference to the fact that an insurmountable obstacle can take two forms: one being a very significant difficulty which would be literally impossible to overcome; but the other being a very significant difficulty which would be faced by the applicant or their partner continuing life together outside the UK which could be overcome “but to do so would entail very serious hardship for one or both of them”.

7. With that in mind, the Judge’s focus on “availability” of treatment does answer the first form of an insurmountable obstacle in the guidance, but not the second. In addition, the complete failure to refer to the second form of an insurmountable obstacle, namely, very serious hardship – as opposed to a literal insurmountable obstacle – especially in the context of the accepted mental health condition, benefits and NHS treatment, demonstrates that the Judge has failed to comply with a lawful application of the insurmountable obstacles test under the Rules which, although to an elevated threshold, must in any event be performed on those dual interpretations, particularly as the latter, very serious hardship interpretation is weaker than the former, which the Judge appears to have solely focussed upon.

8. I am also exercised by the fact that the Appellant’s bundle, as Ms Shaw highlighted, also contained evidence that access to mental health care in India is not uniform and availability is limited to less than one psychiatrist for every 100,000 citizens, which poses challenges for both mental health professionals and those seeking help. This was directly taken from the CPIN which was in the Appellant’s bundle and the relevant paragraphs of which were highlighted for the Tribunal’s benefit but failed to find mention in the decision.

9. In making my findings, I am guided by the Judge’s use of language, such as the CPIN not establishing that treatment “would be unavailable” to the Sponsor and that, although relocation would involve “disruption to her current care arrangements”, it would not “deprive her of all access to treatment”. Needless to say, deprivation of treatment or all available care is more akin to a literal insurmountable obstacle, as opposed to a very serious hardship. However, I cannot see any consideration given by the Judge, expressly or holistically, to whether the hardship which he accepts the Sponsor will have to go through is not, in the same breath, able to meet the latter definition of a very serious hardship. As rehearsed above, a literal insurmountable obstacle is only the first definition under EX.1 that an applicant can meet, but the latter, less stringent form, is obviously something which the partner could at least arguably meet, but which not considered, from what I can see thus making the assessment incomplete and therefore unsafe.

10. Having found a material error of law via ground one, although not aired in the grounds, I also note the fact that the Judge appears to have inadvertently failed to consider the fact that as the Sponsor is in receipt of PIP and NHS treatment, if she is forced to permanently relocate to India she will be deprived of those benefits in order to continue her relationship with her husband. Those are obviously factors which should feature in the assessment of whether or not there is a very significant difficulty or very serious hardship, which is also absent from the Judge’s consideration. In addition, it is also not apparent to me that the Judge has considered whether or not the Sponsor, as a British citizen, is even entitled to receive mental health treatment in India unless paid for privately. If the Judge is finding that the Sponsor can fund that privately, it is not said how that would be feasible or affordable given that she is in receipt of PIP benefits, is unable to work and is not of substantial financial means according to his own findings.

11. Therefore, I find that ground one is made out and represents a material error of law in the Judge’s assessment of insurmountable obstacles under the Rules.

12. Turning to ground two concerning the psychiatric evidence and the inadequacy of reasons, it is highlighted that the Judge accepted the psychiatrist Dr Abbass’s diagnosis but discounted the more serious conclusions on the basis that they were largely self-reported by the Sponsor and went beyond the treatment history.

13. I am not unsympathetic to the Judge’s position on the self-reporting as there was unusually no in-person assessment (according to Ms Simbi’s submissions noting the contents of the report) by Dr Abbass and as his report is compiled based upon what he has been told by the Sponsor. Having said that, I note that whilst the Judge accepts the diagnosis and conclusions, he nonetheless places limited weight upon them due to the Sponsor self-reporting her symptoms to the Psychiatrist and that the diagnosis and conclusions go beyond the treatment history, without giving specific reasons. This is not a material error in and of itself.

