Procedural Rigour in the FtT: Parties Must Identify the “Principal Controversial Issues” (Endorsing Lata; Narrowing “Serious Injustice” Escape)

1) Introduction

The appellant (“AL”), a national of the Democratic Republic of the Congo (“DRC”), entered the UK as a visitor in February 2020 and claimed asylum two months later. After refusal of her asylum and related claims, her case evolved into a mixed protection-and-human-rights appeal, with particular emphasis on a medical Article 3 ECHR case (serious neurocognitive disorder/lack of capacity) and an Article 8 ECHR family/private life case grounded in dependency on adult children in the UK, especially her daughter “PE”.

AL’s appeal was dismissed by the First-tier Tribunal (Immigration and Asylum Chamber) (“F-tT”) in a very detailed determination. The Upper Tribunal (“UT”) upheld that decision, finding no error of law. Before the Court of Appeal, AL argued (i) that the UT erred in concluding that certain Article 3 “health” points were not advanced below, and (ii) that the UT wrongly upheld the F-tT’s Article 8 analysis.

The appeal raised a broader procedural question of recurring importance in immigration appeals: to what extent may a party criticise an FtT decision for failing to decide points that were not clearly advanced as issues at the hearing—particularly in the post-Practice Direction era requiring a focused Appeal Skeleton Argument and issue-definition?

2) Summary of the Judgment

The Court of Appeal dismissed the appeal. It held that:

• The UT was correct that AL did not advance her Article 3 medical case in the F-tT on the basis now emphasised on appeal (notably, the impact of separation from UK carers and the removal process). The F-tT could not be faulted for failing to decide a case that was not put to it.
• There was no error of law in the F-tT’s Article 8 approach: it identified interference, applied the statutory public interest considerations, assessed dependency and support in the DRC, and reached a reasoned proportionality conclusion.
• The court endorsed the UT’s decision in Lata (F-tT: Principal Controversial Issues) [2023] UKUT 163 (IAT); [2023] Imm AR 4, emphasising the duty on parties to identify the “principal controversial issues” for determination.
• While AAZA (Yemen) v Secretary of State for the Home Department [2025] EWCA Civ 705 had left open whether Lata might yield in cases of “serious injustice”, the court considered it “difficult to imagine” such a case given current procedural rigour and the limited scope of appeals on points of law.

3) Analysis

3.1 Precedents Cited

R (Robinson) v Secretary of State for the Home Department [1998] QB 929 (“Robinson”)

Robinson establishes a narrow principle: appellate asylum adjudicators are not confined to arguments advanced, but may need to apply obvious Convention/refugee law points to avoid the UK breaching its obligations. However, the “Robinson obvious” category is tightly constrained: the point must be readily discernible, obvious, and have “strong prospects of success”—not merely arguable.

In AL, the court relied on Robinson primarily to confine any suggestion that the F-tT should have hunted for unpleaded points. The court reaffirmed:

• The F-tT is not obliged to search for new points;
• Robinson is limited to certain refugee-law points and does not provide a general licence to raise unargued Article 3/8 issues later;
• AL’s case did not meet the demanding “obvious/strong prospects” threshold in any event.

Lata (F-tT: Principal Controversial Issues) [2023] UKUT 163 (IAT); [2023] Imm AR 4 (“Lata”)

Lata is the procedural centrepiece. It holds (in essence) that, absent a “Robinson obvious” point, it is not an error of law for an FtT judge to fail to decide an issue that was not raised as one of the principal controversial issues—because this would undermine procedural rules and the overriding objective.

The Court of Appeal in AL went further than merely applying Lata: it indicated that the court “should endorse” it. Two aspects are especially significant:

• Symmetry between issues and reasons: the judgment links the parties’ duty to identify the main issues with the tribunal’s duty to give reasons on those issues. The FtT’s reasons obligation tracks what the parties have properly put in dispute.
• Non-inquisitorial character reinforced by modern procedure: the Practice Direction/ASA regime exists to prevent judges having to “trawl through” papers. The responsibility lies with parties to define and narrow disputes.

AAZA (Yemen) v Secretary of State for the Home Department [2025] EWCA Civ 705 (“AAZA”)

In AAZA, the Court of Appeal accepted Lata but left open whether it should apply “in its full rigour” where it would cause “serious injustice”. In AL, the court addressed that qualification directly, expressing scepticism that such an exception will often be needed given:

• the increased procedural rigour in the F-tT;
• multiple opportunities to crystallise issues (ASA, respondent review, CMR, opening/closing submissions); and
• appeals to the UT/Court of Appeal being confined to errors of law.

