Reported Case

Judge says FtT must reconsider its dismissal of an appeal following failures and misunderstandings in a ruling handed down on the Secretary of State for the Home Department and Starkey (March 11, 2021).

Duncan Lewis Solicitors represented the respondent in the Court of Appeal in a challenge by the Home Office before Lady Justice Elisabeth Laing DBE.

The Secretary of State appealed from a decision of the Upper Tribunal (Asylum and Immigration Chamber) (‘the UT’). The UT had allowed the appeal of Starkey (‘the R’) from a decision of the First-tier Tribunal ((Asylum and Immigration Chamber) (‘the FtT’)). The UT held that the FtT had made material errors of law, and re-made the decision. The FtT had dismissed the R’s appeal from a decision of the Secretary of State on 25 July 2018 to refuse the R’s human rights claim and to deport him from the United Kingdom.

It is common ground that the R suffers from paranoid schizophrenia which is controlled by a drug of last resort, Clozapine. Other drugs had been tried over the years, but had not controlled his symptoms. The first issue on this appeal is whether the FtT erred in law in its approach to the evidence about the availability of treatment for R’s illness in South Africa.

The issues before the Court were:

i. The FtT made no material error of law in dismissing the R's appeal. The UT erred, therefore, in setting aside the decision of the FtT and in substituting its own decision.

ii. In any event, the UT itself erred in law in its approach to the application of section 117C (6) of the Nationality Immigration and Asylum Act 2002 ('the 2002 Act'). It failed to recognise that the threshold created by that exception is very high, and reached a decision which was not justified on the evidence.

The Court of Appeal, in respect of ground 1, held that the FtT had erred in law as they had failed to properly consider the expert evidence before it, and that the UT did not err in setting aside the decision.

In respect of ground 2, the Court of Appeal accepted the appellant’s argument on the basis that the UT misunderstood the evidence relating to the severity of the Respondent’s illness and the availability of medical treatment.

Matter was remitted back to FtT for reconsideration.


Our legal team: public law director Bahar Ata instructing Irena Sabic and Miranda Butler, of Garden Court Chambers.

Find full details of this case on Bailii’s website here.