United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-003316
	First-tier Tribunal No: PA/00743/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 22 April 2025

 

Before

 

UPPER TRIBUNAL JUDGE PINDER

 

Between

 

F K

(ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr R Ahmed, of Counsel, instructed by Elizabeth Rose Solicitors.

For the Respondent: Mr Terrell, Senior Presenting Officer.

 

Heard at Field House on 3 April 2025

 

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. This is the re-making of the decision in the Appellant's appeal. This follows the setting aside of the decision, for the making of material error(s) of law, of First-tier Tribunal Judge Suffield-Thompson, who had allowed the Appellant's appeal on Humanitarian Protection grounds. My earlier decision setting aside Judge Suffield-Thompson's decision is appended to this decision as a separate annex.
2. I have maintained the Anonymity Order in favour of the Appellant. I consider that, on the specific facts of this appeal, the maintenance of the integrity of the United Kingdom's immigration system and the Appellant's vulnerabilities as a result of his medical condition are such that an Anonymity Order is a justified derogation from the principle of open justice.
3. Although it was the Respondent Secretary of State, who initially appealed against Judge Suffield-Thompson's decision, for ease of reference, I have listed and have referred to the parties as they appeared below. For the avoidance of doubt, this also applies to the Anonymity Order provided for above, which is in favour of the Appellant FK.

Background

4. The Appellant is a Rwandan citizen, who entered the UK in 2010. He initially claimed to be a citizen of the Democratic Republic of Congo ('DRC'), but his nationality was disputed by the Respondent and Judge Suffield-Thompson, as well as previous judges of the FtT, found that the Appellant is in fact a Rwandan national.
5. Following an unsuccessful asylum claim and appeal finalised in 2012, the Appellant has made a number of unsuccessful fresh claims. The most recent fresh claim, submitted in November 2023, was refused by the Respondent on 9 ^th January 2024. As part of this fresh claim, the Appellant submitted that returning him to the DRC (the country of his claimed nationality) would be in breach of Articles 2, 3 and 8 ECHR on the grounds that he would be at risk as a result of his ethnicity and of his ill-health - the Appellant is HIV-positive.
6. As mentioned above, Judge Suffield-Thompson allowed the Appellant's appeal, on the basis that returning him to Rwanda would be in breach of his rights under Article 3 ECHR. She did not accept the Appellant's protection claim fearing a return to the DRC. Following the Respondent Secretary of State's appeal, the Article 3 finding was set aside for the making of a material error of law - the Judge had erred in her consideration that the onus was on the Respondent to provide evidence that Rwanda has the medication that the Appellant needs and that he will have access to that medication. This was in answer to the second question that needs to be considered following the leading authorities of AM (Zimbabwe) [2020] UKSC 17; [2021] AC 633 and AM (Art 3; health cases) Zimbabwe [2022] UKUT 131, interpreting and applying Paposhvili v. Belgium [2016] ECHR 1113; [2017] Imm AR 867. There was further no indication that the Judge had considered whether the Appellant had adduced evidence that was capable of demonstrating substantial grounds for believing that a seriously ill person 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.
7. Further details of the factual and procedural history in this matter are fully recorded in the my error of law decision (appended to this decision) and I do not rehearse this here.

The appeal hearing in the Upper Tribunal

8. Following the setting aside of Judge Suffield-Thompson's decision, this appeal was listed before me for re-making on 3 ^rd April 2025. The sole issue that remains to be determined is whether the Appellant has adduced evidence capable of demonstrating that substantial grounds have been shown for believing that as a seriously ill person, he or she 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 or her state of health resulting in intense suffering, or

(b) to a significant reduction in life expectancy.

9. In respect of the Appellant's health, Judge Suffield-Thompson had accepted that the Appellant is a seriously ill person with a diagnosis of HIV ([49]-[53]) and this was not a finding that was challenged by the Respondent in her appeal against the FtT's decision. When issuing my decision on the error of law pursued by the Respondent, I preserved this finding together with those set out at [26]-[53] and [63]-[65] of the FtT decision. These other findings can be summarised as follows:

(a)    The Appellant had not provided any new evidence with regards to his claimed nationality (of the DRC) that would lead the FtT to go behind the findings of the previous Judges ([30]-[45]);

(b)   It was found that the Appellant is not from the DRC and that it is more likely than not that he is from Rwanda ([45]);

