Secretary of State for the Home Department v OSB

The Secretary of State for the Home Department (“SSHD”) appeals from the decision of the Upper Tribunal (“UT”) promulgated on 20 January 2025. By that decision, the UT dismissed the Secretary of State’s appeal from the First-tier Tribunal (“FTT”). The FTT had allowed OSB’s appeal from the Secretary of State’s decision to refuse his protection and human rights claims and to deport him from the United Kingdom as a foreign criminal.

OSB is a citizen of Nigeria and was born in January 1986. He arrived in the United Kingdom on 10 February 2000 on a forged passport. He made an application for indefinite leave to remain on 23 November 2003. The Secretary of State refused that application on 4 June 2007 and his appeal from that decision was dismissed on 27 November 2007. His appeal rights were exhausted on 3 January 2008 but he continued to remain in the country unlawfully and committed serious crimes.

OSB’s first victim was a 16-year-old girl. He grabbed and dragged her into an alleyway in the early hours of the morning on 29 March 2009. He pushed her to the floor, forced her trousers and underwear down and then forced her legs open, while simultaneously pulling down his own trousers. His victim felt his penis against her vagina. A witness intervened resulting in his escape from the scene. He grabbed his second victim from behind, as she was walking along the road, in the early hours of the morning on 31 March 2009. As he was pulling her along the road, she managed to smash a bottle she was carrying resulting in an injury to his hand. He nevertheless attempted to pull her jogging bottoms down and was pulling them away from her thighs when a passer-by shouted out and he escaped the scene. He grabbed his third victim 20 minutes later as she was walking along the road. He lifted her off her feet and dragged her into an alleyway. She struggled, screamed and managed to escape. He was ultimately traced by CCTV and was arrested.

OSB was convicted of three counts of attempted rape and of kidnapping with the intention to commit a relevant sexual offence on 8 September 2009 at the Southwark Crown Court. He was sentenced to an indefinite hospital order under section 41 of the Mental Health Act 1983 due to his diagnosis of paranoid schizophrenia. The sentencing judge observed that his offending was “a terrifying affair” for his victims and he would have been considered for a life sentence in all likelihood if there were no mental health issues. The Secretary of State issued a notice of liability to deportation to OSB on 22 June 2015. He responded by making a human rights claim.

The Secretary of State refused his human rights claim and made a decision to deport him from the United Kingdom on 3 November 2015. His appeal from that decision to the FTT was dismissed by Judge Rozanski on 6 July 2016. His appeal rights were exhausted on 16 December 2016. A deportation order was signed on 2 February 2017.

OSB then made a series of unsuccessful applications, submissions, and claims seeking revocation of the deportation order on protection and human rights grounds. Ultimately, on 7 September 2021, the Secretary of State issued another decision refusing his protection and human rights claim and maintaining the deportation order with a further right of appeal. The long and dismal history of the case from 2000 to the end of 2020 was set out in paragraphs 3 to 35 of the letter containing that decision and is appended to the end of this judgment.

He appealed to the FTT against the decision of 7 September 2021. That appeal was dismissed on 10 October 2022 by FTTJ David Morgan, but on a further appeal to the Upper Tribunal that decision was set aside by UTJ McWilliam on 19 July 2023 and the case remitted to the FTT for re-hearing.

An internal review was held by the Home Office. The Respondent continued to rely on the four reasons for refusal letter of 7 September 2021. Paragraphs 10 and 11 of the Review Document should be quoted:-

“10.

R maintains that the A’s removal to Nigeria has no impact on his rights under Article 3. The deportation has no effect on whether the A can access his treatment or medication for the reasons outlined above. R maintains that A’s risk of relapse does not breach his Article 3 rights. The medical evidence states that A is not “in agreement with our medical opinion and recommendation that ongoing treatment with anti-psychotic medication is required to manage his mental illness.” R submits that A’s voluntary refusal of taking his medication is the reason for his relapse and this risk of non-compliance with oral medication is apparent in Nigeria and the UK. Such risks can only be mitigated if A undertakes to maintain his ongoing treatment; the country where A lives is irrelevant to the risk of relapse. R maintains A is at risk of relapse in any country. Indeed, the A has relapsed on three occasions in the UK, despite being on medication on two of those occasions and receiving care from his family members in the UK. Furthermore, A has no suicidal ideations and does not pose a risk to himself when he relapses.

11.

For these reasons, it is maintained that the A does not meet the high threshold outlined in AM Zimbabwe.”

The FTT (Judge Loke) reheard OSB’s appeal on 6 June 2024 and issued a Determination on 21 June 2024. The judge said:-

“18.

