Unchallenged Expert Evidence and Appellate Restraint in Article 2/3 Deportation Appeals

1. Introduction

Safi v Secretary of State for the Home Department concerned a Secretary of State appeal against a decision allowing an Afghan national’s human-rights appeal (Articles 2 and 3 ECHR) against deportation to Afghanistan. The First-tier Tribunal (“FTT”) allowed the appeal; the Upper Tribunal (“UT”) found no error of law; and the Court of Appeal (Bean LJ, Peter Jackson LJ and Asplin LJ) dismissed the Secretary of State’s appeal.

The respondent, Kamran Safi, arrived in the UK as a child and later committed serious offences, including a conviction for aggravated burglary and theft, for which he received a sentence of six years and six months’ detention. He also asserted (and the tribunal accepted, relying on a Single Competent Authority (“SCA”) conclusive grounds decision) that he had been a victim of childhood trafficking/modern slavery and sexual exploitation, with ongoing mental-health difficulties (complex PTSD and mild depression).

The key issues on appeal were not about Article 8 proportionality (expressly not in play), but about:

  • whether the FTT’s reasoning on Article 2/3 risk was legally adequate; and
  • whether the FTT impermissibly relied on general conditions (including poverty) rather than respondent-specific risk, particularly in relation to “destitution” as an Article 3 pathway.

2. Summary of the Judgment

The Court of Appeal upheld the UT’s conclusion that the FTT made no error of law. While the FTT’s reasoning was “somewhat compressed”, it was sufficient to explain why the appeal was allowed.

The court emphasised that the Home Office’s defeat was not based on any general proposition that serious offenders cannot be removed to Afghanistan. Rather, it followed from the FTT’s acceptance of case-specific expert evidence (notably the reports of Mr Tim Foxley MBE and Dr Imranali Panjwani) about the respondent’s individual risk profile (including vulnerability, trafficking history, risk of re-trafficking, and risks associated with “Westernisation”).

Critically, the Home Office had not sought to challenge that expert evidence through cross-examination or by requiring the experts to attend. In that procedural context, the Court of Appeal held that the FTT was entitled to rely on the unchallenged expert material, and the UT and Court of Appeal should not “over-scrutinise” the FTT’s reasoning.

3. Analysis

3.1 Precedents Cited

3.1.1 Soering v UK (1989) 11 EHRR 439

The judgment reaffirmed the foundational removal principle from Soering v UK (1989) 11 EHRR 439: removal breaches Article 3 where there are substantial grounds for believing the person would face a real risk of inhuman or degrading treatment in the receiving state. The Court of Appeal used Soering to frame the legal lens: the question is risk on return, not the seriousness of the UK offending (unless relevant to risk).

3.1.2 AM (Zimbabwe) [2020] UKSC 17 and Ainte (material deprivation - Art 3 - AM (Zimbabwe)) [2021] UKUT 203 (IAC)

The case addressed Article 3 via “destitution/material deprivation.” The Court of Appeal reiterated that widespread poverty is not enough. The controlling test—drawn from AM (Zimbabwe) [2020] UKSC 17 and summarised in Ainte (material deprivation - Art 3 - AM (Zimbabwe)) [2021] UKUT 203 (IAC)—is whether conditions create a real risk the individual will be exposed to intense suffering or a significant reduction in life expectancy.

Importantly, Bean LJ expressed doubt that the FTT’s findings on destitution (standing alone) would have been a sound basis for allowing the appeal. But the appeal succeeded because the destitution analysis was not the “most important part” of the overall reasoning: the pivotal aspect was the unchallenged, respondent-specific expert evidence about risk from the Taliban and re-trafficking, linked to vulnerability and “Westernisation.”

3.1.3 Kapikanya [2025] EWCA Civ 987 and the “restraint” line of authority

The Court of Appeal treated Kapikanya [2025] EWCA Civ 987 as a recent and authoritative restatement of how appellate courts should evaluate the reasoning of specialist FTT decisions. In turn, Kapikanya drew together principles from:

  • AH (Sudan) v Secretary of State for the Home Department [2007] UK HL 49 [2008] 1 AC 678 (FTT is specialist fact-finder; appellate intervention only for legal error);
  • MA (Somalia) v Secretary of State for the Home Department [2010 UKSC 49 [2011] 2 All ER 65 (where a point is not expressly mentioned, be slow to infer it was ignored);
  • R (Jones) v First Tier Tribunal and Criminal Injuries Compensation Authority [2013] UKSC 19 [2013] 2 All ER 625 (do not assume misdirection because reasons are not fully spelled out);
  • UT (Sri Lanka) v The Secretary of State for the Home Department [2019] EWCA Civ 1095 (issues and reasoning may be express or inferred);
  • A4 (Nigeria) v Secretary of State for the Home Department [2020] EWCA Civ 1296 [2020] 4 WLR 145 (FTT judges are assumed to know and apply relevant authorities without express citation unless language shows otherwise).

These authorities supplied the decisional discipline applied here: the UT (and then the Court of Appeal) should not convert “could have been better reasoned” into an error of law, where the path of reasoning is sufficiently clear.