(c)    On this basis, the FtT dismissed the Appellant's protection claim fearing a return to the DRC (46]);

(d)   The Appellant has established a private life in the UK, including voluntary work, close friends and fellow church members, who also provide him with much support and support from the Thames Valley Positive support team following his diagnosis ([63]);

(e)    The Appellant has received a conditional offer at Plymouth University with the financial support of the Sanctuary Scholarship Programme, showing that the Appellant is keen to study and would hopefully be able to do some work in the future ([64]);

(f)     The Appellant speaks English and he has integrated here with his private life as summarised above. The FtT accepted that he would carry on being a productive member of UK society as much as his health will allow ([65]);

(g)   The Appellant has, and will continue to access treatment and NHS funds, and at some point is likely to access disability benefits ([65]);

(h)   The Appellant does not have any convictions ([65]).

10. The Appellant filed and served a supplementary skeleton argument and a supplementary bundle containing a copy of the Respondent's CPIN on 'Rwanda: Medical and healthcare', published in May 2024, as well as a factsheet published by the Joint United Nations Programme on HUV/AIDS ('UNAIDS' ) 'Rwanda: HIV and AIDS country factsheet 2022', published on 8 ^th August 2023 and an article by UNAIDS 'Impact of US funding cuts on HIV programmes in Rwanda', published on 18 ^th March 2025.
11. Both parties' advocates were able to agree that the re-making of the appeal could proceed on submissions only. I raised with Mr Ahmed that the skeleton argument settled by his instructing solicitors attempted to re-litigate the issue of the Appellant's nationality and protection claim (see paras 6-28). Mr Ahmed confirmed that those sections were to be disregarded as he accepted that he did not have permission to pursue these issues nor was he seeking this at the hearing.
12. I heard both parties' oral submissions and at the end of the hearing, I reserved my decision. I do not propose to rehearse the submissions heard, but will consider and address these as part of my analysis set out below. I also confirm that I have considered the Appellant's skeleton argument (save for the paragraphs referred to above at para 11) and the Appellant's supplementary appeal bundle comprising of 65 pages. I have also considered the consolidated bundle that was prepared by the Respondent for the error of law hearing in these proceedings.

Analysis and conclusions

The Appellant's Article 3 ECHR/health claim

13. Mr Ahmed emphasised in submissions that the Appellant's lengthy absence from Rwanda is key to the assessment of whether the required medical treatment would be available and/or accessible to him in Rwanda. The Appellant continued to maintain that he was not a Rwandan citizen but nevertheless, it was submitted that the Appellant had not been in Rwanda since 2010, when he first came to the UK. Importantly, Mr Ahmed acknowledged that it was difficult for the Appellant to argue that no medication or care would be available to him based on the information contained in the Respondent's CPIN. I consider that this was an entirely realistic submission to make.
14. The following information of note is provided in the CPIN:

(i)      The Ministry of Health's (MoH) annual report for 2021/22, published in June 2023, stated that 93.3% of the population had health insurance cover. However, statistics from the 2022 Population and Housing Census indicated that 97% of the population had medical insurance (see para 4.1.1);

(ii) There are different types of health insurance schemes - the one covering 86.9% of the population is the Community Based Health Insurance. This is described as follows by a Think Global Health article in May 2023 (see para 4.2.1):

 

'Rwanda's community-based health insurance (CBHI) programs, known as Mutuelles de Santé, enable citizens to pool funds with donations from foreign charities, the Rwandan government, and international organizations such as the Global Fund to Fight AIDS, Tuberculosis, and Malaria to collectively cover the expenses of health care. Members contribute 1,000 Rwandan francs ([US]$2) [£1.61] per family member.

'This program has evolved over the years. Copayments for outpatient visits of even [US]$0.36 [£0.29] proved unaffordable for many, so in 2011, the Mutuelles began fully subsidizing premiums and copayments for 1.5 million of the country's poorest residents.'

 

An article published in October 2023 in the peer-reviewed journal PLOS Global Public Health, described the out-of-pocket costs of CBHI (see para 4.2.7):

 

'Rwanda follows a universal healthcare model, providing health insurance through the Mutuelles de Santé program. Members pay less than a dollar to visit health centers or 10 percent of the total bill at all districts and referral hospitals, including the cost of prescribed medication from the National List of Essential Medicines. The cost of health insurance is determined by the poverty level categories assigned to the individuals. These categories range from A to E and reflect different levels of house income. Categories A and B comprise households that are self-reliant, while C and D indicate partial dependency on social protective schemes. Category E encompasses individuals who benefit from full state social protection and are not expected to transition out of this level.'