The practical signal is that the “serious injustice” escape hatch is unlikely to be a fertile source of appellate relief where the alleged error is simply “the FtT didn’t decide a point we didn’t properly run”.

South Bucks District Council v Porter (No 2) [2004] UKHL 33; [2004] 1WLR 1953

This planning-law authority is cited for the common public-law concept of “principal controversial issues” in the reasons context. Its invocation in AL helps frame Lata not as a technical immigration novelty but as an expression of a general principle: decision-makers must give adequate reasons on the central issues—yet they are not required to address every conceivable sub-argument hidden in the evidential undergrowth.

Singh v Dass [2019] EWCA Civ 360

Although not an immigration case, it is referenced (via AAZA) as part of the broader appellate-law backdrop: appellate courts generally disallow parties from reshaping cases on appeal when points were not taken below, subject to limited exceptions.

Jeunesse v Netherlands (2015) 60 EHRR 17; and (R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11; [2017] 1 WLR 823

These authorities are discussed (through Arshad v Secretary of State for the Home Department [2025] EWCA Civ 355) for the Article 8 proportionality framework, particularly the relevance of precarious or unlawful residence to the weight to be given to family/private life. In AL, they support the conclusion that even formally extant leave does not necessarily neutralise “precariousness” in the Article 8 balance.

Arshad v Secretary of State for the Home Department [2025] EWCA Civ 355

Cited for its analysis of how Strasbourg jurisprudence treats precariousness/unlawfulness in Article 8 cases. It underpins the court’s rejection of the submission that AL’s section 3C leave made her position materially stronger in Article 8 terms.

Bokqiu v Secretary of State for the Home Department [2026] EWCA Civ 191

Although handed down after the hearing, Bokqiu was considered on post-hearing written submissions. It held that ILR obtained by deception and later revoked was not “lawful residence” for Part 5A purposes. The court treated the analogy as relevant to AL’s argument that her presence had been “lawful” due to leave/section 3C. The court indicated an inclination that section 3C leave resting on a false asylum claim may not count as “lawful” in the relevant sense, while also stressing that this was marginal given the FtT’s compelling reasons.

AM (Article 3;health cases) Zimbabwe 2022] UKUT 00131 (IAC)

The UT recorded that AL’s grounds relied on Article 3 “health” caselaw “as now outlined” in this decision. In AL, however, the determinative point was not refining the substantive Article 3 threshold but whether the relevant factual/causal case was actually advanced to the FtT.

Devaseelan (Second Appeals – ECHR – Extra-Territorial Effect) Sri Lanka [2002] UKIAT 00702

Mentioned within the Lata narrative: it illustrates how “starting points” from earlier determinations can become contested. Its relevance here is indirect: AL uses Lata to warn against reconstructing an unadvanced case from hints in paperwork rather than from clearly articulated issues at the hearing.

3.2 Legal Reasoning

(a) The core procedural holding: issues must be put, not discovered

The court’s key reasoning is procedural and institutional:

• The F-tT’s role is adjudicative, not inquisitorial. It is not required to comb expert reports and witness evidence to “detect” legal points that a represented party did not present as issues requiring determination.
• Modern FtT practice (Practice Direction and ASA requirements) strengthens the expectation that the parties will identify the issues and thereby define the scope of required findings and reasons.
• Accordingly, an appellant cannot convert an unargued evidential theme into a free-standing ground of error of law by contending that the tribunal “failed to take it into account”.

(b) Application to Article 3 (medical) claims

AL’s appeal sought to reframe the Article 3 medical case around “the three points”: (1) separation from UK family carers, (2) the removal process itself, and (3) dignity concerns around intimate care by male relatives in the DRC.

The court accepted the UT’s assessment that these matters were not, in substance, advanced in the FtT as part of the Article 3 medical threshold case as now articulated. The FtT had understood AL’s Article 3 medical case to be that she would have no support in the DRC and would be left to fend for herself; it rejected that factual premise (finding family support and treatment access in the DRC, and rejecting asserted “no contact/no support” narratives).

The court also rejected any attempt to invoke Robinson to oblige the FtT to develop these points on its own initiative: they were not “Robinson obvious” points with strong prospects of success, and in any event were not of the kind Robinson is designed to capture in this context.

(c) Article 8 proportionality and “precariousness”

On Article 8, the court held that the FtT:

• properly identified family/private life interference;
• applied Part 5A of the Nationality, Immigration and Asylum Act 2002 (including section 117B);
• made detailed findings on dependency and the realistic availability of care/support in the DRC;
• factored in adverse immigration history and credibility findings (including that the protection claim was “not genuine” and the finding she never intended to leave after entering as a visitor).

