Anonymised Summary of Court of Appeal Decision
Factual and Procedural Background
The Appellant appealed the First Tier Tribunal's ("Tribunal A") decision allowing the Respondent's appeal against a deportation order on Article 2 and Article 3 ECHR grounds. The Tribunal A decision (17 July 2023) was upheld by Tribunal B on appeal. The Appellant then obtained permission to appeal to this Court.
The Respondent is a national of The Country, born 1 February 1997, who grew up in The Province. The Respondent's father, an employee of the national army, was murdered in 2008. The Respondent arrived in The State as a minor and claimed asylum; initial protection claims were refused but discretionary leave was granted for three years. In 2013 the Respondent learned that remaining close family had died.
The Respondent alleges childhood trafficking and modern slavery, including sexual abuse during the journey to The State, and suffers from diagnosed complex post‑traumatic stress disorder and mild depression. The Appellant served notices of intention to deport and made a deportation order on 2 April 2019, noting the Respondent's criminal convictions, the most significant being a conviction for aggravated burglary and theft at The Court in January 2016 and a custodial sentence imposed by Judge Charles.
The Respondent appealed the deportation on human rights grounds under the 2002 Act. Tribunal A conducted a directions hearing requiring the Appellant to review extensive expert material provided by the Respondent, including reports from four named experts and a medico‑legal addendum. Tribunal A allowed the appeal on Article 2 and Article 3 grounds, finding that the Respondent was vulnerable, had been trafficked, was "Westernised" to some extent, and at risk of re‑trafficking and destitution on return. Tribunal B dismissed the Appellant's appeal from Tribunal A. The Appellant sought and obtained permission to appeal to this Court on points of practice and principle concerning assessment of real risk under Articles 2 and 3 and the sufficiency of reasons given by Tribunal A.
Legal Issues Presented
- Whether Tribunal A made errors of law in allowing the Respondent's appeal under Articles 2 and 3 by relying on general country conditions and levels of poverty rather than considering risks specific to the Respondent.
- Whether Tribunal A misdirected itself as to the required intensity of risk for an Article 3 destitution breach, by equating widespread poverty with a risk of "intense suffering" or significant reduction in life expectancy.
- Whether Tribunal A's reasoning was sufficiently clear and adequate for appellate review in light of the specialist nature of the Tribunal and unchallenged expert evidence.
Arguments of the Parties
Appellant's Arguments
- Tribunal A wrongly treated general country risks and poverty as sufficient to establish Article 2/3 breaches instead of focusing on the Respondent's particular circumstances.
- Tribunal A failed to explain why the Respondent in particular was at real risk of re‑trafficking a decade after the earlier trafficking findings.
- Tribunal A misapplied the Article 3 destitution test by equating widespread poverty statistics with the high threshold required (real risk of intense suffering or significant reduction in life expectancy).
- Tribunal A's findings on vulnerability and Westernisation lacked explicit explanation of how those factors would produce the asserted risks on return.
Respondent's Arguments
- The Appellant's grounds amount to disagreement with Tribunal A's factual findings rather than errors of law; Tribunal A properly considered the Respondent's individual circumstances.
- Tribunal A relied on substantial unchallenged expert evidence specific to the Respondent (concerning re‑trafficking risk, Westernisation, access to accommodation and work, and mental health) and therefore had no duty to rehearse detailed reasoning rejecting contrary evidence.
