AL v Secretary of State for the Home Department - Immigration Appeal

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  AL   v Secretary of State for the Home Department [2026] EWCA Civ 370 (31 March 2026)

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[2026] EWCA Civ 370 | | |
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| | | Neutral Citation Number: [2026] EWCA Civ 370 |
| | | Case No: CA-2024-002904 |
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Ruddick
Upper Tribunal Judge Rintoul
UI-2024-002622

| | | Royal Courts of Justice
Strand, London, WC2A 2LL |
| | | 31 March 2026 |
B e f o r e :

PRESIDENT OF THE FAMILY DIVISION
LADY JUSTICE ELISABETH LAING
and
LORD JUSTICE HOLGATE

Between:
| | AL
(by her litigation friend, CB) | Appellant |
| | - and - | |
| | SECRETARY OF STATE FOR THE HOME DEPARTMENT | Respondent |

**David Jones and Emma Fitzsimons (instructed by Wilson Solicitors) for the Appellant
Paul Erdunast (instructed by the Treasury Solicitor) for the Respondent

Hearing date: 5 February 2026
Written submissions on 12 March 2026**

HTML VERSION OF APPROVED JUDGMENT ____________________

Crown Copyright ©

3. This judgment was handed down remotely at 11.00 am on 31 March 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
5. .............................
7. Lady Justice Elisabeth Laing:
9. Introduction
10. The Appellant ('AL') is a national of the Democratic Republic of the Congo ('the DRC'). She came to the United Kingdom with six months' leave to enter as a visitor in February 2020. She claimed asylum within two months of her arrival. She is still here. The Secretary of State refused her asylum and other claims in the Decision. While AL has been in the United Kingdom, her health has deteriorated, eventually to the extent that she sought to resist her removal, not only on asylum grounds, but on the grounds that her removal to the DRC would breach article 3 of the European Convention on Human Rights ('the ECHR'). She also resisted removal on article 8 grounds.
13. She appealed against the Decision to the First-tier Tribunal (Immigration and Asylum Chamber) ('the F-tT'). The F-tT dismissed her appeal in determination 1. The F-tT dismissed her protection claims. It held in paragraph 256 of determination 1 (see paragraph 61, below) that AL had arrived in the United Kingdom for a temporary purpose but had never intended to leave and that her protection claim was not genuine. It also dismissed her article 3 claim based on health grounds and her article 8 claim. AL appealed to the Upper Tribunal (Immigration and Asylum Chamber) ('the UT'). The UT also dismissed her appeal in determination 2, holding that there was no error of law in determination 1. She now appeals to this court with the leave of Phillips LJ. Paragraph references in this judgment are to paragraphs of determination 1 or determination 2 as the case may be.
16. On this appeal, AL was represented by Mr Jones and by Ms Fitzsimons. Mr Jones did not appear in the UT, but Ms Fitzsimons did. AL was represented by different counsel in the F-tT, Miss Capel. The Secretary of State was represented by Home Office Presenting Officers in the F-tT and in the UT. In this court, she had the great advantage of being represented by Mr Erdunast. I have not summarised his submissions, but his analysis of the issues is reflected in this judgment.
19. AL's essential argument on her appeal to the UT and to this court, as summarised in paragraph 8 of determination 2, was that the F-tT had failed to take into account three factors which were relevant to whether or not her removal to the DRC would cause her 'intense suffering' and would therefore breach article 3 on health grounds. They were
21. > > 1. the effect of removal from her family carers in the United Kingdom, and, in particular, her daughter, PE;
22. > > 2. the effect of the process of removal itself; and
23. > > 3. the impact on her dignity of being cared for in the DRC by male relations.
24. In her appeal to this court, she argued that the UT had erred in law in holding that AL had not, in the context of article 3, raised, or put evidence before the F-tT about, the impact on her health of being separated from her family in the United Kingdom. Her second ground of appeal was that the UT erred in law in upholding the F-tT's approach to AL's article 8 claim. I will refer to the three points I have described in this paragraph as 'the three points'.
26. For the reasons given in this judgment, I would dismiss this appeal. In short, the UT's conclusion that AL did not put her article 3 claim to the F-tT as she now puts it was correct, and the UT did not err in law in upholding the F-tT's approach to AL's article 8 claim.
29. Mr Erdunast helpfully referred in his submissions to the recent decision of the UT in Lata (FTT: principal controversial issues) [2023] UKUT 00163; [2023] Imm AR 1416 (' Lata '). This is a case in which, if my Lords agree, I consider that this court should endorse that decision. I also consider, subject to the same proviso, that this court should say something about a qualification to the approach in Lata made by this court in paragraph 35 of AAZA (Yemen) v Secretary of State for the Home Department [2025] EWCA Civ 705 (' AAZA ').
32. The facts
33. I have taken the facts from determination 1, which is admirably detailed and careful. Judge of the First-tier Tribunal Bagral ('the Judge') reserved her decision. Determination 1 is over 250 paragraphs long. The issues on this appeal are narrow, so I have kept my summary to the bare essentials. I will only refer to the significant evidence, and to the heart of the F-tT's reasoning. I will only consider AL's asylum and protection claims to the extent that they are relevant to the issues on this appeal.
36. AL's arrival in the United Kingdom and her asylum claim
37. AL arrived on 28 February 2020 with six months' leave to enter as a visitor (see the discussion in the transcript of the F-tT hearing). That leave expired on 31 July 2020. She claimed asylum on 29 April 2020, some two months after her arrival in the United Kingdom. Her claim was based on the facts that she was mixed-race and had made a video criticising the government of the DRC for its treatment of mixed-race children.
40. The new matters
41. AL's family situation evolved during proceedings (paragraph 6). She amended her grounds of appeal to raise matters which had not been considered by the Secretary of State in the Decision. The F-tT asked the Secretary of State to consider those issues and to consent to their introduction into the appeal.
44. AL's family in the United Kingdom
45. As the F-tT recorded, AL has four children in the United Kingdom. The F-tT had evidence about three of them. They were settled in the United Kingdom with their families.
48. AL's health
49. AL had suffered from hypercholesterolaemia and had had mini-strokes. In February 2021 she had been assessed by her own GP as fit for her asylum interview. Dr Heke, AL's expert witness, assessed AL in July 2022 and again in March 2023. In her report of October 2022, Dr Heke said that AL had a serious neurocognitive disorder and lacked capacity to make informed decisions. In an additional report in April 2023, Dr Heke was more confident that AL had a serious neurocognitive disorder. Her view was also that AL then lacked the mental capacity to engage with court or legal proceedings.
