The Secretary of State for the Home Department v Sherma Joseph

The Upper Tribunal is a permission-based appellate jurisdiction. Applications for permission should identify the alleged error of law, distinguish legal error from disagreement with factual findings or weight, and identify the representative responsible for the application. Permission decisions, including grants, should give brief reasons. An appellate tribunal must respect the first-instance judge’s fact-finding role and should intervene only where the decision is plainly wrong, irrational, or inadequately reasoned. In health-based Article 3 claims, the absence of clear documentary proof about access to treatment does not necessarily defeat the claim. Accessibility includes affordability, and a degree of speculation is inherent in the preventive purpose of Article 3.

The Secretary of State appealed against the decision of First-tier Tribunal Judge Beg, promulgated on 2 September 2021, allowing Sherma Joseph’s human-rights appeal on Articles 3 and 8 grounds. The First-tier Tribunal accepted that appropriate treatment for Joseph’s serious kidney condition was available in Trinidad and Tobago, but found that her health, lack of employment prospects, limited support, and the uncertain affordability of medication meant that she might not be able to access it.

The Secretary of State argued that the grounds disclosed an error of law, including a failure to apply the required health-claim analysis and inadequate reasoning. The central issues were whether the grounds impermissibly challenged factual findings and whether the First-tier Tribunal was entitled to find a real risk of inaccessible treatment causing the consequences required for an Article 3 breach.

1. Appeal dismissed. The First-tier Tribunal’s decision did not involve an error of law requiring it to be set aside. The Article 8 ground was consequential upon the Article 3 challenge and, even if arguable, any error would have been immaterial because the appeal was legitimately allowed under Article 3.
2. Applications for permission to appeal should be framed by reference to an arguable error of law. Language stating that the case or requirements were not met ordinarily expresses disagreement, not legal error. Re-packaging disagreement about facts or evidential weight as inadequacy of reasons or irrationality does not enlarge the Upper Tribunal’s jurisdiction. Representatives should identify themselves and take responsibility for the grounds. Permission decisions should contain brief reasons, including grants of permission, especially where factual findings are challenged.
3. The appellate tribunal must respect the First-tier Tribunal’s primary fact-finding function. It should not interfere merely because it might have reached a different conclusion. The relevant question is whether the findings were plainly wrong or rationally insupportable, whether the evidence was considered, and whether the reasons enable the losing party and the appellate tribunal to understand why the decision was reached.
4. For the health-based Article 3 inquiry, the relevant question was whether appropriate treatment available in Trinidad and Tobago would be accessible to the appellant. Accessibility included affordability. The First-tier Tribunal was entitled to rely on the evidence before it, including the evidence of witnesses and the Secretary of State’s apparent acceptance that treatment might be unaffordable. The absence of clear documentary or expert evidence did not prevent success, because a degree of speculation is inherent in the preventive purpose of Article 3.
5. The medical evidence established a direct causal link between failure to obtain immunosuppressant medication, renewed end-stage kidney failure and dialysis, intense suffering, and a significant reduction in life expectancy. The findings concerning employment, family support, and assistance from friends were open to the First-tier Tribunal and were not plainly wrong. No anonymity direction was made.

• First-tier Tribunal (Immigration and Asylum Chamber): Judge Beg promulgated a decision on 2 September 2021 allowing the human-rights appeal on Articles 3 and 8 grounds.
• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was dismissed. The First-tier Tribunal decision was not set aside.