 

(iii) Chronic illnesses such as HIV and tuberculosis are listed as being covered by Community Health Workers (with 45,516 such workers) at village-level in a table provided at para 5.3.3 detailing the number of each type of public health facility and the associated services. Relevant treatment and care are also provided at province, district, sector and cell level.

15. The onus is on the Appellant to first demonstrate that there are substantial grounds for believing that he, as a seriously ill person, would face an absence of appropriate treatment in Rwanda or a lack of access to such treatment. In light of the above, I do not consider that he has demonstrated this. The Appellant has not sought to rely on any other expert evidence either.
16. There is also considerable force in Mr Terrell's submissions that the statistical data contained in the UNAIDS factsheet also supports the Respondent's contention that there is adequate health-care coverage and treatment available to the Appellant in Rwanda on return. I summarise the relevant data (from 2022) as follows [56-58]:

(i) There were 230,000 adults aged over 15 living with HIV in Rwanda;

(ii) 220,000 persons living with HIV were on antiretroviral therapy ('ART');

(iii) 91% of men aged 15 and over were receiving ART;

(iv) The percent change in new HIV infections since 2010 was -73.

17.   The submission that the Appellant would not have access to the care that is otherwise available because he has been absent from Rwanda for the last 15 years is not supported in any of the evidence submitted. Similarly, for the submission that the Appellant will have to pay for treatment. As I have summarised above, the CBHI programmes provide that the cost of health insurance is determined by a person's or a household's income and includes coverage for those who benefit from full state social protection, i.e. those who do not have an income. CBHI programmes form part of the country's universal healthcare model. If there is a contribution involved, I consider in light of the background information disclosed and considered above that this is likely to be small and one that the Appellant is likely to be able to meet.

18.   I also consider that the UNAIDS article focusing on the impact of US funding cuts on HIV programmes in Rwanda does not support a finding that the healthcare that the Appellant needs will no longer be available on his return as a result of these funding cuts. The article (dated 18 ^th March 2025) states that:

"All facilities/service points providing antiretroviral therapy (ART) are operating at full capacity. (...)

Stocks of antiretroviral (ARV) supplies, viral load (VL) test kits, and other lab test kits are available with minimal distribution disruptions. No stockouts are expected in the next 3-6 months. The country has a sufficient stock of condoms for the next 12 months.(...)

UNAIDS is supporting the government to assess the overall cost, priority and impact of the stopped interventions to inform actions. UNAIDS is reaching out separately to community networks and NGOs to collect more information about the impact of the US Government cuts."

19.   Mr Ahmed also submitted that the inability of the Appellant to find suitable accommodation and employment on return to Rwanda will compound his access to the required medical treatment. The Appellant has asserted through Mr Ahmed's submissions that he will not be able to support himself on return but he does not adduce any evidence to this effect. The Appellant's witness statement (prepared for the FtT appeal hearing) does not address his circumstances on return to Rwanda as the Appellant maintained that he was from the DRC. There is no evidence from him as to his likely circumstances on return to Rwanda. As already addressed, the onus remains on the Appellant.

20.   Mr Ahmed also addressed me on what is reasonably likely to happen to the Appellant in the absence of his medical treatment. As addressed above, the Appellant is a seriously ill person and this is not contentious. However, it is not necessary for me to determine the impact claimed on the Appellant since I am not satisfied that there would in fact be an absence of medical treatment and care, required by the Appellant, for the reasons I have set out above. In these circumstances, the Appellant's Article 3 ECHR claim stands to be dismissed.

The Appellant's Article 8 ECHR claim

21.   In the alternative, the Appellant also pursued his appeal under Article 8 ECHR on the basis that there would be 'very significant obstacles to his integration' on return to Rwanda, as set out in Appendix Private Life to the Immigration Rules and previously under para 276ADE(1) of the Rules. Mr Ahmed relied on his submissions made in the context of the Appellant's Article 3 claim and the preserved findings concerning the Appellant's private life, which I have summarised at para 9(d)-(h).