51. Further procedural matters
52. The Secretary of State consented to the new matters. The F-tT appointed CB as AL's litigation friend. The Secretary of State reviewed the case twice before the F-tT hearing.
55. AL's skeleton argument in the F-tT
56. AL was represented for her appeal in the F-tT. Her skeleton argument for the F-tT hearing is dated 21 October 2022 and was signed by the counsel who was then representing AL. Different counsel represented her at the F-tT hearing. AL instructed two experts for the F-tT hearing, Dr Heke and Dr Kodi.
59. Paragraph 16 of the skeleton argument said there were four issues.
61. > > 1. Was AL at real risk of persecution by the state on account of her imputed political opinion?
62. > > 2. Would she face a detention on her return to the DRC in conditions breaching article 3 of the ECHR?
63. > > 3. Would her removal to the DRC breach article 3 because of the severity of her health conditions and the lack of treatment in the DRC?
64. > > 4. Were there exceptional and/or compelling circumstances such that AL's removal would be a disproportionate interference with her rights under article 8?
65. > >
66. Paragraphs 17-31 of the skeleton argument dealt with the asylum claim. Paragraphs 32-39 dealt with the article 3 claim. Paragraph 33 described the conclusion of Dr Heke's video assessment of AL in July 2022. Paragraph 34 quoted her belief that if AL did not get the support of her daughter/current 'level of support' her 'functioning' would deteriorate rapidly, and she was 'hence very vulnerable'. Paragraph 35 quoted Dr Heke's opinion about how AL would cope if she were returned to the DRC, without the support of her daughter/without support. Paragraph 36 referred to Dr Heke's view that AL depended on her daughter for her care needs, that she could not cope alone 'with no support in the DRC', and that she would 'very quickly deteriorate'.
69. Paragraph 37 quoted Dr Kodi's evidence about the availability of treatment in the DRC. The conclusion, in paragraph 39, was that AL 'would be unable to access support for her care needs and/or medical treatment for her mental health conditions in the DRC and would therefore suffer a serious, rapid irreversible decline in her health resulting in intense suffering in breach of Article 3 ECHR'.
72. Further procedural developments
73. AL's solicitors wrote to the F-tT on 30 May 2023. Paragraph 2 of that letter referred to directions from the F-tT after the case management hearing on 30 March 2023. The F-tT had directed that AL was to serve amended grounds by 29 May 2023. The purpose of the letter was to set out AL's position in the light of those directions. The solicitors asked the F-tT to deal with four matters on the papers, and for the Secretary of State to review the case by 12 June 2023. The four matters were:
75. > > 1. the appointment of a litigation friend;
76. > > 2. permission not to tender AL for cross-examination because she did not have capacity;
77. > > 3. the amendment of the grounds of appeal to include an argument that AL's lack of capacity made her a member of a particular social group, and to ask for the Secretary of State's consent to that amendment if it was a new matter.
78. > > 4. permission to rely on the birth of a new grandchild as part of AL's article 8 claim.
79. > >
80. Paragraph 19 of the letter also indicated a wish, in relation to point 3, to raise a further issue. Paragraph 19 referred to AL's skeleton argument dated 12 October 2022, and quoted paragraph 16. AL wished to add a risk of persecution and whether AL was 'at real risk of serious harm and breach of article 3 as a mentally ill person on return to the DRC'. Paragraph 21 of the letter added, 'and, further, in the alternative, the evidence shows that mentally ill/mentally disabled people are liable to persecution and ill-treatment (such as chaining) contrary to Article 3 ECHR'. Paragraph 21 referred to four aspects of the evidence of Dr Kodi in paragraphs 20-23 of his report. Paragraph 22 referred to what was said to be consistent background evidence.
83. The hearing
84. The hearing lasted a day. AL and the Secretary of State were represented (see paragraph 3, above). The hearing was a hybrid hearing. The parties were at Taylor House and the Judge attended by CVP. AL attended the hearing, but sat outside and did not give evidence, with the eventual agreement of the Secretary of State. Three of her children, CB, PE, and CN, gave evidence. There were experts' reports for AL, from Dr Heke (two) and Dr Kodi (one). Neither expert seems to have attended the hearing or to have been cross-examined.
87. The F-tT listed five issues in paragraph 9. Three concerned AL's asylum/protection claim. The last two were whether AL's removal would breach article 3 'due to the severity of her health conditions and the unavailability of treatment in the DRC', and whether there were 'exceptional circumstances such that' her removal would be a disproportionate interference with her article 8 rights.
90. The evidence
91. The F-tT summarised the evidence of AL's witnesses in paragraphs 30-93. AL's two witness statements were dated 12 January 2021 and 19 October 2022. The first was before her substantive asylum interview and the second was made shortly before the date of Dr Heke's second medical report, but well after the date of the assessment on which that report was based. AL had not been cross-examined at the hearing, with the agreement of the Secretary of State (paragraph 25).
94. AL had been born in the Belgian Congo, when it was still a colony. Her mother was Congolese. Her father was a white Belgian national. He abandoned them after her birth, bringing shame on her family. AL has had no contact with him. She was bullied as a child because she looked different from the other children. She was sad. Her mother then married a man from her tribe. They had seven children, of whom four survived to adulthood. The family was well off but her step-father would not pay for her schooling beyond the age of 15 or 16.
97. She married a man from the same tribe when she was about 17. They settled in Kinshasa and had eight children. She was also a mother to her younger step-sister whom she had raised from the age of five after the death of her stepfather. In about 2011, her eldest son's wife died. Their three children came to live with her. Their financial circumstances were good and they 'were able to live a normal middle class existence' (paragraph 34).
100. Four of her children left the DRC in the civil war and came to the United Kingdom. They included CB, PE, and CNN.
103. Her evidence was that her husband had received two text messages in 2019 which threatened her. He had died in July 2019. She had received two such messages herself in November 2019. Her children had suggested that she should visit them in the United Kingdom. She arrived in February 2020. She was 'worried and afraid' about her situation but had 'no intention of claiming asylum'. She could not uproot herself and abandon her grandchildren in the DRC. Two men came to her house in Kinshasa twice in March 2020. They had a summons for her each time. They spoke to a grandchild and to PR, who was looking after her grandchildren. She told them to leave the house. They went back from time to time and neighbours told them that the men still came, banged on the gate and said that they were looking for her. Another time, the men left a third document; an arrest warrant with a date in April 2020. She claimed asylum on 12 or 13 March 2020. She received two more threatening texts in July 2020.
