AA (Morocco) v Secretary of State for the Home Department

Factual and Procedural Background

The case concerns an appellant ("Appellant") who challenged the decision of the Secretary of State for the Home Department ("SSHD") refusing his claims for asylum, humanitarian protection, and human rights under Articles 3 and 8 of the European Convention on Human Rights ("ECHR") as well as under paragraph 276ADE(1)(vi) of the Immigration Rules. The appellant was born in Italy in 1999, lived in Morocco from age 7, and claimed asylum in the UK in 2016 after alleging persecution fears following critical online posts about the Moroccan monarchy. The appellant has Moroccan nationality and suffers from significant mental health issues, including psychosis.

The appellant’s asylum claim has been subject to multiple hearings and decisions over an extended period. Initially, the First Tier Tribunal ("FTT") dismissed the asylum and humanitarian protection claims but allowed a human rights appeal under paragraph 276ADE(1)(vi). Both parties appealed to the Upper Tribunal ("UT"), which set aside the FTT decision and remitted the case for redetermination. A second FTT hearing again dismissed asylum/humanitarian protection claims but allowed the human rights appeal under Articles 3 and 8. The SSHD sought permission to appeal, which was granted, and the UT subsequently allowed both parties’ appeals and remitted the matter again to the FTT for redetermination with no findings preserved. The appellant sought permission to appeal the UT's decision but was refused; however, permission was later granted by a higher court. The SSHD filed a respondent’s notice seeking to uphold the UT’s decision to remit the appeals.

Legal Issues Presented

1. Whether the UT erred in law in remitting the appellant’s asylum, humanitarian protection, and human rights appeals to the FTT for redetermination without preserving findings of fact.
2. Whether the FTT correctly applied the legal principles relating to asylum claims, humanitarian protection, and human rights under Articles 3 and 8 ECHR, including the application of paragraph 276ADE(1)(vi) of the Immigration Rules.
3. Whether the appellant satisfied the threshold for protection under Article 3 ECHR concerning ill-health and the risk of inhuman or degrading treatment upon removal.
4. The proper approach to assessing "very significant obstacles" to integration under paragraph 276ADE(1)(vi) and its relationship with Article 8 claims.
5. Whether the UT properly considered the appellant’s opposition to the SSHD’s appeal of the FTT decision on the human rights claim.

Arguments of the Parties

Appellant's Arguments

• The FTT wrongly relied on its own view of the implausibility of the appellant’s asylum claim without proper regard to his age, vulnerability, and expert evidence.
• The FTT failed to make findings on whether removal would violate Article 3 due to health grounds or whether the appellant would face persecution as a member of a particular social group (persons with mental ill health).
• The appellant opposed the SSHD’s appeal against the FTT’s decision allowing the human rights appeal and argued that the UT ignored his opposition and failed to determine the issue.
• The appellant contended that the FTT’s reasoning on the human rights appeal was legally adequate and that there was overwhelming evidence of lack of family support and risk of intense suffering on return.
• The appellant sought a separate, clear assessment of each claim rather than a combined evaluation.

Respondent's Arguments (SSHD)