22.   For the same reasons as I have set out above, I do not accept that there would be very significant obstacles to the Appellant's integration on return to Rwanda. A previous decision of the FtT found that there was no material before them to indicate that there would be very significant obstacles to the Appellant's integration into Rwanda (see para 54, [90] of the consolidated error of law bundle). The well-established Devaseelan principles apply. The burden of establishing this aspect of the Appellant's claim is on the Appellant and there is a complete absence of evidence concerning his likely circumstances on return to Rwanda.

23.   There is no doubt that the Appellant has developed a private life while in the UK and that Article 8(1) is engaged. Applying s.117B of the Nationality, Immigration and Asylum Act and taking into account my findings above (as well as the preserved findings of the FtT summarised at para 9 above), I consider the parties' competing interests and adopt a balance sheet approach:

(a)    the maintenance of effective immigration controls is in the public interest and this is a factor against the Appellant and in favour of the Respondent - the Appellant does not meet the requirements of the Immigration Rules. I have at the forefront of my mind the great weight to be given to firm and fair immigration controls. In this case in particular, the Appellant has not been successful in any of his claims. He has been living in the UK without leave to remain since 2010;

 

(b)   the following factors are neutral:

 

i.            The Appellant speaks good English;

ii.          The Appellant has been in receipt of NHS care and treatment;

 

(c)    the Appellant's private life falls to be considered in his favour, which includes close ties and a support network with friends and fellow-church members, voluntary work and aspirations to study at University with scholarship funding. Nevertheless, I have regard to the statutory consideration that little weight should be given to a private life established by a person whose immigration status is unlawful/precarious.

24.   Thus, the factors raised by the Appellant do not outweigh the public interest in maintaining effective immigration controls. The decision to remove the Appellant is proportionate as this does not lead to unjustifiably harsh consequences for the Appellant in breach of Article 8 ECHR.

Notice of Decision

25.   Pursuant to my decision promulgated on 16 ^th December 2024, the decision of the First-tier Tribunal allowing the Appellant's appeal on Humanitarian Protection grounds involved the making of a material error of law and this was set aside.

26. I remake the decision by dismissing the Appellant FK's appeal against the Respondent Secretary of State's decision dated 9 ^th January 2024 on both protection and human rights grounds.

 

Sarah Pinder

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

10.04.2025

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-003316
	First-tier Tribunal No: PA/00743/2024

 

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

16 December 2024

 

 

Before

 

UPPER TRIBUNAL JUDGE PINDER

 

 

Between

 

F K

(ANONYMITY ORDER MADE)

Appellant in the FtT

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent in the FtT

Representation :

 

For the Appellant: Ms K Wass, Counsel instructed by Elizabeth Rose Solicitors.

For the Respondent: Mr Lindsley, Senior Presenting Officer.

 

Heard at Field House on 23 October 2024

 

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 Secretary of State appeals with the permission of Upper Tribunal Judge Lodato granted on 22 ^nd August 2024 against the decision of First-tier Tribunal Judge Suffield-Thompson. By her decision of 20 ^th May 2024, Judge Suffield-Thompson ('the Judge') allowed FK's appeal against the Respondent's decision to refuse his protection and human rights claim.

2.               I refer to the Secretary of State as the Respondent and to FK as the Appellant, as they respectively appeared before the First-tier Tribunal ('FtT'). This also applies to the Anonymity Order set out above.

Background

3.              The Appellant is a Rwandan citizen, who entered the UK in 2010. He initially claimed to be a citizen of the Democratic Republic of Congo ('DRC'), but his nationality was disputed by the Respondent and the Judge, as well as previous judges of the FtT, found that the Appellant is in fact a Rwandan national.

4.              Following an unsuccessful asylum claim and appeal finalised in 2012, the Appellant has made a number of unsuccessful fresh claims. The most recent fresh claim, submitted in November 2023, was refused by the Respondent on 9 ^th January 2024. As part of this fresh claim, the Appellant submitted that returning him to the DRC (the country of his claimed nationality) would be in breach of Articles 2, 3 and 8 ECHR on the grounds that he would be at risk as a result of his ethnicity and of his ill-health.