14. The Judge also stresses that the Sponsor can function independently and has a degree of independent functioning. This finding seems tied to the Judge’s finding that the Sponsor’s dependency is real but limited and the Appellant’s role is of a supportive partner rather than an irreplaceable carer. As observed by Judge Hoffmann, there is concern that this unexplained conclusion is tied to the Judge’s lay observations of the Sponsor at the hearing. I also note that the Sponsor was not treated as a vulnerable witness and accorded a less stringent assessment in accordance with the judicial Equal Treatment Bench Book.

15. Overall, after some hesitation, I am just persuaded that there is an error in respect of ground two, given that the Judge relied upon his own lay observations of the Sponsor at [23], as noted in the grant of permission by Judge Hoffman. I accept the submission that the Judge was not properly placed to conduct an assessment of the Sponsor’s health by mere observations of her in the courtroom, which has had an impact upon the Judge’s finding of her independence, which adds to my concern that the Judge has focused more on discovering whether or not there was a literal insurmountable obstacle as opposed to a significant difficulty or very serious hardship, and supplying reasons for why the limited dependency and need for PIP as well as her mental health treatment was not sufficient to meet that latter threshold under the Rules.

16. I accept the point made by Ms Shaw that the Judge’s assessment is inconsistent with R, (AN) v Secretary of State for the Home Department [2012] EWCA Civ 521 [30], wherein Lord Justice Rix stated inter alia as follows:

“… If an independent expert's findings, expert opinion, and honest belief (no one suggested that her belief was other than honest) are to be refused the status of independent evidence because, as must inevitably happen, to some extent the expert starts with an account from her client and patient, then practically all meaning would be taken from the clearly important policy that, in the absence of very exceptional circumstances suggesting otherwise, independent evidence of torture makes the victim unsuitable for detention. That conclusion is a fortiori where the independent expert is applying the internationally recognised Istanbul Protocol designed for the reporting on and assessment of signs of torture. A requirement of "evidence" is not the same as a requirement of proof, conclusive or otherwise. Whether evidence amounts to proof, on any particular standard (and the burden and standard of proof in asylum cases are not high), is a matter of weight and assessment”.

17. Therefore, applying AM, albeit that whether or not the evidence given by the Sponsor to the psychiatrist amounted to proof was a matter of weight and assessment for the Judge (hence my earlier mentioned hesitation), I find that it was not open to the Judge to give limited weight to the evidence by dint of the Judge’s own subjective and personal lay assessment of the Appellant from the hearing as later observed in the decision. Therefore, ground two is also made out.

18. Turning to ground three, which raises the issue of section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, and the credibility of the evidence heard by the Judge, I turn to the content of the legislation before making my assessment. Section 8(1), headed “Claimant’s credibility”, reads as follows:

“In determining whether to believe a statement made by or on behalf of the person who makes an asylum claim or a human rights claim, a deciding authority shall take account, as damaging the claimant’s credibility, of any behaviour to which this section applies.”

19. As we know from section 8(2), the behaviour of the claimant pertains to that which is designed or likely to (a) conceal information, (b) mislead or (c) obstruct or delay the handling or resolution of the claim or the taking of the decision in relation to the claimant. Albeit the grounds relate more to the misapplication of section 8 in terms of the weight and importance given to it, which I accept is incorrect, as shall become clear, I see it as at least unusual, if not extraordinary, to see section 8 raised in the context of a human rights / Appendix FM / partner appeal, which is wholly unrelated to an asylum claimant who is not also raising human rights in the same breath. For decades, judges have been accustomed to seeing and deploying section 8 in the context of asylum appeals; however, this is the first occasion I can recall seeing this legislation deployed in a pure domestic, human rights appeal i.e. where there is no asylum claim at all.