• The FTT failed to properly address errors of law identified by the UT, particularly the lack of a free-standing Article 3 assessment based on ill-health.
• The appellant had not discharged the burden of proof to show a real risk of serious, rapid, and irreversible health decline resulting in intense suffering in Morocco.
• The FTT judge wrongly treated the SSHD as having a burden to address matters under the AM (Zimbabwe) test without the appellant meeting the threshold.
• The FTT failed to properly assess the appellant’s ability to rely on family support in Morocco to mitigate obstacles to integration.
• The UT’s decision to remit the entire case to the FTT was correct and within its discretionary powers, including remitting the human rights appeal despite the appellant’s opposition.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17; [2021] AC 633	Correct legal approach to Article 3 ECHR in cases of removal of seriously ill foreign nationals with inadequate medical care in receiving state.	Applied to assess the threshold test for ill-health claims and burden of proof; emphasized the need for proper assessment of risk of serious, rapid, irreversible health decline causing intense suffering.
N v Secretary of State for the Home Department [2005] 2 AC 296	Aliens have no entitlement to remain in the UK for medical or social assistance except in exceptional cases of terminal illness at an advanced stage.	Referenced to clarify the high threshold for Article 3 claims based on health grounds.
Paposhvili v Belgium [2017] Imm AR 867	Extended Article 3 application to serious ill-health cases involving risk of serious, rapid, irreversible health decline causing intense suffering.	Adopted in AM (Zimbabwe) and used to guide assessment of medical treatment availability and accessibility in receiving state.
R (Limbuela) v Secretary of State for the Home Department [2005] UKHL 66; [2006] 1 AC 396	Definition of inhuman or degrading treatment under Article 3 includes treatment causing intense physical or mental suffering or degrading dignity.	Applied to evaluate the severity of treatment risk on removal.
TZ (Pakistan) v Secretary of State for the Home Department [2018] EWCA Civ 1109	Paragraph 276ADE(1)(vi) is determinative of proportionality under Article 8(2) if satisfied; broad evaluative judgment of obstacles to integration is required.	Supported the court’s analysis of integration obstacles and their significance.
Kamara v Secretary of State for the Home Department [2016] EWCA Civ 813; [2016] 4 WLR 152	Interpretation of "very significant obstacles" to integration in deportation context; requires broad evaluative judgment of ability to participate in society of receiving country.	Guided assessment of appellant’s likely reintegration and family support in Morocco.
Sanambar v Secretary of State for the Home Department [2021] UKSC 30; [2021] 1 WLR 3847	Approved Kamara’s interpretation of integration obstacles.	Confirmed the legal test applied to appellant’s integration claim under paragraph 276ADE(1)(vi).
NC v Secretary of State for the Home Department [2023] EWCA Civ 1379	Emphasized need for objective overall evaluation of obstacles to integration including family support and mitigation steps.	Used to critique FTT’s failure to consider all relevant evidence and family support in integration assessment.
GS (India) v Secretary of State for the Home Department [2015] EWCA Civ 40; [2015] 1 WLR 3312	Relationship between Articles 3 and 8 in health-based removal claims; Article 8 does not provide easier route than Article 3, and absence of medical treatment alone does not breach Article 8.	Applied to clarify that Article 8 claims require separate or additional factual elements beyond health concerns.
SL (St. Lucia) v Secretary of State for the Home Department [2018] EWCA Civ 1894	Confirmed principles in GS (India) remain good law post AM (Zimbabwe).	Supported ongoing legal framework for health-based human rights claims.

Court's Reasoning and Analysis

The court analysed the appellant's multiple claims by applying distinct legal principles relevant to asylum, humanitarian protection, and human rights under Articles 3 and 8 ECHR, as well as paragraph 276ADE(1)(vi) of the Immigration Rules. It emphasised the necessity of separate, clear findings for each claim due to differing standards of proof, burdens of proof, and the nature of rights involved (absolute vs. qualified).

The court found that the FTT erred in law by considering the claims "in the round" rather than applying the relevant tests individually. The FTT failed to properly assess the appellant’s asylum claim, notably disregarding expert evidence and the appellant's vulnerability. It also failed to conduct a free-standing Article 3 assessment of the health claim, an error highlighted by the UT in earlier decisions.

The court noted the FTT's inadequate reasoning on the "very significant obstacles to integration" test under paragraph 276ADE(1)(vi), particularly its failure to explain why the appellant could not rely on family support in Morocco. The FTT also improperly conflated the Article 3 health claim with the integration test, neglecting the legal distinction between the two.

The UT's decision to remit the appeals to the FTT for redetermination was upheld, but the court criticised the UT for failing to recognize the appellant’s opposition to the SSHD’s appeal on the human rights claim and for not addressing substantive legal errors in the FTT’s reasoning.

Overall, the court stressed the importance of a logical, structured approach with separate legal assessments and findings for each claim, proper application of established case law, and clear reasoning supported by evidence. The failure to do so necessitated a fresh hearing before a differently constituted FTT with no findings preserved.

Holding and Implications

The court ALLOWED the SSHD’s appeal against the FTT’s decision on the human rights appeal and upheld the UT’s decision to remit the entire case to the FTT for redetermination with no findings preserved.

The direct effect is that the appellant’s asylum, humanitarian protection, and human rights claims must be reheard afresh by a different FTT judge with clear, separate consideration of each claim in accordance with legal principles and case law. The court emphasized that the matter should be case managed to avoid further delay and to ensure the preparation of an agreed list of issues for determination.

No new precedent was established; the decision reinforces the necessity for tribunals to apply appropriate legal tests distinctly and to provide clear, reasoned decisions addressing all relevant issues and evidence.