My starting point is to look at the findings of the previous Tribunal decision; Devaseelan [2002] UKIAT 2002. This was a decision by Judge Rozanski following a decision by the Respondent dated 13 October 2015 refusing the Appellant’s human rights claim. Relevantly the judge found:

a)

That the Appellant’s mother … would provide the Appellant with financial support in Nigeria if he were deported. Alternatively she could relocate with the Appellant and could find work as a nurse in Nigeria;

b)

That the Appellant has family members in Lagos, Nigeria, and that there is psychiatric treatment available. The judge found the Appellant would be able to access treatment and medication for his illness in Nigeria;

c)

Provided the Appellant maintained his treatment he would be able to live independently in Nigeria;

d)

The Appellant is at no greater risk of becoming non-compliant with his medication in Nigeria than in the United Kingdom;

e)

The judge found that the Appellant did not meet the high threshold as set by Article 3;

f)

The judge found that deportation did interfere with the Appellant’s Article 8 right to family life and private life, however found that this interference was proportionate.”

The judge first considered whether OSB (described in her judgment as “the Appellant”, as he was before the FTT) was excluded from the protection of the Refugee Convention by section 72 of the Nationality, Immigration and Asylum Act 2002, which provides by subsection (5A) a rebuttable presumption that a person convicted of a particularly serious crime and sentenced to at least 12 months imprisonment is presumed to constitute a danger to the community of the United Kingdom unless the presumption is rebutted. She held that he continued to constitute a danger to the community and that the statutory presumption had not been rebutted. The issue of exclusion from the Refugee Convention was not in issue before us, but certain findings of the judge should be noted:-

“26.

The Appellant was diagnosed with paranoid schizophrenia in 2006. In 2009 he was sentenced for the index offences to an indefinite hospital order. On 16 September 2009 the Appellant was transferred to a medium secure unit. In June 2014 he was transferred to a low secure unit. He was conditionally discharged in 2018. The Appellant relapsed in 2023 and was recalled to hospital on 6 September of that year after an incident where he produced knife towards a fellow resident in his supported accommodation.

27.

On 19 October 2023 the Mental Health Tribunal considered it appropriate that he remain in hospital due to the risk to others due to his previous non-compliance with his medication. The Appellant is still detained in hospital and is an in-patient, although he enjoys escorted community leave twice weekly on account of his improvements. I am informed by his representative that he may be liable for release in or around January 2025.

28.

I have the Mental Health Tribunal decision …which decided that the Appellant should be detained under section 37 of the Mental Health Act 1983 and subject to a Restriction Order under section 41. … The fact is, the Appellant remains detained due to the fact the Mental Health Tribunal concluded that this was necessary due to the risk that he will commit further offences and for the protection of the public from serious harm.”

29.

I further note para 6b. of that decision where the tribunal accepted the unchallenged evidence that the nature of the disorder is that of chronic relapsing and remitting mental illness, with relapses following non-compliance with medication. It is clear that the only reason the Appellant no longer presents a current risk is because of the intervention of the authorities authorising his detention under the Mental Health Act 1983. The Appellant himself remains a risk to the public of serious harm.

30.

I accept that the Appellant appears to be doing well and improving while in detention. I accept that his risk of relapse has significantly decreased given he is now allowed in the community on a supervised basis. I also accept that he may be released entirely into the community in the recent future which indicates that the risk of relapse can be minimised. However, even if the risk of relapse is diminished, the risk of harm occasioned by any relapse is a high one.

31.

I am satisfied that the Appellant continues to constitute a danger to the community, he has not rebutted the statutory presumption and is precluded from the protections of the Refugee Convention.”

The judge then turned to Article 3. She said at [32]:-

“32.

It is submitted on behalf of the Appellant that were he returned to Nigeria he would face a real risk of treatment contrary to Article 3. As already indicated the Respondent has conceded that the Appellant is a seriously ill person on account of his mental health. The relevant test remains that set out in AM (Zimbabwe) [2020] UKSC 17. The Appellant must show on the lower standard that there are substantial grounds to fear that there is a real risk on account of the absence of appropriate treatment in Nigeria or lack of access to such treatment that he will be exposed to a serious, rapid and irreversible decline in his state of health or a significant reduction in life expectancy.” [emphasis added]

The judge had extensive material before her including a report from Dr Ogunwale dated 20 May 2024 (updating a previous report of 14 December 2021). The core points made in the report may be summarised as follows:

“(1)

OSB’s non-compliance with medication was a direct symptom of his diagnosis (paranoid schizophrenia).

(2)

Removal would constitute a significant level of psychosocial stress.

(3)

All of his medications are available, at a cost, in Nigeria but community rehabilitation was not.

(4)

There are no secure psychiatric hospitals in Nigeria. If he were to relapse and reoffend, he is likely to be imprisoned for a significant period.

(5)

If he were to relapse that may result in ‘a serious and rapid decline in both his mental and physical health and potentially result in intense suffering or increased risk of mortality as well as heightened risk of harm to himself and others.”

The judge held that OSB himself, with the assistance of his family, would have the finances to afford the monthly cost of the treatment.