20. Whilst the deciding authority referred to in section 8(1) includes under section 8(7) the First-tier Tribunal as well as the Secretary of State and thus permits the Tribunal to consider this matter on appeal, given that the section 8 adverse assessment was not raised by the Secretary of State in the first instance in her index decision, whilst it is permissible for the First-tier Tribunal to take into account any behaviour as damaging the claimant’s credibility, it is procedurally unfair for the First-tier Tribunal to fail to, at least, put the Appellant on notice that the Tribunal seeks to invoke this legislation against the Appellant so that the Appellant has an opportunity to address the issue so far as they are able to in line with TUI v. Griffiths .

21. Ms Simbi confirmed that the Presenting Officer’s note from the First-tier Tribunal did not show that the section 8 matter was raised by the Presenting Officer Therefore, given that it was not raised by the first instance deciding authority, it was as I say, hypothetically and technically open to the First-tier Tribunal to raise it of its own volition (even though this may appear at first blush to be approaching the bench entering the arena), but not without first putting the Appellant on notice and giving them a fair opportunity to respond and address the Tribunal’s concerns. This is a duty of procedural fairness that all public bodies, including the Tribunal, owe especially in its capacity as a deciding authority. Therefore, it appears that section 8 was unfairly deployed without the Appellant having the opportunity to first address it.

22. In any event, returning to the argument raised in the grounds once more, the assessment is also inapt as the use of section 8 in human rights appeals such as this one, and in particular where the reliance upon behaviour that falls foul of section 8 is said to be the act of overstaying, potentially double counts the weight to be given to the public interest in removing overstayers given that this is already apportioned for and accorded weight under the Secretary of State’s Immigration Rules, and also separately and secondarily under section 117B(1) of the 2002 Act in the weight to be given to the public interest in the removal of migrants who are present in the UK illegally and have, inter alia, overstayed their leave.

23. Therefore, for all the above reasons, ground three is also made out.

24. Turning finally to ground four, and the complaint that the Judge’s Article 8 proportionality assessment is flawed, I find that there is a clear error raised by this ground as it is apparent from paragraphs 41 through to 46 that the Judge has comprehensively considered the Secretary of State’s case and the factors going in favour of removal on one side of the balance; but in turning to the Appellant’s side of the scales at [47], the Judge has merely acknowledged that removal will “cause real distress and some deterioration in her (the Sponsor’s) condition” before finding that the weight of “that factor”, while real, is insufficient to outweigh the substantial public interest in maintaining immigration control.

25. It is trite that the Appellant’s, and his Sponsor’s, evidence or factors going in favour of the decision being disproportionate in its interference with their family life, went far beyond “that factor”, and it does appear that the majority of points going in the Appellant’s favour have been distilled to that solitary factor whereas there were a multitude of factors that should have been taken into consideration in assessing the Appellant’s side of the scales. These included, for example, factors such as the loss of the Appellant's rights as a British citizen, her access to PIP, her home and life, as well as the NHS treatment she was so clearly reliant upon, as well as the potential separation from her husband which the First-tier Tribunal Judge has seemingly failed to consider in his findings, having only considered the “go” scenario as opposed to also considering the “stay” scenario. Thus, I find this represents a material error of law in relation to the Article 8 assessment.

26. Separately, it is also of concern that the Judge has failed to consider insurmountable obstacles afresh outside the rules applying under Article 8 simpliciter in accordance with Agyarko which stipulates that insurmountable obstacles are only one mere criterion of equal weight to all others outside the Rules under Article 8 ECHR.

27. Having found a material error under ground four, I do not address the Chikwamba point which I find has far less merit (due to the manner in which it has been framed by the representatives).

28. In light of the above findings, I find that the decision contains material errors of law such that it should be set aside.

Notice of Decision

The appeal to the Upper Tribunal is allowed.

The appeal is to be remitted to be heard by any Judge of the First-tier Tribunal other than Judge Aspinall.

Judge Saini

Judge of the Upper Tribunal
Immigration and Asylum Chamber

8 October 2026