106. Her second witness statement responded to the Decision. It was less detailed than the first. She was having problems with her memory. She was worried about her blood pressure, found it hard to sleep, had breathing problems, back pain and sleep apnoea. She was taking medication for her blood pressure and mental problems.
109. CB's evidence was that he was born in Kinshasa. He lives with his wife and three children in the United Kingdom. He worked as a security officer and free-lance interpreter. He was educated to degree level in the DRC; he fled in the last year of his university dissertation. He has a degree in criminal law but was not a practising lawyer. He claimed asylum, was given indefinite leave to remain and has since been naturalised as a British citizen.
112. He did not live with his mother but saw her regularly. Her mental and physical health had got much worse. The F-tT summarised his evidence about her condition in paragraph 69. She had significant memory loss and forgot things easily. Things had to be repeated to her many times. She often repeated herself, became stressed and panicked easily. He spoke to her every day on the telephone. His sisters mostly looked after AL. He took her to the hospital and helped with other jobs. He took her for a walk or for a drive on Sundays. She relied on her children in the United Kingdom and would not be able to look after herself in the DRC.
115. In cross-examination, he said that AL had memory loss and often spoke to herself. He could not say if he would continue to ring her if she was in the DRC, because she was at risk and he would not know if she was alive or not. He did not know where his siblings in the DRC were. He had some contact with N, his youngest brother, but N could not help AL.
118. In re-examination he said that when he had spoken to N, N had asked for help with financial problems. He had no job and lived with a friend in Kinshasa. CB had lost contact with his other siblings because of the war: 'there is no contact'. Most of them were in the east of the DRC. When he had lost contact with his brother, H, H had been living in Kinshasa. That was three or four years ago.
121. PE left the DRC in 1992 to join her partner in the United Kingdom. He was a refugee. They were both British citizens by the time of the hearing and had four children. PE was too ill to work. Her mother had lived with her since 2019. AL got financial support from NASS (the National Asylum Support Service) but it was not enough. PE helped AL 'in almost every aspect of her life'. AL forgot 'things all the time and often [did] not know where she [was] or what she [was] doing'. There was 'a lot of pressure' on PE to look after AL. They were very attached to each other.
124. She helped AL with everyday tasks. AL had become more dependent on PE and on her siblings after her mini strokes. She could not leave AL alone in the house. AL's memory had got worse. She had got much worse since October 2022. PE slept in the same room as her mother to keep an eye on her. She described four occasions when AL cut her own hair because she was afraid of the authorities in the DRC (paragraph 78).
127. PE had fibromyalgia and found it hard to look after AL at times (paragraph 89). She would then take AL to CB's house. She could not attend a hearing on 12 September 2023 because she had gone to the DRC on 12 July 2023 for (traditional) treatment. It did not work. CB and her son paid for the trip. CN looked after AL as she was on maternity leave. PE was depressed and took anti-depressants.
130. In cross-examination PE had said that she lived with her three children and AL. She had been to Belgium for a day. She believed her other siblings were in the DRC, but did not know. When pressed she said that AL's children in the DRC could not support her.
133. In re-examination, she explained that N was 'a small boy'. She did not know his situation. He could not do what she did to care for AL as a woman. Her mother's situation made her very emotional and it was hard for her to talk about it. She did not know her siblings' situation and AL would not get the same treatment in the DRC. She had no direct contact with N or her other siblings.
136. When asked by the Judge, PE clarified that N was in fact 28 or 29.
139. CN came to the United Kingdom to study in 1997. Before that she had lived with her mother, father and siblings. She was a British citizen. She had two daughters and was pregnant with a third child. Before AL had come to the United Kingdom, they had been in regular contact by telephone. AL spent a lot of time with her and was particularly close to her younger daughter. She saw AL almost every day as they live nearby. AL was very nervous and had panic attacks and could not remember them.
142. She believed that AL was showing signs of dementia. She was forgetful and often repeated herself. CN monitored AL's medication, blood pressure and food. AL could dress herself, but her clothes had to be laid out for her as she forgot where she had put her belongings.
145. In cross-examination she said that her mother was no longer able to use a telephone so could not communicate with one if she were to return to the DRC. CN had siblings in the DRC. She did not believe they could help because 'they do not have what we have here'.
148. The F-tT summarised the Secretary of State's case in paragraphs 94-96.
151. The F-tT noted that it had to assess AL's credibility. It considered the relevant principles carefully. It is not suggested that it misdirected itself on this aspect of the case. It rightly treated AL's failure to give evidence as a neutral factor in that assessment. It also, rightly, treated AL as a vulnerable adult (paragraph 114).
154. The F-tT rejected AL's protection claim based on political opinion for the reasons it gave in paragraphs 116-171, and her protection claim based on being a mentally disabled person in paragraphs 172-217. It considered and rejected her article 3 health claim in paragraphs 218-234, and her article 8 claim in paragraphs 235-257.
157. During the course of that consideration, the F-tT made several findings of fact which are relevant to the issues on this appeal.
160. In paragraph 150, the Judge rejected evidence that AL had no contact with her children and grandchildren in the DRC. Her January 2021 witness statement had referred to such contacts; there had been contact in April and August 2020. In paragraph 160 the Judge did not accept that AL's mini-stroke in July 2020 was caused by stress from threats by the authorities in the DRC (see also paragraphs 161 and 162). The F-tT had taken into account Dr Heke's evidence; but Dr Heke had assumed that AL's account of the threats was true. The Judge rightly said that credibility was a matter for the F-tT to decide, not for Dr Heke. AL had had two strokes before the period during which, on her account, she had been threatened: in 2016 and 2019. There were other factors which might have caused or contributed to the strokes.
163. The Judge made findings about AL's contacts with her children in paragraphs 163-169. She repeated that AL and the witnesses had not been candid about the whereabouts of, and contacts with, her children in the DRC. She had four sons and a sister in the DRC; she had adopted her sister and raised her from childhood. With her entry clearance application she had submitted photographs with at least two sons and possibly eight grandchildren, and evidence of financial support from a son in the DRC. That evidence 'suggests that [AL] sought to paint a picture that she was surrounded by and supported by at least some of her children and grandchildren' (paragraph 164).