The submission that AL had been lawfully present via leave/section 3C did not materially assist. The court stressed the continued relevance of “precariousness” (both statutorily and in Strasbourg caselaw), and—drawing an analogy with Bokqiu—questioned whether leave associated with deception/false claims should be treated as “lawful” for these purposes.

(d) “Treatment” and the medical Article 3 test

AL argued that the personal care she received from PE in the UK amounted to “treatment” for the purposes of the Article 3 medical threshold (serious, rapid and irreversible decline causing intense suffering). The court declined to decide that abstract point: it assumed it in AL’s favour for argument’s sake and still rejected the appeal because the FtT had rejected the factual foundations (notably, the claim that she would lack support/care in the DRC).

3.3 Impact

(1) Strong reinforcement of issue-definition discipline

The most important practical impact is the Court of Appeal’s endorsement of Lata: in represented FtT appeals, parties should expect little sympathy for “you didn’t consider X” grounds where X was not articulated as a principal controversial issue. This is likely to:

• increase the premium on well-drafted ASAs and clear schedules of issues;
• encourage respondents to “join issue” explicitly in reviews rather than hold back points for appeal;
• reduce successful “reasons” challenges premised on unpleaded points.

(2) Narrowing the practical scope of the “serious injustice” qualification in AAZA

While not overruling AAZA, the court’s statement that it is “difficult to imagine” a serious-injustice case in the modern FtT procedural environment signals that the exception will be rarely engaged. Future appellants seeking to rely on AAZA will likely need to show something more than forensic regret— for example, procedural unfairness, inability to present the case, or a truly exceptional mismatch between the pleaded issues and what the tribunal understood.

(3) Article 3 medical claims: causation narratives must be explicit

The decision underscores that Article 3 medical cases often turn on a structured causal chain (removal → access/support → decline → intense suffering). If an appellant intends to rely on separation from carers, the process of removal, or dignity-related care arrangements as causal drivers of “intense suffering”, those must be expressly advanced as part of the Article 3 case, not merely left implicit in the evidence.

(4) Article 8: section 3C leave is not a panacea

The judgment reinforces that formal leave does not necessarily displace “precariousness” in Article 8 analysis, and it gestures—by analogy with Bokqiu—toward a more substance-focused evaluation where leave is linked to deception or false claims. Even where this remains “marginal” to outcome, it may shape future arguments about the weight to be afforded to family/private life developed during appeal rights.

4) Complex Concepts Simplified

• “Principal controversial issues”: the main disputed questions the tribunal must decide to resolve the appeal fairly. The point of the ASA/issue list is to identify these clearly so the judge decides the right things—and so a party cannot later complain that the judge failed to decide something never truly put in issue.
• “Error of law” vs “I disagree with the facts”: appeals to the UT/Court of Appeal are not opportunities to re-argue evidence. A party must show a legal mistake (wrong test, unfairness, irrationality, failure to decide a properly raised material issue), not just a different view of the facts.
• “Robinson obvious”: an exceptional category where a tribunal may need to apply an obvious, high-merit point even if not argued, mainly to prevent the UK breaching refugee-law obligations. It is not a general doctrine requiring tribunals to trawl for arguable points.
• Article 3 medical threshold (“intense suffering”): a high bar. The claimant must show substantial grounds for believing removal would expose them to a real risk of a serious, rapid and irreversible decline resulting in intense suffering due to absence of appropriate treatment or lack of access to it.
• Section 3C leave: a statutory mechanism extending leave while an in-time application/appeal is pending. It can be “lawful” in a formal sense, but Article 8 proportionality may still treat residence as “precarious”, and the court hinted that where it rests on false claims it may not assist materially in the public-interest balance.

5) Conclusion

AL v Secretary of State for the Home Department [2026] EWCA Civ 370 is a procedural landmark in the post-ASA Practice Direction era. It endorses Lata (F-tT: Principal Controversial Issues) [2023] UKUT 163 (IAT); [2023] Imm AR 4 and confirms that, save for narrow exceptions, the FtT is to decide (and is to be judged on) the issues the parties actually put before it.

Substantively, the judgment offers limited new Article 3/8 doctrine; its significance lies in case-conduct discipline: medical Article 3 causation points such as separation from carers and the mechanics of removal must be squarely advanced as issues, and Article 8 arguments cannot be rescued on appeal by re-labelling unrun points as tribunal “failures”. The court’s treatment of AAZA suggests the “serious injustice” qualification to Lata will be rarely engaged, reinforcing finality and procedural clarity in immigration adjudication.