5.              The Appellant appealed against the Respondent's decision and his appeal was heard by the Judge on 10 ^th May 2023. Before the Judge, the Appellant pursued his appeal on the grounds that he was a DRC citizen and that the decision was in breach of his rights under Articles 3 and 8 ECHR on medical grounds. The Appellant was represented by Mr Joseph, Counsel and the Respondent by a Presenting Officer. The Judge heard oral evidence from the Appellant only and submissions from both advocates, before reserving her decision.

The Decision of the First-tier Tribunal Judge

6.              As mentioned above, the Judge found at [45] that the Appellant is a citizen of Rwanda and not of the DRC, having considered (at [37]-[44]) that the Appellant had not provided any new evidence in support of his claimed nationality that would lead her to depart from the previous findings of Judge Crowther and Judge Landes, who had both separately considered the issue in earlier proceedings brought by the Appellant in the FtT.

7.              In respect of the Appellant's Article 3 claim, the Judge accepted at [50] that the Appellant is a seriously ill person with a diagnosis of HIV. This was in answer to the first question that needs to be considered following the leading authorities of AM (Zimbabwe) [2020] UKSC 17; [2021] AC 633 and AM (Art 3; health cases) Zimbabwe [2022] UKUT 131, interpreting and applying Paposhvili v. Belgium [2016] ECHR 1113; [2017] Imm AR 867. The Judge also summarised at [51]-[53] the medical evidence before her on the Appellant's diagnosis and the importance for the Appellant to continue with his current treatment. The evidence also confirmed that the Appellant was at greater risk of Covid-19 and many other serious illnesses and infections.

8.              At [54], the Judge recorded that the Appellant's Counsel had submitted that there was no CPIN relating to healthcare in Rwanda and that the Home Office country information note gave a lot of information about the country but made no mention of healthcare or HIV treatment. The Judge then stated that the onus was on the Respondent to provide evidence that Rwanda had the medication that the Appellant needed and that he would have access to that medication. The Judge concluded that the Respondent had not provided any such evidence in this matter. In light of the Appellant's diagnosis and the medical evidence that she had considered, the Judge found that to remove the Appellant would be in breach of his Article 3 rights.

9.              The Judge went on to consider at [55]-[69] the Appellant's Article 8 claim through the prism of the relevant private life Immigration Rules and following an assessment of proportionality and the factors under section 117B of the 2002, also finding in favour of the Appellant. Specifically at [56], the Judge recorded that she brought forward all of her findings in relation to the Appellant's medical conditions to conclude that there were very significant obstacles to his integration on return. She also recorded at [57] the bringing forward of her findings to the proportionality assessment. At [67], the Judge also found that it was not reasonable to expect the Appellant to be removed from the UK on medical grounds since the consequences of removal could bring about real suffering and the end of the Appellant's life over time.

10.          With the findings above, the Judge dismissed the Appellant's asylum appeal under the Refugee Convention but allowed the appeal on Articles 3 and 8 ECHR grounds.

The Appeal to the Upper Tribunal

11.           Permission to appeal was granted to the Respondent Secretary of State, who argued in a single ground that the Judge had misdirected herself as to the burden of proof and specifically in relation to the issue of availability and accessibility of medical treatment. It was considered arguable that the Judge had mis-stated the law at [54] when she found that "(t)he onus is on the Respondent to provide evidence that Rwanda has the drugs that the Appellant needs and that he will have access to these drugs" without identifying that the Appellant must first adduce evidence "capable of demonstrating that there are substantial grounds for believing" that it is a very exceptional case because of a real risk of being subject to inhuman treatment on account of an inability to access the necessary treatment - reference being made to [32]-[33] of AM (Zimbabwe) in the Supreme Court.

12.           It was also considered arguable that the Judge's findings on the Appellant's Article 3 claim were inseparable from the conclusions she later made in relation to the Appellant's Article 8 ECHR claim, whether under the Immigration Rules with the test of 'very significant obstacles to integration' or more widely within the proportionality assessment, noting the 'bringing forward' references of the Judge at [57]. This made it arguable that the claimed error in relation to the burden of proof was material to both the Article 3 and 8 grounds, which had succeeded for the Appellant before the FtT.

13.           Mr Lindsley, on behalf of the Secretary of State, relied on the pleaded grounds of appeal and acknowledged that the Judge had correctly set out the applicable legal framework for the Appellant's Article 3 medical grounds claim at [47]-[48]. Mr Lindsley maintained however that the error of law lied at [54] where the Judge had first reversed the burden of proof and secondly, where she was in fact mistaken when finding that the Respondent had not provided any evidence of what treatment would be available to the Appellant in Rwanda.