At [40-41] she said:-

“40.

At [31] of Dr Ogunwale’s report at SB1/10 he states that removal to Nigeria would constitute a level of psychosocial stress. Dr Ogunwale states that [his] social network in Nigeria may be quite weak and this together with the psychosocial stress could trigger relapse. However, the previous Tribunal found that the Appellant did have a social network in Nigeria, and would continue to receive support from his family in the United Kingdom who could also relocate or visit him. The Appellant’s mother gave evidence that she had visited Nigeria in recent years.

41.

At [47] of Dr Ogunwale’s report he reaffirms his view that the Appellant’s lack of access to care and the liminal level of social support can cause a real risk of relapse which may result in a serious and rapid decline in both his mental and physical health and potentially result in intense suffering or increased risk to mortality. Again, this view is on the basis that the Appellant will not be able to access medication and will have a limited social network. I have found that the Appellant will be able to access medication and there is nothing to go behind the previous Tribunal’s view that the Appellant will in fact have a social support network upon return to Nigeria.”

She continued:-

“45.

The reports indicate that the Appellant is in detention because of his risk of non-compliance with medication, which appears to be an intrinsic feature of his paranoid schizophrenia. He is in the least restrictive ward at present and is making progress, however at this current time, the fact he remains sectioned indicates there is a real risk that he will relapse if released into the community.

46.

The previous Tribunal found that the risk of relapse in Nigeria is the same as in the United Kingdom, and I respectfully agree. … Before me it is submitted that the risk of relapse would lead to the Appellant being detained in an institution where he would not receive the treatment he requires. Significantly, the previous Tribunal in 2016 was not asked to consider the situation the Appellant would be in were he to relapse and be detained as a result.”

47.

Looking at the reasons why the Appellant remains sectioned, it seems to be that at this current time there is a real risk of relapse on account of failing to comply with medication. This is notwithstanding the fact he may have a social support network and access to medication. It is plain from the report of Dr Hart at AB/43 that he does not have the capacity to consent to admission and treatment. At AB/44 Dr Hart states there is a high risk of noncompliance with medication upon discharge. This is reflected in the decision by the Mental Health Tribunal when concluding that the Appellant should remain detained. This may change, and with further treatment and a release into the community the Appellant’s chance of relapse may be minimised, however at this current time the Appellant remains in detention due to the fact there is a real risk of relapse. Obviously Dr Hart’s report and the decision of the Mental Health Tribunal were not before the Tribunal in 2016.

48.

I turn to the potential consequences for the Appellant in Nigeria were he to relapse. At [30-32] of Dr Ogunwale’s original report at AB2/39 dated 14 December 2021 he states that the Appellant is unlikely to be compulsorily detained merely because he has suffered a relapse, but only if he were to constitute a danger to himself or others. It is an inescapable conclusion that the Appellant is currently detained because he meets the criteria in section 41 of the Mental Health Act, and poses a risk of reoffending such as to cause the public serious harm. It follows that there are substantial grounds to fear that the Appellant will relapse and this will lead to further reoffending, that would present a danger to himself or others.

49.

If the Appellant is compulsorily detained as a result, I look at the objective evidence regarding the treatment he is likely to receive. However, there do appear to be state run mental health facilities where patients are detained. …

…

50… In my assessment, the evidence is insufficient to indicate that the Appellant would face treatment contrary to Article 3 were he detained in a state run mental healthcare facility.

…

52.

Were the Appellant to require admission into a mental healthcare facility, while there are avenues for him to access voluntary admission it is clear from Dr Hart’s report that he does not currently have capacity to consent to admission or treatment. It would be open to his family to place him in a government mental health care facility. … I am satisfied that were the Appellant to relapse, his family could afford his involuntary admission to a mental healthcare facility.

53.

It is submitted on behalf of the Appellant that there are reasonable grounds to believe that were the Appellant arrested for an offence as a result of relapse, he would more likely be detained in prison rather than a state run mental healthcare facility. Ogunwale opines at SB1/12 at [38] that were the Appellant to reoffend he is more likely to be imprisoned for a significant period. However, as already indicated this is at odds with his previous report at AB2/40 at [32] which states that he may be compulsorily detained for treatment if he were to constitute a danger to himself or others. I also note that the Mental Health Act 2021 at s28 enables a medical officer, law enforcement officer or appropriate government agent to make an application for involuntary admission to a mental healthcare facility. However, this would require an application to be made, supported by two independent qualified medical practitioners. During this time, if an application were made, the Appellant would probably be in prison.

54.

It was submitted that in prison the Appellant would be denied medical care and face conditions amounting to treatment contrary to Article 3. Were the Appellant to be detained in a prison there is evidence to indicate that he would not have access to medical treatment.”

