AA (Morocco) v Secretary of State for the Home Department

An appellate tribunal must determine asylum, humanitarian protection, Article 3, integration and Article 8 claims separately, even where the evidence overlaps. Each claim has its own legal test, burden of proof and legal consequences.

For an Article 3 ill-health claim, the claimant must first provide evidence capable of demonstrating substantial grounds for a real risk of a serious, rapid and irreversible decline causing intense suffering, or a significant reduction in life expectancy. Only then does the burden shift to the returning state. Article 8 does not provide an easier health-based route. The very significant obstacles test requires a broad, objective assessment of likely integration, including family support and reasonable steps to mitigate obstacles.

AA, a Moroccan national who had lived in the United Kingdom since 2016, claimed asylum, humanitarian protection and protection under Articles 3 and 8. He also relied on paragraph 276ADE(1)(vi) of the Immigration Rules, principally because of serious mental-health difficulties and the limited support and treatment said to be available in Morocco.

The First-tier Tribunal dismissed the asylum and humanitarian protection claims but allowed the human rights appeal. The Upper Tribunal set that decision aside and remitted the case. After a second hearing, the First-tier Tribunal again dismissed the protection claims but allowed the human rights appeal. The Upper Tribunal allowed both parties’ appeals and remitted the case again without preserving findings. The central issue was whether the Upper Tribunal’s decision could stand and whether the First-tier Tribunal had applied the distinct legal tests governing the claims.

AA’s appeal was dismissed. The Court of Appeal upheld the Upper Tribunal’s order remitting the whole case to the First-tier Tribunal, but for the reasons given by Lord Justice Holgate, with whom Lady Justice Elisabeth Laing and Lord Justice Baker agreed.

1. The Upper Tribunal had wrongly recorded AA’s position on the human rights appeal. He had opposed the Secretary of State’s appeal and had not agreed to remittal. Nevertheless, the Court of Appeal decided the legal issue itself because it was straightforward, the Upper Tribunal was in no better position to determine it, and remittal would cause further delay.
2. The second First-tier Tribunal decision contained substantial legal errors. The tribunal had treated the evidence in the round and had failed to determine each claim in a logical sequence. Overlapping evidence did not justify eliding claims which involved different legal tests, standards of proof, burdens of proof, absolute rights and qualified rights.
3. For the Article 3 ill-health claim, the tribunal had first to decide whether AA had produced evidence capable of showing substantial grounds for believing that removal would expose him to a real risk, because of absent or inaccessible treatment, of a serious, rapid and irreversible decline causing intense suffering. The alternative of a significant reduction in life expectancy was not said to arise. Unless that threshold was met, the Secretary of State’s verification and access obligations did not arise. The First-tier Tribunal made no finding on the threshold and wrongly treated the Secretary of State as bearing the subsequent burden. Its treatment of the evidence concerning suicide and self-harm was also internally inconsistent.
4. Article 8 could not operate as an easier health-based route where Article 3 was not established. A separate or additional factual element was required. Medical treatment unavailable on return could be relevant only as an additional factor where other facts independently engaged Article 8.
5. The assessment under paragraph 276ADE(1)(vi) required a broad, objective evaluative judgment about integration. The tribunal had to assess the likely reality of daily life, the significance of the obstacles, family support and any reasonable steps available to mitigate them. It failed to carry out the assessment required by the earlier Upper Tribunal decision.
6. The First-tier Tribunal also failed to address whether the mental-health particular-social-group claim was a new matter under section 85(5) of the Nationality, Asylum and Immigration Act 2002. The case was therefore remitted to a different First-tier Tribunal judge, other than Judge Hussain or Judge Davey, with no findings preserved and with case-management directions to be considered by the tribunal’s President.

1. Court of Appeal (Civil Division) — In [2025] EWCA Civ 144, the appeal was dismissed. The Upper Tribunal’s order remitting the whole case was upheld, but for different reasons.
2. Upper Tribunal (Immigration and Asylum Chamber) — On 4 December 2023, the Tribunal allowed both parties’ appeals and remitted the case to the First-tier Tribunal with no findings of fact or credibility preserved.
3. First-tier Tribunal (Immigration and Asylum Chamber) — On 10 June 2022, the Tribunal dismissed the asylum and humanitarian protection appeal but allowed the human rights appeal under Articles 3 and 8.
4. Upper Tribunal (Immigration and Asylum Chamber) — On 10 May 2021, the Tribunal allowed both appeals against the first First-tier Tribunal decision, set it aside without preserving findings and remitted the case for a fresh hearing.
5. First-tier Tribunal (Immigration and Asylum Chamber) — On 20 November 2020, the Tribunal dismissed the asylum and humanitarian protection claims but allowed the appeal under paragraph 276ADE(1)(vi) of the Immigration Rules.