14.           With regards to the burden of proof, Mr Lindsley submitted that the Judge, after finding that the Appellant was a seriously ill person, had failed to ask herself the second question identified by the Upper Tribunal in the reported decision of AM (Zimbabwe) and as identified in the grant of permission to appeal to the Respondent. Namely, whether the Appellant had 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 on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment".

15.           Mr Lindsley helpfully took me through the relevant passages of the Respondent's decision setting out the evidence that she was relying on in response to the Appellant's claim. In particular, this consisted of a 'response to an information request' on Rwanda of 19 ^th August 2022, which recorded inter alia that those arriving in Rwanda from the UK will be given free universal health insurance and that the WHO had reported that for each Rwandan, Universal Health Coverage meant that all people have access to the health services they need, when and where they need them, without financial hardship. This included the full range of essential health services, from health promotion to prevention, treatment, and care to minimise out-of-pocket payments.

16.           Mr Lindlsey submitted that the summary provided by the Judge at [54] was not an accurate reflection of the passages relied upon by the Respondent in her decision of 9 ^th January 2024, which went to one of the core issue in dispute. Albeit it was not clear - Mr Lindlsey acknowledged - whether the Judge was merely summarising there the Appellant's Counsel's submissions as opposed to the competing arguments. Any lack of clarity in this respect, Mr Lindsley submitted, only strengthened the Respondent's appeal. Lastly, with regards to the Judge's findings under Article 8, these were clearly grounded, at least to a large extent, in the Judge's erroneous findings on the relevant issues under Article 3 ECHR.

17.           The Appellant had not sought to file and serve a response to the grounds of appeal under Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008. Before me, Ms Wass opposed the appeal responding to the grounds pursued by Mr Lindsley in turn. She submitted that, as acknowledged by Mr Lindsley, the Judge had correctly reminded herself at [47] of the questions that she was required to determine. She had found at [50] that the Appellant was a seriously ill person, and this was not a finding that the Respondent had sought to challenge. She had considered at [52] the evidence as to what would happen to the Appellant if he did not receive the treatment he required.

18.           Ms Wass also emphasised that the summary by the Judge at [54] was also correct since the resources and evidence relied upon by the Respondent in her decision did not in fact expressly refer to HIV treatment and its availability and/or accessibility. She submitted that it should also be reasonably inferred from the Judge's summary at [54] that she was referring to the Respondent's evidence on Rwanda contained in the Respondent's decision. In the circumstances, she asked me to consider that even if there was an error on the part of the Judge, this was not a material one in light of the lack of evidence before her that the treatment required was in fact available/accessible in Rwanda.

19.           With regards to the grounds pursued against the Judge's approach and findings on the Appellant's Article 8 claim, there was no challenge from the Respondent that the Judge had misdirected herself as to the applicable law. Ms Wass submitted that the Judge had undertaken a detailed assessment, with detailed reasons and references to other factors in the Appellant's favour. The Judge's assessment under Article 8 was not therefore limited to her findings as to the Appellant's health and availability of treatment on return. Those additional factors were very clearly set out and considered at [63]-[65] of the Judge's decision

20.           On disposal, both parties agreed that if I found in favour of the Respondent, the Appellant's appeal would need to be re-made but any re-making was appropriate to be conducted in the Upper Tribunal as any remaining fact-finding was limited to the Appellant's Article 3 claim with the finding that he is a seriously ill person. Similarly, both parties agreed that the Judge's findings at [26]-[53] and [63]-[65] ought to be preserved.

21.           I reserved my decision at the conclusion of the parties' submissions.

Analysis and Conclusions

22.           I am satisfied that the judge has erred in law at [54] where she recorded that the onus is on the Respondent to provide evidence that Rwanda has the medication that the Appellant needs and that he will have access to that medication. That passage is the first indication of the Judge's consideration of the second part of the test established by Paposhvili and as helpfully broken down by the Upper Tribunal in AM (Zimbabwe) as summarised above. Prior to this passage, there is no indication that the Judge had considered whether the Appellant had adduced evidence that was capable of demonstrating substantial grounds for believing that a seriously ill person 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.