[The judge then cited a US State Department Report 2024 regarding prison conditions in Nigeria and continued:-]

While in prison the Appellant is unlikely to be provided with medication. The objective evidence does state that prisons would transfer seriously ill prisoners to government hospitals. However, this is qualified in the report with respect of the mentally ill. Looking at the objective evidence as a whole and the evidence regarding the lack of awareness of mental health in the Nigerian community generally, I find that the Appellant would very likely remain in prison for a considerable period, even if he was ultimately transferred to a mental healthcare facility.”

The last three paragraphs of the FTT decision need to be cited in full:-

“55.

I turn to whether being detained in a prison this would lead to a serious, rapid and irreversible decline in his state of health or a significant reduction in life expectancy. The Respondent has already accepted that he is a seriously ill person. I also have regard to the report of Dr Babalola at RB/165 dated 10 April 2019 which states at [126] and [140] that a lack of treatment would bring about a breakdown in his mental condition. This is supported by the later medical reports by Dr Hart and Dr Ogunwale. Significantly, the submissions made to me on behalf of the Respondent were on the basis that there was a low risk of relapse. I have found for the reasons already given that this is not the case. Upon review of the reports and the medical notes, it follows that were the Appellant not to receive medication, his delusions and condition would significantly worsen and there are serious grounds to believe that this would amount to a serious, rapid and irreversible decline in his mental health. This is exemplified in the seriousness of the offences committed when he relapses, a situation all the medical experts agree is not the case when he is on his medication.

56.

This has not been an easy case to consider. In summary my findings are:

a)

If the Appellant were to return to Nigeria, while there may be social stigma regarding mental health patients, he will have a family network who can practically, emotionally and financially assist him.

b)

The Appellant will be able to afford the medication that is available in Lagos. Treatment is available although it may well be to a standard which is below that he is currently receiving.

c)

There is however a high risk of relapse, which is supported ultimately by the fact the Appellant is currently sectioned on that account.

d)

Were the Appellant to relapse in Nigeria he is unlikely to voluntarily consent to admission to a mental health care facility.

e)

It is open to the Appellant’s family to admit him to a mental health care facility in Nigeria.

f)

Were the Appellant to be admitted to a mental health care facility in Nigeria, he would not face chaining or shackling, or treatment contrary to Article 3.

g)

There is a risk that upon relapse the Appellant will commit further serious offences. Again, this is supported by the fact he is currently sectioned on that account.

h)

Were the Appellant to commit further offences in the context of a relapse in Nigeria, there are reasonable grounds to believe he would spend time in prison.

i)

Were the Appellant to be imprisoned, the objective evidence indicates he would face harsh conditions and would not have access to his medication.

j)

If the Appellant did not have access to his medication, I am satisfied that this would lead to a serious, rapid and irreversible decline in his state of health such that would meet the test in AM (Zimbabwe).

57.

Were the risk of relapse minimised by the successful conclusion of a treatment plan and the Appellant released into the community, I would have been satisfied that the Appellant could be safely returned to Nigeria where he would have a support network and access to medication. However, on account of him being currently sectioned under s41, at this present time there are substantial grounds to fear he would relapse and commit further offences causing significant harm to the public. Were this to occur in Nigeria, even if the Appellant were to be ultimately transferred to a mental health facility, it is reasonably likely that he would spend a period of time in a Nigerian prison where he would be unable to access his medication and suffer treatment contrary to Article 3. It is on this basis I allow this appeal. It is unnecessary for me to go to consider Article 8.”

With permission granted by UTJ Owens, the SSHD appealed to the Upper Tribunal. The Notice of Appeal included the following:-

“The Judge of the First-tier Tribunal has made a material error of law in the Determination. ...

1.

Failing to give reasons or any adequate reasons for findings on material matters

a)

It is respectfully submitted that the FTTJ has not approached the appellant’s return to Nigeria by considering all relevant facts correctly and as such their findings and overall decision to allow the appeal is both inadequately reasoned and materially flawed.

b)

The FTTJ has envisioned a scenario where the appellant is returned and able to live independently until he inevitably re-offends, which will result in him being imprisoned and experiencing ill-treatment contrary to his Article 3 rights before his mental health issues are identified. This itself is highly speculative and it is submitted not reasonably likely to occur due to the fact that the appellant’s family and the Nigerian state would seek to have him institutionalised as soon as he is returned.

...

d)

Even if the appellant was not placed into institutional care upon arrival immediately, the FTTJ has failed to appreciate that he would be returning to family who can assist with his medication and treatment, as they had found [37]. There is also no reason his UK-based family cannot return with him to assist with his reintegration. ...

e)

The SSHD reminds the Tribunal that it is only in truly exceptional cases where an individual, let alone one facing deportation, can succeed on Article 3 medical grounds, which it is submitted does not apply in the current case due to the medication and treatment being available in Nigeria along with support from both the state and family, as such that the decision cannot stand.

Upper Tribunal Judge Khan dismissed the appeal. His judgment stated:

“29.