166. The current evidence, however, was 'thin to say the least'. AL's witness statements did not 'adequately deal with the current circumstances, whereabouts and contacts with her children and sister in the DRC.' Her evidence in her asylum interview was 'vague and lacking in detail'. The same was true of the other witness statements. In paragraphs 166-168 the Judge summarised the evidence of the witnesses in cross-examination. An example of the defects in that material is the evidence of PE. She was vague, at first, and said she did not know where her siblings were. 'It was only when' she was told that CB had said that N was in the DRC, 'did she then assert that her siblings in the DRC could not support [AL]'. CN had said that while she did have siblings in the DRC 'she did not believe that they could assist' AL. In her initial evidence she 'did not give the impression that she had no contact with her siblings in the DRC, or that she was unaware of their whereabouts'. It was only in re-examination by Miss Capel that she 'belatedly' said, 'like PE, that she did not have direct contact with her siblings in the DRC' (paragraph 168).
169. When the Judge considered the evidence 'in totality', she did not accept that the witnesses had 'been entirely candid about the family circumstances in the DRC'. She was 'satisfied' that [AL] and her children in the UK have contact with the family in the DRC (paragraph 169). In paragraph 171, the Judge said that she was not satisfied to the lower standard that AL had been 'sent threatening messages, summonses, and an arrest warrant'. Her evidence was untrue and not supported by reliable evidence. AL was not a refugee.
172. By the time of Dr Heke's second report, AL had still not had a definitive assessment for dementia. There was, therefore, still no conclusive diagnosis (paragraph 188). AL's memory had got worse. AL got tired and cross when asked questions. She did not know what day it was, the date or the time, or where she was. She had a greater level of need. She depended entirely on PE, and other members of her family when PE could not manage because of her own illness. She needed prompting. Dr Heke believed that she could not fend for herself (paragraph 190).
175. In paragraph 194 the Judge said that she was satisfied that AL had a mental disability. Her disability was so great that she lacked capacity and could not live independently. The Judge further described AL's condition in paragraph 197. In paragraph 215, the Judge found that AL 'has family in the DRC. They will be able to meet her at the airport and assist her?'
178. In paragraph 219, the F-tT found that AL was a 'seriously ill person'. In paragraph 220 the Judge stated the test which an appellant has to meet in order to show that her removal would breach article 3 because of her serious illness. She said that AL had to show that 'the evidence is capable of demonstrating that there are substantial grounds to believe that as a seriously ill person, she would face a real risk of being exposed to a serious, rapid and irreversible decline in her state of health resulting in intense suffering ?on account of absence of appropriate treatment in the DRC or the lack of access to such treatment'. AL does not suggest that the Judge misstated that test. The Judge was not 'satisfied that the threshold test has been met'. AL had not shown she would be caused 'intense suffering' on account of a lack of 'appropriate medical treatment in the DRC or the lack of access to such treatment'.
181. Dr Heke's assessment was that AL could not cope in the DRC and without support her health would worsen very quickly. Dr Heke's opinion was that because AL could not fend for herself, and would not have PE's help with her care needs, her mental health would get significantly worse. She would become severely depressed. The Judge found that the treatment she needed was available in the DRC. She could afford it (paragraph 223).
184. The crux of her case, said the Judge, was that AL would not be able to get treatment because, according to Dr Heke, she could not cope alone in the DRC; without support she would get worse 'very quickly', and her depression would become severe, as she would not have the motivation to help herself; she needed 'regularised and consistent support on a practical and emotional basis'. Dr Heke's opinion had to be viewed in the light of her view that AL's mental health problems and her mini-strokes were the result of the threats she had received, and that it was difficult to know to what extent either had contributed to her current condition. The Judge had not accepted that AL had been threatened. Dr Heke's view was 'also based on her understanding and acceptance of [AL's] account that she will have no support in the DRC, which I also do not accept' (paragraph 232).
187. Even if N could not support AL, she had three other sons '(who may have female partners) and a sister in the DRC'. The evidence about their circumstances was 'inadequate', and 'I am therefore not satisfied that they could not either individually or collectively provide [AL] with practical and emotional support and the care, intimate or otherwise, that she requires' (paragraph 233). The Judge's conclusion was that the evidence was 'not sufficient to establish that [AL] will be subject to intense suffering in consequence'. AL had not shown that 'her removal from the UK reached the threshold that would lead to a breach of Article 3 EHCR on the basis of her medical condition' (paragraph 234).
190. The Judge then considered AL's article 8 claim. AL did not rely on the Immigration Rules (HC 395 as amended) ('the Rules'). At 'the tail end of her submissions' Miss Capel had suggested that there would be 'very significant obstacles' to AL's integration on return to the DRC. AL could not cope on her own and was 'entirely dependent on PE' (paragraphs 235 and 237). The Judge said that those were 'limited factors', but she must 'nonetheless reach a broad evaluative judgment that includes an assessment of [AL's] likely situation on return' (paragraph 237). The Judge made such an assessment in paragraphs 238-253.
193. In the course of that detailed and careful assessment, the Judge made some findings of fact which are also significant to the issues on this appeal. AL was 72. She had led a 'financially stable life' in the DRC. She had a 'large family': eight children and an adopted sister. Her four sons and sister were still in the DRC. She also had at least three grandchildren in the DRC who had lived with her before she came to the United Kingdom. The photographs she had submitted with her visa application 'indicate that there are likely to be more'. PE had taken responsibility for AL's care in the United Kingdom, but AL had 'not established that she cannot be cared for by her children and sister in the DRC. PE does not provide specialised care which only she can provide'. AL would not be on her own in the DRC without family support. The 'factors ?identified as obstacles to integration do not therefore arise' (paragraph 238).
196. AL would have access to care and treatment and would not be destitute. She had a home to return to 'as well as a rental property'. She was familiar with the DRC, and with the language and culture. The F-tT did not accept that AL's mental health would get worse, because it had already rejected the evidence that she had a subjective fear of the authorities and that AL would be left to fend for herself. Even if AL thought it would be inappropriate and shameful to ask her grandsons for help, she would have the support of her children and sister. It would be difficult for her to adjust at first, but the F-tT was satisfied that she would do so 'within a reasonable period' with the help of her family in the DRC and with the emotional and financial support '(if required)' of her children in the United Kingdom. Those difficulties did not amount to 'very significant obstacles' (paragraph 239). AL did not therefore meet the requirements of paragraph 276ADE(1)(iv) of the Rules (paragraph 240).
199. The Judge then considered AL's claim outside the Rules. AL relied on PE and her children for care and support in the United Kingdom. She had a 'close family relationship' with her family in the United Kingdom. She had 'a level of dependency on her adult children which is real, committed and effective' and went beyond the usual ties between adults (paragraph 243). Her removal would interfere with her family and private life. The F-tT 'proceeded on the basis' that the interference would be in accordance with the law and that it pursued a legitimate aim. The issue was whether it was proportionate (paragraph 244). In paragraph 245, the Judge summarised, from AL's skeleton argument, the factors on her side of the balance. They included AL's 'level of dependency on PE'.
