SN (Zimbabwe) v Secretary of State for the Home Department

On an application for permission to appeal against deportation, a tribunal must engage with a material medical condition, the medical evidence, and objective evidence concerning treatment available in the proposed country of return. A bare assertion that the condition has been considered, without addressing those matters, may disclose an arguable error of law. The seriousness of offending remains relevant, but must be weighed against the medical circumstances and treatment prospects. Permission may be granted on that confined ground without determining the appeal’s merits.

The appellant sought permission to appeal against the refusal of the Asylum and Immigration Tribunal. His deportation order had followed a conviction for driving under the influence of alcohol, for which he received a three-month prison sentence. An earlier determination had been found to contain a legal error concerning treatment difficulties in Zimbabwe, and a revised hearing followed. The senior immigration judge refused permission, describing any appeal as doomed to fail. The central issue before the Court of Appeal was whether the revised determination had adequately addressed the appellant’s HIV status, the medical evidence, and the availability of treatment in Zimbabwe.

Permission granted on one ground. Lord Justice Moses regarded the appellant’s offending as serious, particularly the conviction for driving under the influence of alcohol. However, that seriousness had to be weighed against the appellant’s HIV status and the prospect of obtaining treatment in Zimbabwe [1]–[2].

1. The earlier determination had addressed difficulties in obtaining treatment in Zimbabwe but had been found legally erroneous and had identified an absence of evidence on treatment availability. The revised determination made no real reference to the appellant’s HIV-positive status or to his asserted difficulty in receiving in Zimbabwe the treatment available to him in the United Kingdom [2]–[3].
2. The assertion that the medical condition had been considered was insufficient. The determination did not explain how the condition affected the case, engage with the medical evidence, or address the objective evidence concerning treatment availability. Those matters were not properly dealt with in the refusal of permission [3].
3. That omission disclosed an arguable ground of appeal. Permission was therefore granted only on the ground relating to the appellant’s medical condition and the prospect of treatment in Zimbabwe. The substantive merits were not determined. The court considered it vital that the appellant obtain legal advice and representation for the appeal hearing [4].

• Court of Appeal (Civil Division): granted permission to appeal on the confined ground concerning HIV, medical evidence, and treatment availability in Zimbabwe.
• Asylum and Immigration Tribunal: a senior immigration judge refused permission and considered the proposed appeal doomed to fail.