In pulling the threads together, it is important to recall that the sole ground of appeal is that the judge failed to give reasons or any adequate reasons for findings on material matters. The ground is not made out. It is unarguable that the judge gave legally sustainable reasons for the permissible findings reached based on the evidence before her. The respondent has failed to demonstrate any error of law, let alone any material error of law in the judge’s decision-making. In this regard, the judge clearly applied anxious scrutiny as seen by her comment at [56] that it was not an easy case to consider. Her decision is detailed, balanced and carefully reasoned.

30.

In this regard, the decision of Ullah is pertinent here. At paragraph 26 the Court of Appeal observed that the First Tier Tribunal is a specialist fact-finding tribunal and therefore the UT should not rush to find an error of law. The court further noted that “it is the nature of assessment that different tribunals, without illegality or rationality may reach different conclusions on the same case.” In the current context, the appeal grounds amount to nothing more than mere disagreement with the judge’s conclusions.

31.

For the reasons given above, the appeal fails. I conclude that the First-tier tribunal decision did not involve the making of any material errors of law and therefore there is no basis to disturb the conclusions.”

The SSHD applied to this court for permission to appeal. A single ground of appeal was submitted, together with a skeleton argument in support, each drafted by Mr Malik. The ground of appeal was that:-

“The First-tier Tribunal, contrary to the Upper Tribunal’s conclusion, adopted a flawed approach to Article 3 and arrived at an inadequately reasoned and impermissibly speculative decision. Accordingly, the Upper Tribunal erred in law in upholding the First-tier Tribunal’s decision.”

The skeleton argument contended first that the second appeals test applied, and that the important point of principle raised was “the nature and extent of foresighted assessment required in Article 3 claims based on ill health”. The document went on to refer to the decision of the Supreme Court in AM (Zimbabwe) and that of the Strasbourg court in Paposhvili v Belgium and noted that the FTT, in identifying that the test to be applied was that set out in AM (Zimbabwe),omitted the need for the Appellant relying on Article 3 to show that there is a real risk that the serious, rapid and irreversible decline in his state of health to which he will be exposed will result in intense suffering.

The skeleton argument went on to make a second criticism of the FTT judgment, which is that the findings at paragraph 56 (g) to (j) were impermissibly speculative for the purpose of the test in AM (Zimbabwe).

By order dated 12 August 2025, Lewis LJ granted permission to appeal, both on the basis that the ground of appeal has a realistic prospect of success and that the question of how a breach of Article 3 is to be assessed in such a case raises an important point of principle or practice.

It cannot be said that the appeal from the FTT to the UT was satisfactorily pleaded. There was no reference to what Mr Malik KC says is a clear error of law by the FTT in apparently overlooking, or at least not expressly referring to, the requirement in a case of this kind of a real risk of intense suffering. Moreover, describing the sole ground of complaint as being that the FTT judge gave inadequate reasons for her decision is ambiguous. This was not a case of the English v Emery Reimbold type where the losing party can reasonably say “I do not understand why I lost”. Rather it is a case where the losing party (the SSHD) is alleging that the reasons given in the FTT decision allowing OSB’s appeal were legally unsound. The more significant objection is that the “intense suffering” point was not raised, although the notice of appeal did at least remind the UT that it should take a truly exceptional case for any individual, let alone one facing deportation, to resist removal on Article 3 medical grounds.

So far as the grounds of appeal from the UT to this court are concerned, it has often been said that they should be concise and specific. The pleaded ground of appeal (unusually) is too compressed, but the accompanying skeleton argument makes it clear that there are two separate but cumulative grounds of complaint about the judgment of the FTT, the first being the “intense suffering” point and the second what is described as “impermissible speculation” but which, as will be seen later in this judgment, I regard as a causation argument.

In R (Talpada) v SSHD [2018] EWCA Civ 841, Singh LJ said:-

“67.

I turn finally to the question of procedural rigour in public law litigation. In my view, it cannot be emphasised enough that public law litigation must be conducted with an appropriate degree of procedural rigour. I recognise that public law litigation cannot necessarily be regarded in the same way as ordinary civil litigation between private parties. This is because it is not only the private interests of the parties which are involved. There is clearly an important public interest which must not be overlooked or undermined. In particular procedure must not become the master of substance where, for example, an abuse of power needs to be corrected by the court. However, both fairness and the orderly management of litigation require that there must be an appropriate degree of formality and predictability in the conduct of public law litigation as in other forms of civil litigation.

68.

In the context of an appeal such as this it is important that the grounds of appeal should be clearly and succinctly set out. It is also important that only those grounds of appeal for which permission has been granted by this Court are then pursued at an appeal. The Courts frequently observe, as did appear to happen in the present case, that grounds of challenge have a habit of "evolving" during the course of proceedings, for example when a final skeleton argument comes to be drafted. This will in practice be many months after the formal close of pleadings and after evidence has been filed.

69.