202. On the public interest side of the balance were the factors which sections 117A-117D of the Nationality, Immigration and Asylum Act 2002 ('the 2002 Act') obliged the F-tT to consider (paragraph 246). In paragraph 247, the F-tT acknowledged that 'There is no doubt that' AL had 'a close relationship' with PE, and explained why, and how AL's dependency had increased because of her mini-strokes. The extent to which AL would get worse without the support she was getting in the United Kingdom, 'particularly PE?cannot be considered in isolation'. The Judge repeated that she had not accepted AL's account of her fears on return or 'the reinforcement of those fears by PE in her witness statement' (paragraph 248). While the Judge had accepted that AL was seriously ill, the suggestion was that 'only PE can cater to' her care needs. The Judge noted that PE had nevertheless felt able to go to Belgium for a short visit and to travel to the DRC for much longer (paragraph 248).
205. Having considered the evidence 'holistically' it indicated that while PE mostly cared for AL because they lived together, AL was used to being cared for by her other children. 'I do not accept the picture that is drawn that only PE can care for AL' 'or, alternatively, that [AL] will only allow PE to care for her' (paragraph 249). The Judge had 'no doubt that' AL would 'be distressed by return to the DRC', and that her children would also be upset. The F-tT had taken that into account (paragraph 250). She would, however, have the support of her sister and children in the DRC. The F-tT was not 'satisfied that they could not collectively provide the care and support' which AL needed. Her family in the United Kingdom could visit her in the DRC, if they chose, and keep in contact by other means. For example, PE had recently visited the DRC without any problems (paragraph 252). There would be a period of distress and disruption, but it would not cause 'unjustifiably harsh consequences'. The F-tT had been 'troubled by the evidence in this case' for the many reasons it had given in the course of determination 1 (paragraph 253).
208. The maintenance of effective immigration controls was in the public interest. The F-tT was required to attach 'little weight' to AL's private life established while she had 'precarious leave'. There was no evidence that AL spoke English which also gave weight to the public interest. None of those factors was decisive of proportionality (paragraph 254). AL was considered to be financially independent, which was a neutral factor (paragraph 255). The F-tT took into account AL's immigration history. She had arrived in the United Kingdom 'with limited leave for temporary purposes, and I am not satisfied that she ever intended to leave the UK. I take into account that her protection claim was not genuine and that she does not meet the Immigration Rules' (paragraph 256). The F-tT concluded that the Secretary of State's refusal was not disproportionate, and that AL's removal would not be contrary to article 8 (paragraph 257).
211. Determination 2
212. AL appealed to the UT. There were four grounds of appeal initially. The UT gave her permission to appeal on two of the grounds in her notice of appeal.
214. > i. 'Error in assessing Article 3 ECHR "intense suffering" ? separation of an elderly Appellant with a dementia from her primary carer and subjection to enforced removal to DRC' and
215. > ii. 'Article 8 ECHR ? Error in assessment of material evidence for the purposes of very significant obstacles and proportionality'.
216. >
217. The UT recorded that both grounds of appeal 'were based on the judge's purported failure properly to take into account three discrete factors, which were said to be relevant both to the assessment of whether [AL's] removal would cause her "intense suffering" for the purposes of Article 3, as now outlined in AM (Article 3;health cases) Zimbabwe 2022] UKUT 00131 (IAC) and to the assessment of whether her removal would be inconsistent with the UK's obligations under Article 8 ECHR'. They were:
219. > > 1. the effect of separation from her family in the United Kingdom, and in particular from PE;
220. > > 2. the effect of the process of removal itself; and
221. > > 3. the impact on AL's dignity of having to rely on male relatives in the DRC for her intimate care needs.
222. > >
223. Mr Jones gave great emphasis to the UT's agreement, in paragraph 12, with AL's counsel's submission that the Judge had not considered 'the impact of separation from her UK based primary care network or of the removal itself when deciding [AL's] Article 3 health claim'. The UT referred to paragraphs 221-222 and 223-234 of determination 1. He also emphasised paragraph 13, in which the UT said that if AL's health claim had relied on factor 1 or factor 2, it might well have been an error of law for the Judge not to have considered those factors.
226. In paragraph 16 of determination 2, the UT recorded that AL's counsel had accepted at the UT hearing that there was 'no evidence at all that the issue of the impact of removal itself was raised below'. The UT did not consider that AL had relied in the F-tT on the other issues on which she now relied. But the F-tT had considered, and made findings about, the third factor (see paragraph 62.3, above) (paragraphs 19 and 20 of determination 2). The UT added, in paragraph 21, that, even if the F-tT had erred in this respect, 'the claimed psychological consequences of this would not have approached the very high standard of "intense suffering" set out in the Article 3 caselaw'.
229. The UT dismissed both grounds of appeal. The reasons of the UT are appropriately concise and to the point. Moreover, if the F-tT did not err in law in the respects alleged, the UT did not err in law in dismissing AL's appeal.
232. R (Robinson) v Secretary of State for the Home Department
233. The procedural context for R (Robinson) v Secretary of State for the Home Department [1998] QB 929 (' Robinson ') was an application for permission to appeal to the tribunal which was the predecessor of the UT from the predecessor of the F-tT (the special adjudicator). The issue was whether the tribunal was obliged to give permission to appeal on the basis of a point not made to the special adjudicator. A linked issue was whether a High Court Judge was obliged to give permission to apply for judicial review of a refusal by the tribunal of permission to appeal in relation to a point not taken in the notice of appeal to the tribunal (paragraph 945G-H).
236. This court held, at paragraph 945E-F, that it is the duty of appellate authorities 'to apply their knowledge of Convention jurisprudence to the facts established by them when they determine whether it would be a breach of the Convention to refuse an asylum seeker leave to enter as a refugee, and that they are not limited in their consideration of the facts by the arguments actually advanced by the asylum seeker or his representatives'. This court then considered the circumstances in which it might be appropriate for the tribunal to give permission to appeal on the basis of an argument not run in before the special adjudicator, or for a High Court Judge to give permission to apply for judicial review in relation to a point not taken in the notice of appeal to the tribunal.