3.1.4 TUI UK Ltd v Griffiths [2025] AC 374 [2023] UKSC 48

The Court of Appeal used TUI UK Ltd v Griffiths [2025] AC 374 [2023] UKSC 48 (at [70]) to support a practical proposition: if a party does not challenge expert evidence (for example, by requiring attendance for cross-examination), it will be in difficulties later advancing arguments contrary to that untested expert material. In this case, that point mattered because the Home Office had been served with extensive expert evidence and did not meaningfully test it at the FTT stage.

3.2 Legal Reasoning

The court’s reasoning is best understood as combining (i) the substantive Article 2/3 risk framework with (ii) procedural and institutional principles about tribunal fact-finding and appellate review.

3.2.1 The correct legal questions

Bean LJ identified the true task before the FTT: whether there was a real risk on return that Mr Safi would be:

  • killed unlawfully (Article 2); or
  • subjected to inhuman or degrading treatment (Article 3), including via re-trafficking or Taliban mistreatment.

The Court of Appeal accepted that Article 3 can be engaged by “extreme material deprivation,” but reiterated the high threshold (intense suffering or significant reduction in life expectancy) and warned against equating “poverty” with “destitution” as a matter of law.

3.2.2 Why the Home Office challenge failed

The court treated the Secretary of State’s attack as, in substance, an attempt to re-run the merits and to demand a level of reasoning that is not required, especially where the evidence was unchallenged and the key findings were apparent.

The judgment points to a decisive practical reality: the Home Office had been served (after directions) with an extensive set of expert reports. The FTT recorded that the expert evidence about “Westernisation” and trafficking risk was not challenged. The HOPO made limited submissions and did not cross-examine on the “Westernised” issue. In that setting, the FTT’s acceptance of the evidence was unsurprising, and the UT and Court of Appeal considered it illegitimate to fault the FTT for relying on it absent a clear legal misdirection.

3.2.3 Destitution reasoning treated as non-determinative

The Court of Appeal carefully avoided endorsing a lax approach to Article 3 destitution claims. Bean LJ’s observation that the destitution findings might not have been sufficient “had they stood alone” is important: it signals that tribunals must still apply AM (Zimbabwe) rigorously. However, because the appeal was supported by stronger, individualised strands (re-trafficking and Taliban risk associated with vulnerability and “Westernisation”), any shortcomings in the destitution reasoning did not amount to a material error of law.

3.3 Impact

The decision is likely to influence future deportation and removal appeals in three ways:

  1. Procedural discipline around expert evidence: Where an appellant serves detailed expert reports and the respondent does not require the experts for cross-examination or adduce contrary evidence, appellate courts may be reluctant to entertain later complaints that the FTT “should not” have accepted those opinions. The citation of TUI UK Ltd v Griffiths in this setting is a clear warning about the forensic consequences of leaving expert evidence untested.
  2. Reinforced appellate restraint: By anchoring its approach in Kapikanya [2025] EWCA Civ 987 (and the cases it consolidates), the court underscores that FTT decisions are not to be overturned for imperfect drafting if the essential reasoning is sufficiently intelligible. This may curb “reasons challenges” that are, in reality, disagreements with findings of fact.
  3. Destitution claims remain tightly controlled: The judgment confirms that tribunals must not treat countrywide poverty as synonymous with Article 3 “extreme material deprivation.” At the same time, it shows that where destitution is considered alongside other respondent-specific risk factors (e.g., trafficking vulnerability and targeted harm), the overall risk assessment can still lawfully succeed.

4. Complex Concepts Simplified

4.1 “Real risk” and “substantial grounds” (Articles 2 and 3)

The tribunals do not decide whether harm is more likely than not. They ask whether there are substantial grounds for believing there is a real risk of prohibited harm (unlawful killing for Article 2; inhuman/degrading treatment for Article 3) if removed.

4.2 Article 3 via destitution / “extreme material deprivation”

Article 3 can be engaged even without deliberate state mistreatment if the individual will face conditions so severe that they amount to inhuman or degrading treatment. But the bar is high: the person must face intense suffering or a significant reduction in life expectancy. “Lots of people are poor” is not enough; the question is what will happen to this individual, given their specific vulnerabilities and circumstances.

4.3 “Westernisation”

“Westernisation” is not a single objective label. It is an assessment of whether a returnee’s language, accent, behaviour, social presentation, or perceived values after time in the West may cause them to be viewed as non-conforming and therefore at risk. The CPIN itself accepts the term lacks a clear definition, which makes tribunal findings fact-sensitive and highly dependent on evidence.

4.4 SCA “conclusive grounds” decision

The SCA decision is a formal finding within the UK’s modern slavery/trafficking framework that a person is (or is not) a victim of trafficking. In this case, that finding was treated as significant evidential support for vulnerability and re-trafficking risk.

5. Conclusion

Safi reinforces a practical and doctrinal message: appellate courts will be slow to overturn an FTT’s Article 2/3 risk decision where the FTT has relied on unchallenged, respondent-specific expert evidence, even if the tribunal’s reasons are “compressed.” The case also quietly reaffirms that while destitution can engage Article 3, tribunals must apply the AM (Zimbabwe) threshold and avoid equating general poverty with the requisite severity of harm.

The enduring significance lies in its combination of (i) a disciplined, evidence-led approach to individual risk and (ii) a clear warning that failures to test expert evidence at first instance can be fatal to later “reasons” appeals.