These unfortunate trends must be resisted and should be discouraged by the courts, using whatever powers they have to impose procedural rigour in public law proceedings. Courts should be prepared to take robust decisions and not permit grounds to be advanced if they have not been properly pleaded or where permission has not been granted to raise them. Otherwise there is a risk that there will be unfairness, not only to the other party to the case, but potentially to the wider public interest, which is an important facet of public law litigation.”

In Lata (FTT principal controversial issues) [2023] UK UT 163 (IAT) the Upper Tribunal said:-

“31.

The Secretary of State's ground of appeal evidences a misconception that it is sufficient for a party to be silent upon, or not make an express concession as to, an issue for a burden to then be placed upon a judge to consider all potential issues that may favourably arise, even if not expressly relied upon. In simple terms, this amounts to a judge being required to search for and consider an 'obvious' point, though not so obvious that it was raised by a party at the hearing. The reformed appeal process that now operates in the FtT has been established to ensure that a judge is not required to trawl through the papers in an appeal to identify what issues are to be addressed. The task of the judge is to deal with the issues that the parties have identified. It is trite that the hearing before the FtT is not a lap in the warm-up for a subsequent appeal in which the party's case can be differently articulated. Parties are expected to advance their cases to their best advantage, permitting a judge to decide between two competing sets of submissions that identify the full extent of the parties' positions.

...

34.

We consider that there exists a duty upon the parties to identify relevant issues of their own motion. There is no place for hiding a jewel of a submission in the hope that it will purchase favour on appeal. A party that fails to identify an issue before the FtT that it subsequently asserts to have been essential for a judge to consider is unlikely to have a good ground of appeal before UTIAC. None of this is to say that a FtT judge is to entirely lack curiosity in relation to an aspect of a case that the judge requires further assistance with or which the judge considers should be examined as part of the evaluation of the case. Where, as here, a point has not been identified by the parties, and nor is it one which has independently drawn the attention of the judge, it is not an issue which can be appropriately raised for the first time in the context of an appeal to UTIAC.

This has been approved by this court, most recently in AL v SSHD [2026] EWCA Civ 370. The rules apply whether the Appellant is the individual litigating against the Home Secretary or the Home Secretary herself.

However, this is not a case where either party was seeking to raise in the FTT – the court of trial which hears evidence – issues of which it had not given proper notice to the other. The complaint of the SSHD is that the FTT judge made two significant errors of law. The grounds of appeal to the UT were unfocused and omitted the “intense suffering” point: but the grounds of appeal and skeleton argument submitted together to this court make the position clear, and it is of course the reasoning of the FTT rather than the UT which is under scrutiny. Insofar as the “intense suffering” point is new in the sense that it was not raised before the UT, we should have regard to the observations of Haddon-Cave LJ in Singh v Dass [2019] EWCA Civ 360 at [15]-[18]:-

“15.

The following legal principles apply where a party seeks to raise a new point on appeal which was not raised below.

16.

First, an appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court.

17.

Second, an appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial (Mullarkey v Broad [2009] EWCA Civ 2 at [30] and [49]).

18.

Third, even where the point might be considered a 'pure point of law', the appellate court will only allow it to be raised if three criteria are satisfied: (a) the other party has had adequate time to deal with the point; (b) the other party has not acted to his detriment on the faith of the earlier omission to raise it; and (c) the other party can be adequately protected in costs. (R (on the application of Humphreys) v Parking and Traffic Appeals Service [2017] EWCA Civ 24; [2017] RTR 22 at [29]).”

Applying these principles to the present case: it is not open to the SSHD to go behind the FTT judge’s findings of primary fact, for example by arguing that OSB's family would inevitably have him hospitalised almost immediately on arrival. But the SSHD should be permitted to argue that, even on the basis of the FTT judge’s findings of primary fact, the Article 3 test was not satisfied. AM (Zimbabwe) was clearly raised before the FTT. The SSHD was not to know that the FTT judge would cite it inaccurately. OSB has not acted to his detriment on the faith of the omission to raise the point before the UT and his experienced legal advisors have had adequate time to deal with the point. I therefore turn to consider the SSHD’s appeal on its merits. I will take the two points in what seems to me to be the logical order: (a) impermissible speculation/causation; (b) intense suffering.

Mr Malik argues that the FTT judge engaged in impermissible speculation as to what the consequences would be if OSB were to be removed to Nigeria. The sequence of events of which there is said to be a real risk is as follows:

This is in my view impermissibly speculative or, as I would prefer to put it, there are too many links in the chain of causation. Moreover, it is not a sequence of events for which the UK can sensibly be held responsible. The consequences which are said to breach Article 3 are too remote.