239. The appellate authorities are not obliged to search for new points, this court said. 'If there was a readily discernible and obvious point of Convention law which favours the applicant although he has not taken it, then the special adjudicator should apply it in his favour, but he should feel under no obligation to prolong the hearing by asking the parties for submission on points which they have not taken but which could properly be categorised as "merely arguable" as opposed to "obvious". Similarly, if when the tribunal reads the special adjudicator's decision there is an obvious point of Convention law favourable to the asylum-seeker which does not appear in the decision, it should grant leave to appeal. If it does not do so there is a danger that this country will be in breach of its obligations under the Convention. When we refer to an obvious point, we mean a point which has strong prospects of success if it is argued. Nothing less will do' (paragraph 946B-D).
242. The principle in Robinson is a narrow principle. It is limited to points of refugee law which favour a person who claims to be a refugee, and which are 'obvious' and arguable with 'strong prospects of success'. The reason for that principle is that it is necessary to enable the United Kingdom to comply with its obligations under the Refugee Convention.
245. The Practice Direction of the Senior President of Tribunals
246. On 13 November 2022, the Senior President of Tribunals issued a Practice Direction for the F-tT ('the Practice Direction'). The Practice Direction was in force at the date of the hearing in the F-tT. Paragraph 1 is headed 'Interpretation'. 'ASA' is defined as an 'Appeal Skeleton Argument'. The ASA must be in three parts: a brief summary of the appellant's factual case, a schedule of issues, and the appellant's brief submissions on those issues, 'which should state why the appellant disagrees with the respondent's decision with sufficient detail to enable the reasons for the challenge to be understood'. The ASA must be concise, in numbered paragraphs, engage with the decision letter, not include extensive quotations and 'identify but not quote from any evidence or principle of law that will enable the basis of challenge to be understood'.
249. Lata (F-tT: Principal Controversial Issues)
250. In Lata (F-tT: Principal Controversial Issues) [2023] UKUT 163 (IAT); [2023] Imm AR 4 Dove J (President) (as he then was) and Upper Tribunal Judge O'Callaghan decided an appeal by the Secretary of State from the F-tT. The claimant had entered the United Kingdom with her children as a visitor in 2011. The Secretary of State had refused her application for asylum in 2015. The F-tT dismissed her appeal in 2016 in determination I. Her elder son ('S1') was then an adult; her younger son ('S2') was 16. The F-tT decided that it was in the best interests of S2 to be brought up by his mother until he was an adult. S1 was removed to India. He later returned to the United Kingdom and lived here lawfully with his wife (W).
253. In January 2022, the claimant made further representations, arguing that she could not be returned to India because she had converted to Christianity. The Secretary of State refused the further submissions, but recognised that they were a 'fresh claim' and gave the claimant a right of appeal. She appealed to the F-tT. She, S1 and W gave evidence. The focus of the Secretary of State's case was that the conversion was not genuine and that even if it was, the claimant would not be at risk if she returned to Goa because many Christians live there. S1 and W were cross-examined, but asked no questions about their willingness to move to India with the claimant. The Secretary of State did not argue that in her closing submissions, either.
256. The F-tT allowed the claimant's appeal in determination II. It found that the claimant was a genuine convert, and that she could not move to Goa, among other things because she would have no support there. The Secretary of State appealed to the UT, arguing that the F-tT had erred in law because it had not considered whether S1 or S2 could go to India with her. The Secretary of State argued that the starting point for the F-tT was determination I and that S2, who was now an adult, could return to India with his mother. As the UT explained in paragraph 13, the Secretary of State's ground of appeal to the F-tT was that the F-tT reasons were inadequate in two respects. The F-tT had failed to consider the immigration status of the claimant's sons or their ability to return with her to India, and that since S2 had no status in the United Kingdom, it had not explained why it would be unduly harsh for her to move to Goa with one or both sons. It seems that the F-tT refused permission to appeal. The Secretary of State then applied to the UT, relying on 'further additional submissions' based on the suggested effect of determination I. A theme of those submissions was that while the Secretary of State (who had been represented by counsel at the F-tT) had not made submissions about various issues, she had not explicitly made concessions about them.
259. In paragraph 4 the UT described the issue in the case as whether 'it is open to a party to proceedings in [the UT] to raise as the basis for an appeal ?a point which was not one of the principal controversial issues identified by the procedure for case managing appeals?' The UT then described how that issue should be approached 'bearing in mind the requirements of procedural rigour in the IAC and the need to achieve the overriding objective'.
262. In paragraph 17, the UT said that the Secretary of State relied on a different case on the appeal to the UT from the case 'expressly advanced' in the F-tT. The only reference to the sons in the Secretary of State's submissions had been to say that they could keep in touch with the claimant by telephone if she were removed. The Secretary of State's case in the UT was that a reference in the 15-page decision letter to Devaseelan (Second Appeals ? ECHR ? Extra-Territorial Effect) Sri Lanka [2002] UKIAT 00702 meant (although the decision did not say so) that the F-tT should have started with determination I and with the proposition that S2 could return to India with the claimant. The Secretary of State had not relied on internal relocation in the decision letter, but had, instead, doubted the claimant's conversion to Christianity.
265. The UT referred, in paragraph 20, to a new requirement for an appellant to file an ASA in the F-tT and to answer the question, 'Why does the appellant say that the decision of the respondent is wrong?' The question has to be answered in enough detail to enable the Secretary of State actively and effectively to review the decision before the hearing is listed. The F-tT hearing in Lata had been before the publication of the Practice Direction and of the related Practice Statement issued by the President of the F-tT ('the Practice Statement'). The Practice Statement repeated the requirement that a represented appellant must file an ASA. It also required the Secretary of State to review the appellant's case, taking into account the ASA and the appellant's bundle, and to tell the F-tT the outcome of that review. 'The respondent is to engage with the submissions made and evidence provided, and to particularise the grounds of refusal relied upon' (paragraph 21).
268. The claimant in Lata had failed to serve an ASA. There had then been a case management review hearing in the F-tT. After that hearing the F-tT had made directions listing five agreed issues. That list had not identified the issue now relied on by the Secretary of State. The Secretary of State then filed a review. That gave limited help, as the claimant had again failed to file an ASA (paragraphs 23-26).
271. In paragraph 27 the UT said, 'A judge in the FtT can expect clarity as to the remaining issues between the parties by the date of the substantive hearing of the appeal'. It referred to rule 2(4) of the relevant procedure rules (which deals with the overriding objective). 'The parties', it continued, 'are under a duty to provide the FtT with relevant information as to the circumstances of the case, and this necessitates constructive engagement with the FtT to permit it to lawfully and properly exercise its role. The parties are therefore required to engage in the process of defining and narrowing the issues in dispute, being mindful of their obligations to the FtT'.