23.           What precedes the passage that I have considered immediately above is the Judge's recording of the submissions made by the Appellant's counsel. Those submissions were that there was no specific CPIN on Rwanda relating to healthcare. The Judge then recorded that the Home Office country information note did not expressly refer to healthcare or HIV treatment but instead contained a lot of information about Rwanda. I agree with Mr Lindsley that it is not clear whether the record on the Home Office country information note is a record of a submission made by the Appellant's counsel or the Judge's own summary or assessment of the Home Office country information note. There is otherwise no express reference to the information contained in the Respondent's decision, which was relied upon and which expressly referred to healthcare in Rwanda. The Judge's summary therefore at [54] is either incorrect or focuses on the Appellant's submissions made on the Respondent's CPIN on Rwanda and nothing more.

24.           Either way, it is clear that the Judge has erred since the Judge focused her mind at [54] on the Appellant's submissions on a lack of evidence, either available in the public domain or from the Respondent herself. The Judge did not record any evidence adduced by the Appellant and Ms Wass accepted before me that none had been adduced in so far as the availability and accessibility of treatment in Rwanda was concerned. I am satisfied therefore that the Judge expected the evidence on availability and accessibility to come from the Respondent and this is further cemented by the Judge's recording of the onus resting on the Respondent in the next part of her paragraph at [54]. Such an error is clearly material since it concerns the core considerations and the core issues that the Judge was required to determine as part of the relevant test under Article 3 ECHR and as it applies to the Appellant's claim and health and medical claims more generally.

25.           With repeated references to the Judge's findings on the Appellant's Article 3 claim being taken forward to her assessment of the Appellant's Article 8 ECHR claim, I am also satisfied that the error of law pursued by the Respondent and that I have found above, has also meant that the Judge's findings under Article 8 are unsafe. I agree with Ms Wass that other factors were clearly weighed in the balance by the Judge in favour of the Appellant that are unrelated to his health but it is also clear that the health factors played a significant role. I would not expect any differently: any findings relating to the Appellant's health, either way, would be a relevant factor in a proportionality assessment and in an assessment of whether there are very significant obstacles to the Appellant's integration on return.

26.           For the reasons above, I am satisfied that the Judge has materially erred in law and the Judge's decision to dismiss the appeal is therefore set aside pursuant to s.12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.

27.           As recorded above, both parties agreed that the fact-finding that remains is sufficiently limited to enable the matter to be retained in the Upper Tribunal for re-making. The sole issue that remains to be determined is whether the Appellant has adduced evidence capable of demonstrating that substantial grounds have been shown for believing that as a seriously ill person, he or she 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 or her state of health resulting in intense suffering, or

(b)      To a significant reduction in life expectancy?

28.           Having given careful consideration to the Joint Practice Statement of the First-tier Tribunal and Upper Tribunal concerning the disposal of appeals in this Tribunal at [7.2], I am satisfied that it is appropriate for the appeal to remain in this Tribunal for re-making. The Judge's findings at [26]-[53] and [63]-[65] are preserved.

Notice of Decision and Directions

29.           The decision of the First-tier Tribunal is set aside. The Judge's findings at [26]-[53] and [63]-[65] are preserved.

30.           The parties are to have careful regard to the following directions:

(1) The appeal is to be re-listed in the Upper Tribunal before Judge Pinder on the first available date at least four weeks after the date of the sending of this decision on error of law. The provisional time estimate for the hearing should be 2 hours, subject to any alternative view by the parties.

(2) Any further evidence relied on by either party is to be filed and served no later than seven days before the next hearing.

(3) In respect of any other person whom it is proposed to call to give oral evidence, there must be a witness statement drawn in sufficient detail to stand as evidence-in-chief such that there is no need for any further examination-in-chief. Any such further witness statement must be filed and served no later than seven days before the next hearing.

(4) All further evidence relied on by either party must be contained within a consolidated, paginated and indexed bundle.

(5) There must be a skeleton argument on behalf of the Appellant, filed and served no later 7 days before the hearing.

(6) In the event that the Appellant is to give oral evidence and if the Appellant requires a court interpreter, the Appellant will, within 14 days of this decision being sent to the parties, write to the Tribunal to make any such request and to include the language/dialect that is required.

 

Sarah Pinder

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

26.11.2024