It is instructive to compare the present case with Aswat v United Kingdom (2014) 58 EHRR 1, on which Mr Dunlop relied. The applicant had been indicted in the USA in relation to conspiracy to establish a jihad training camp. He suffered from paranoid schizophrenia and was transferred to Broadmoor Hospital. The FTT found that he had limited insight into his illness. Evidence was adduced that if he was returned to prison (from Broadmoor) compliance with his medication would be uncertain and would lead to a relapse. Nevertheless an order was made for his extradition to the USA, where he was likely to be held in a maximum security facility. The European Court of Human Rights said that the Applicant:

“... is facing not expulsion but extradition to a country where he has no ties, where he will be detained and where he will not have the support of family and friends. Therefore, in the light of the current medical evidence, the Court finds that there is a real risk that the applicant’s extradition to a different country and to a different, and potentially more hostile, prison environment would result in a significant deterioration in his mental and physical health and that such a deterioration would be capable of reaching the Article 3 threshold.” [emphasis added]

The court held that there would be a violation of Article 3 in the event of Mr Aswat’s extradition “solely on account of the current severity of his mental condition”.

The obvious difference between Aswat and the present case is that OSB is facing deportation, not extradition. The proposal is to remove him to Nigeria not to serve a prison sentence, nor to be remanded in custody awaiting trial, but to live in the community. In an extradition case there may be a bar to extradition where it can be shown that on arrival in prison in the receiving state, the applicant will be subjected to conditions which amount to inhuman or degrading treatment, either by reference to his medical condition or generally. But it would be a very substantial expansion of the reach of Article 3 for the courts to hold that, because on removal to a foreign state the applicant might commit further offences and then be incarcerated in unacceptable conditions, he should not be removed at all.

If the argument were valid, it is difficult to see why it should depend on the applicant having a serious or potentially serious mental health condition. It might be said that a persistent offender, (for example a sex offender, or even a career burglar), if removed to his country of nationality might well resume committing offences and be sent to prison; and that the prison conditions in his country of origin may well not satisfy the demands of the Strasbourg jurisprudence. But that cannot, as I see it, be a bar to removal.

In R (N) v SSHD (Terrence Higgins Trust intervening) [2005] UK HL 31; [2005] 2 AC 296 the House of Lords considered the test pursuant to Article 3 to resist removal by reference to ill-health, Baroness Hale of Richmond said that the test was “whether the applicant’s illness has reached such a critical stage (i.e. he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity”.

That remained the applicable test until Paposhvili v Belgium [2016] ECHR 1113. At [183] the Grand Chamber of the ECtHR said:-

“The Court considers that the ‘other very exceptional cases’ within the meaning of the judgment in N v The United Kingdom (para 43) which may raise an issue under article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, 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. The Court points out that these situations correspond to a high threshold for the application of article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness.”

In AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 [2021] AC 633 (“AM (Zimbabwe)”), the Supreme Court considered what modification needed to be made to the Article 3 test in order to comply with Paposhvili. The court held that, in order for an applicant to succeed on Article 3 ill-health grounds, they must provide evidence demonstrating that:

AM’scase then returned to the Upper Tribunal, whose decision is reported as AM (Article 3, health cases) Zimbabwe [2022] UKUT 131 (IAC). The UT reviewed AM (Zimbabwe), Paposhvili, and the Grand Chamber case of Savran and Denmark [2021] ECHR 1025. The UT gave the following guidance at [3]:

“… 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 …”

In his able argument for the Respondent Mr Dunlop KC reminded us of the well-established principle that tribunal judges in a specialist jurisdiction should be presumed to know the law in their field, and that a concise summary of AM (Zimbabwe) was all that the FTT judge needed to give. I cannot accept this submission. The ratio of AM (Zimbabwe) is that it is not enough to meet the Article 3 test that removal would lead to a serious, rapid and irreversible decline in the applicant’s health: it must be shown that this would result in intense suffering (or a significant reduction in life expectancy, which is not applicable in the present case). The FTT judgment under appeal not only does not refer to the critical phrase but does not set out any facts which would indicate that the judge had it in mind. In combination with the point about causation or impermissible speculation it means that the FTT’s conclusion is in my view legally unsustainable.

This is not a case where it is necessary to remit the case to the FTT or UT for further fact-finding. On the primary facts as found by the FTT the Respondent falls well short of satisfying the test for resisting deportation on Article 3 medical grounds. I would accordingly allow the Secretary of State’s appeal and set aside the decisions of the FTT and UT allowing the Respondent’s appeal against the deportation order. Nearly ten years after that order was made, it is high time that it was put into effect.

I agree.

I also agree.

The letter states:

“3.

You entered the UK on 10 February 2000 and applied for Indefinite Leave to Remain as the child or other dependent relative of a person present and settled in the United Kingdom on 23 November 2003. This was considered and refused with a right of appeal on 4 June 2007.

4.

An appeal, lodged on 15 June 2007, was dismissed by an Immigration Judge on 27 November 2007. An application for permission to appeal to the High Court was refused on 17 December 2007 and your appeal rights were exhausted on 3 January 2008.