274. It followed, said the UT, that 'unless a point was one which was Robinson obvious, a judge's decision cannot be alleged to contain an error of law on the basis that a judge failed to take account of a point which was never raised for their consideration as an issue in the appeal. Such an approach would undermine the principles clearly laid out in the Procedure Rules' (paragraph 28). The reference to a ' Robinson obvious' point is the decision of this court in R (Robinson) v Secretary of State for the Home Department [1998] QB 929 (' Robinson '); as to which, see paragraphs 66-69, above.
277. The Secretary of State's appeal was based on a misconception that if a party is silent about, or does not expressly concede a point, a judge was under a duty to consider all the points which might favour her, 'even if not expressly relied on'. It required the judge to search for a point and to consider a point which, while obvious, was 'not so obvious that it was raised by a party at the hearing'. The purpose of the new appeal procedure was to ensure that judges were not required to 'trawl through the papers' in order to work out which issues they had to consider. Their job is to 'deal with the issues that the parties have identified. It is trite that the hearing before the FtT is not a lap in the warm-up for a subsequent appeal in which a party's case can be differently articulated. Parties are expected to advance their cases to their best advantage, permitting a judge to decide between two competing sets of submissions that identify the full extent of the parties' positions' (paragraph 31).
280. The procedures in the F-tT gave ample opportunities for the parties to clarify their cases: the filing of the ASA, the Secretary of State's review, a case management review hearing, the start of the hearing, when the judge asks what the issues are, and closing submissions. If by the end of the hearing a party has not identified an issue, a judge is entitled to assume that he or she does not need to decide it. The judge will know about the duty of anxious scrutiny in a protection case, particularly when an appellant is not represented. The duty of anxious scrutiny is not 'an excuse for the failure of a party to identify ?the principal controversial issues in the case'. On the contrary, it was the duty of the parties to identify all such issues. On an appeal to the UT 'it should be rare indeed for there to be a point requiring anxious scrutiny (which is not Robinson obvious in the case of an appellant)' to have escaped the notice of the F-tT under the new procedures. Proceedings in the Asylum and Immigration Chamber ('IAC') are not 'some form of rolling reconsideration by either party of its position' (paragraph 33).
283. The parties must 'identify relevant issues of their own motion. There is no place for hiding a jewel of a submission in the hope it will purchase favour on an appeal. A party that fails to identify an issue before the FtT that it subsequently asserts to have been essential for a judge to consider is unlikely to have a good ground of appeal before' the UT. That was not to say that the judge in the F-tT should not be curious, and not ask questions if he or she needed more help. 'Where, as here, a point has not been identified by the parties, and nor is it one which independently drawn the attention of the judge, it is not an issue which can be appropriately raised for the first time' on an appeal (paragraph 34).
286. This court considered Lata in AAZA. In that case, the appellant was a citizen of Yemen. His asylum claim was based on fear of the Houthi rebels, and on the general situation there, and on fear of the Chinese authorities; he had lived in China with his family since he had been a year old. The Secretary of State had refused his claim. The appellant had briefly referred, in his witness statement in the F-tT, to a risk of indirect refoulement, but that issue had not been further explored. It was not a ground of appeal to the UT. Bean LJ, giving a judgment with which the other members of this court agreed, referred to Lata in paragraph 33, and quoted paragraphs 27 and 28. He also quoted paragraphs 15-18 of Singh v Dass [2019] EWCA Civ 360 (not an immigration case). Bean LJ accepted the Secretary of State's submission that this court should follow Lata. He said, nevertheless, 'I would leave for further consideration whether Lata would be applicable in its full rigour where this would result in serious injustice. In the present case I am satisfied that it would not cause injustice'. Mr Irwin, for the Secretary of State, had confirmed that if the appellant wished to make further submissions on the question of indirect refoulement, he could ask the Secretary of State to reconsider it under paragraph 353 of the Rules.
289. AL's arguments on this appeal
290. AL boldly submitted that the three points were 'obviously' before the F-tT in relation to the article 3 health claim. They were either raised in the arguments or clear from the evidence, including that of Dr Heke, or, as a last resort, were ' Robinson obvious'. It was suggested that the F-tT had not understood what is involved in cognitive decline or the importance of the relationship between a confused old woman and her primary carer. The 'core object and purpose of' the ECHR 'is to protect human dignity and to prevent people from being exposed and subject to treatment which is inhuman and degrading'. It was said to be significant that AL lacks capacity.
293. The written and oral arguments described the evidence before the F-tT in great detail. What care would be available to AL in practice mattered, and was relevant to the article 3 case. It was suggested that the F-tT had not anywhere recorded the oral submissions of AL's counsel. In oral argument Mr Jones added that the F-tT had failed to make a finding about PE's evidence that AL had cut her hair several times because of her subjective fear of the authorities in the DRC. The main legal argument on which AL relied was that for the purposes of the article 3 test in medical cases (see paragraph 50, above), the personal care which AL was receiving from PE and her family in the United Kingdom amounted to 'treatment'.
296. Mr Jones submitted that an important factor in the article 8 balance was that AL had been in the United Kingdom with section 3C leave throughout, and that her presence had therefore been lawful throughout.
299. Discussion
300. There is no debate about the correct legal tests for an article 3 or article 8 case. Much of the material in AL's written and oral argument amounted to an invitation to this court to act as a fact-finder, to look closely at, and to assess the evidence, rather than to persuade us that the F-tT had erred in law in its assessment of the evidence. I would decline that invitation. I am not persuaded that the F-tT did not understand the evidence. It considered the evidence carefully and in great detail. AL's central difficulty is that the F-tT rejected all the evidence adduced on her behalf which were the essential building blocks of the article 3 medical case which she advanced then, of the article 8 case which she advanced then; and the article 3 medical case and article 8 case on which she now relies.
303. Contrary to the suggestion in AL's skeleton argument, the F-tT did refer to AL's counsel's oral submissions (for example in paragraphs 235 and 237: see paragraph 54, above). The F-tT observed that the points made were 'limited' and made a much broader assessment than those points might have suggested was necessary. Contrary to Mr Jones's oral submissions, the F-tT dealt specifically with PE's evidence bolstering AL's case about her subjective fears (paragraphs 78, 239 and 248 of determination 1: see paragraphs 32, 56 and 58, above).
306. It is clear from Lata that it is an appellant's responsibility to put all her arguments before the F-tT. It is her duty to identify the points which the F-tT is required to resolve in order to decide the appeal. The UT in Lata described those as 'the principal controversial issues'. That formula is often used in public law to define the duty of a tribunal or other decision-maker to give reasons (see, for example, South Bucks District Council v Porter (No 2) [2004] UKHL 33; [2004] 1WLR 1953). There is therefore a deliberate symmetry, on the reasoning in Lata, between the parties' duty to identify the main issues for the F-tT, and the F-tT's duty to explain what it has made of those issues. The F-tT must decide those issues, and give reasons for its decision on them. But the F-tT can only decide them, and is only obliged to decide them, if the parties expressly identify them.