- The Article 3 destitution threshold was correctly applied by reference to Ainte and the combined effect of general conditions and the Respondent's particular vulnerabilities.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Soering v UK (1989) 11 EHRR 439 |
Removal breaches Article 3 where there are substantial grounds for believing there is a real risk of inhuman or degrading treatment. |
The court cited Soering as the governing authority on the real risk threshold under Article 3 for removal cases. |
| Ainte (material deprivation - Art 3 - AM (Zimbabwe)) [2021] UKUT 203 (IAC) |
Test for Article 3 engagement by extreme material deprivation: whether conditions create a real risk of intense suffering or significant reduction in life expectancy. |
The court relied on Ainte to note that widespread poverty alone is insufficient; the modified N test applies to assess destitution risk. |
| AM (Zimbabwe) [2020] UKSC 17 |
Referenced in relation to the modified N test for Article 3 deprivation claims. |
Used to explain the legal threshold for destitution-based Article 3 claims. |
| Kapikanya [2025] EWCA Civ 987 |
Approach to appellate scrutiny of FTT reasoning; sets out propositions on restraint and inference from Tribunal reasoning. |
The court treated Kapikanya as authoritative on reviewing specialist tribunal reasoning and applied its propositions. |
| AH (Sudan) v Secretary of State for the Home Department [2007] UK HL 49 [2008] 1 AC 678 |
General proposition that UT should not find an error of law merely because it might have reached a different factual conclusion. |
Cited in support of the principle of restraint on appellate review of specialist tribunal factual decisions. |
| MA (Somalia) v Secretary of State for the Home Department [2010 UKSC 49] [2011] 2 All ER 65 |
UT should be slow to infer that a point not expressly mentioned by the FTT was not taken into account. |
Cited to support inference from Tribunal A's decision that relevant points had been considered even if not expressly set out. |
| R (Jones) v First Tier Tribunal and Criminal Injuries Compensation Authority [2013] UKSC 19 [2013] 2 All ER 625 |
UT should exercise judicial restraint and not assume misdirection because not every step in reasoning is fully set out. |
Relied upon to justify accepting compressed reasoning from Tribunal A as sufficient. |
| UT (Sri Lanka) v The Secretary of State for the Home Department [2019] EWCA Civ 1095 |
Issues may be set out directly or by inference in tribunal decisions. |
Cited to support reading Tribunal A's decision by inference where appropriate. |
| A4 (Nigeria) v Secretary of State for the Home Department [2020] EWCA Civ 1296 [2020] 4 WLR 145 |
Tribunal judges are to be taken to be aware of relevant authorities and applying them unless language shows otherwise. |
Used to reinforce that Tribunal A was entitled to apply legal authorities without citing them expressly. |
| TUI UK Ltd v Griffiths [2025] AC 374 [2023] UKSC 48 |
Difficulty of a party opposing unchallenged expert evidence; consequences when experts are not challenged by cross‑examination. |
Cited to explain Tribunal A's position that unchallenged expert evidence weighed strongly in favour of the Respondent and placed the Appellant in difficulty. |
Court's Reasoning and Analysis
The Court reviewed Tribunal A's findings and the grounds of appeal. It emphasised the general principle of appellate restraint when reviewing specialist tribunal fact‑finding and reasoning (as summarised in Kapikanya and the authorities cited therein). The Court noted that Tribunal A's reasoning was compressed but sufficient to explain its decision.
The Court focused on the evidential matrix before Tribunal A: substantial, specific expert reports concerning the Respondent's vulnerability, risk of re‑trafficking, and Westernisation; a conclusive decision by Authority A finding prior trafficking; and the Appellant's failure to challenge those expert reports by cross‑examining the experts. Given that evidence was unchallenged, Tribunal A was entitled to accept it. The Court observed that, standing alone, Tribunal A's findings on destitution might have been tenuous, but they were not determinative because the combination of unchallenged expert evidence specific to the Respondent (re‑trafficking risk and risk tied to Westernisation and vulnerability) provided a lawful basis for allowing the appeal on Articles 2 and 3.
The Court concluded that no error of law was made by Tribunal A in its assessment and that Tribunal B was correct to uphold Tribunal A's decision.
Holding and Implications
DISMISSED — The Court dismissed the Appellant's appeal.
Implications: The effect is that the determinations of Tribunal A (allowing the Respondent's appeal on Articles 2 and 3) and Tribunal B (upholding Tribunal A) remain in force. The Court emphasised the importance of challenging expert evidence at tribunal hearings if the opposing party seeks to avoid its weight; it applied established appellate restraint principles and did not identify any new legal test or precedent beyond applying existing authorities.