5.

On 25 February 2008, a request for reconsideration of an application for Indefinite Leave to Remain in the UK on exceptional and compassionate grounds was refused on 21 April 2009.

6.

Removal Direction’s (RD’s) were set for 29 April 2009 to Nigeria but had to be cancelled as you were arrested for attempted rape in April 2009.

7.

You were convicted on 12 June 2009 and sentenced to an indefinite Hospital Order under the Mental Health Act.

8.

A liability to deportation notice was sent to you on 22 June 2015. On 25 August 2015, further representations were received. These were considered and it was decided that deportation action should be taken and, as a consequence, a Notice of Refusal of a Human Rights claim dated 3 November 2015 was sent to you,.

9.

The appeal against this decision was refused on 6 July 2016 and permission to appeal to the Upper Tier was refused on 27 October 2016.

10.

A deportation order was sent to you on 2 February 2017. On 20 February 2017 further representations were received requesting that the deportation order be revoked. The representations were considered and refused on 18 April 2017.

11.

A Judicial Review (JR) claim was received on 23 June 2017. This was refused on 22 December 2017. A renewed JR claim was received on 14 March 2018. This was refused on 22 June 2018.

12.

Further representations received on 3 April 2019, were refused on 4 April 2019. Further representations were received on 12 April 2019 and were refused on 16 April 2019. RD’s were set for 18 April 2019.

13.

RD’s set for 18 April 2019, had to be cancelled as your family prevented the escorts from taking you from your hostel. You claimed asylum on that date claiming you had no family in Nigeria.

14.

Further representations in relation to that claim were received on 22 July 2019 and 14 August 2019 respectively. The claim was treated as further representations, as the reasons were non-conventional and had already been considered by the courts. These were refused on 28 October 2019 with no right of appeal and you were put on fortnightly reporting restrictions.

15.

You were detained under immigration powers when you reported on 13 December 2019 as RD’s had been set for 19 December 2019. You lodged an asylum claim on 14 December 2019.

16.

The claim was treated as further representations, as the reasons you gave for your claim were non-conventional and had already been considered by the courts and the Home Office on several occasions. These were refused on 17 December 2019.

17.

A JR was lodged by your sister on your behalf on 20 January 2020 however the JR was dismissed by the Upper Tribunal as being ‘totally without merit’. In the meantime, RD’s set for 19 December 2019 had to be cancelled due to lack of resources.

18.

RD’s were reset for 23 December 2019 but these were deferred as you had not been given the statutory 72 hours’ notice of his impending removal.

19.

On 30 December 2019, you applied for bail; this was refused on 3 January 2020.

20.

On 31 December 2019, you applied for permission to appeal to the Court of Appeal; permission was refused on the same day.

21.

On 8 January 2020, you made a further application for bail, which was refused on 13 January 2020.

22.

Further representations were received on 31 January 2020. RD’s were set for 1 February 2020 but had to be deferred as your new solicitors were not sent notification of your removal directions.

23.

The further representations were considered and refused with no right of appeal on 4 February 2020.

24.

On 11 March 2020, you made an application for bail which was refused on 16 March 2020.

25.

RD’s were set for 14 March 2020 but had to be cancelled due to a lack of resources. RD’s were re-set on 17 March 2020 for 5 April 2020.

26.

As part of the SSHDs response to Covid-19 outbreak, you were highlighted as an individual that may be vulnerable in accordance with PHE guidance. Your case was reviewed on 24 March 2020 by a designated detention panel and a decision was made to maintain detention. On 27 March 2020, you refused shielding as an option and signed a disclaimer to this effect.

27.

RD’s set for 5 April 2020 were cancelled on 30 March 2020 due to the Nigerian authorities closing its airport to international travel on account of the Covid-19 pandemic.

28.

On 1 April 2020, a Pre-Action Protocol letter was received from Bindmans LLP on your behalf, requesting that, due to the Covid-19 pandemic, you should be released from detention under immigration powers as a matter of urgency, due to your underlying health issues. A response was sent to you on 3 April 2020 explaining that your continued detention had been reviewed and it had been decided that you should remain in detention in isolation due to your underlying health issues.

29.

RD’s were re-set on 3 April 2020 for removal on 25 May 2020.

30.

A JR application was received on 9 April 2020 challenging your continued detention.

31.

The court found that your detention was unlawful, and you were released on 30 April 2020 to supported housing.

32.

On 21 April 2020, Air France cancelled the flight scheduled for 25 May 2020 due to limited passengers booked on it.

33.

On 22 May 2020, Air France again cancelled the flight scheduled for 5 July 2020.

34.

A Pre-Action Protocol letter was received on 4 November 2020 challenging your continued reporting during the pandemic restrictions.

35.

On 9 November 2020 the court ordered your reporting to be suspended until further notice due to the Covid-19 pandemic restrictions.”