309. Nor is the F-tT obliged to decide every single issue which the parties have identified; only those which, in its view, will enable it to decide the appeal fairly. Nor is a tribunal required to comb through the documents and the evidence in search of potential points for either party, whether the appellant or the Secretary of State. I reject AL's submission that the F-tT was obliged to read Dr Heke's reports with a view to detecting the three points: the potential force of this argument is attenuated by the fact that the F-tT rejected the assumptions on which the crucial parts of Dr Heke's reports were based. The F-tT's function is not inquisitorial.
312. There are two qualifications to that statement. First, if the F-tT does not understand or is doubtful about an issue which is before it, it should ask the parties to clarify that issue so that it understands it. Second, the narrow principle in Robinson means that in some Refugee Convention cases, the F-tT may be obliged to investigate and decide a point which an appellant has not identified. That principle does not apply in this case, not least because the F-tT carefully considered and rejected AL's claim under the Refugee Convention, and because AL's argument does not meet the stringent merits test articulated in Robinson.
314. This case was extensively managed before the hearing. AL was permitted to rely on new matters. She then identified the 'principal controversial issues' in her skeleton argument for the F-tT and in the later correspondence with the F-tT. The article 3 case which AL presented in the F-tT was that she would have no care at all in the DRC and would have to fend for herself there if she were removed. The F-tT roundly rejected that case. I do not accept that she relied on the three points in support of her claim that removal to the DRC would cause her 'intense suffering' which would breach article 3 on health grounds, not least because they are not referred to in the documents and because the F-tT, in an impressively thorough exposition of the facts and issues did not refer to them either. It is therefore no surprise, and discloses no error of law, that the F-tT did consider the three points in the context of AL's article 3 claim.
317. The F-tT cannot now, on an appeal on a point of law, be criticised for not considering a case which AL did not advance. The F-tT was invited to, and did, consider two of those points in the context of AL's article 8 claim. It did not consider the impact of the removal process because it was not asked to (see paragraph 62, above). In reaching that conclusion I have taken into account the explanation of paragraph 16 of determination 3 in footnote 5 of AL's skeleton argument. But even if the UT misunderstood counsel's point, the fact remains that the F-tT did not refer to this argument in its painstaking reasons. I again infer from that that AL simply did not make that point to the F-tT. The F-tT held that AL's removal was proportionate for the detailed reasons which it gave. In the light of that finding, it is inconceivable that, had the F-tT considered the three points in relation to the stricter article 3 test, the F-tT could have found that that test was met.
320. Nor is it arguable that the F-tT erred in law in its approach to the article 8 case. The F-tT rightly accepted that AL's removal would interfere with her family and private life. As it was obliged to, it took into account the relevant provisions of Part 5A of the 2002 Act. It carefully considered the points which might indicate that removal was disproportionate. It took into account on the other side of the balance that, in relation to her private life, AL's presence in the United Kingdom had been precarious throughout; moreover, she had come for a temporary purpose but had never intended to leave the United Kingdom, and her protection claim was not genuine. The F-tT was obliged to, and did, take into account the factors in section 117B.
323. Section 117B is not, however, an exhaustive statement of the factors which the European Court of Human Rights ('the ECtHR') regards as relevant to the article 8 assessment. It also treats the precariousness or unlawfulness of residence in the host country as relevant to the assessment of proportionality in a family life case (see the discussion of 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 in paragraphs 78-92 and 93-105 of Arshad v Secretary of State for the Home Department [2025] EWCA Civ 355.
326. Mr Jones submitted that AL had had leave to enter or remain while she had been in the United Kingdom. That submission is formally correct, although it does not seem to have been made to the F-tT or to the UT. But it does not, first, detract from the fact that her presence in the United Kingdom was precarious throughout. That is relevant to the weight to be given to her private life (section 117B(4)) and on the approach of the ECtHR, to the weight to be given to her family life.
329. Moreover, second, that leave, was, first, leave to enter to enter as visitor which was, of the F-tT's findings, in effect, obtained by deception, and, then, section 3C leave which rested on a false claim for asylum. This court handed down its judgment in Bokqiu v Secretary of State for the Home Department [2026] EWCA Civ 191 on 27 February 2026 after the hearing of this appeal. In that case this court held that, for the purposes of Part 5A, residence pursuant to ILR which has been obtained by deception and revoked many years later by the Secretary of State (albeit not with retrospective effect) was not 'lawful' residence. We considered that we should give counsel the opportunity to make written submissions on the potential impact of that decision. The parties made their written submissions on 12 March 2026. I have taken them into account. Mr Jones submitted that the Secretary of State had never relied on deception at any stage in the procedural history, and that the F-tT's findings are not sufficient to establish on the balance of probabilities that AL got her visit visa by deception. Even if that is right, I accept Mr Erdunast's submission that while Bokqiu is not on all fours with this case, the points which are relevant to article 8 are analogous. Mr Jones made no submissions about the period of section 3C leave. I would be inclined to hold that AL was not lawfully present during any period of section 3C leave which related to her asylum claim. On the approach of the ECtHR, that is relevant to the weight to be given to her family in the United Kingdom. The F-tT's express reasons for rejecting AL's article 8 claim are, in any event, compelling, so this is a marginal point at best. I would also reject the suggestion of Mr Jones that the fact that AL had leave to enter followed by section 3C leave is in any way relevant to the article 8 assessment.
332. Mr Erdunast submitted that it was unnecessary for this court to decide whether personal care amounts to 'treatment' for the purposes of the relevant test (see paragraph 50, above). I agree with him. I have assumed, but have not decided, that personal care does amount to treatment, for the purpose only of considering AL's argument at its highest. I have rejected that case at its highest for the reasons I have given above.
335. Finally, I said that I would comment on this court's decision in AAZA. In the light of the new procedural rigour which applies in the F-tT, the duty on the parties to identify the principal controversial issues in an appeal, their many opportunities to do so, and the fact that appeals to the UT and to this court are on a point of law only, I find it difficult to imagine a case in which the application of Lata could result in any injustice, let alone serious injustice.
338. For these reasons I would dismiss this appeal.
341. Lord Justice Holgate
342. I agree.
345. President of the Family Division
346. I also agree.

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