AL v Secretary of State for the Home Department: Court of Appeal affirms procedural discipline in article 3 health claims

The Court of Appeal has dismissed the appeal of AL, a national of the Democratic Republic of the Congo, confirming that a party's failure to raise arguments before the First-tier Tribunal (Immigration and Asylum Chamber) will ordinarily preclude reliance on those arguments in subsequent proceedings. The judgement, handed down on 31 March 2026 by Lady Justice Elisabeth Laing (with whom Lord Justice Holgate and the President of the Family Division agreed), also endorses the Upper Tribunal's approach in Lata (FtT: Principal Controversial Issues) [2023] UKUT 163.

AL, aged 72 and assessed as lacking mental capacity, arrived in the United Kingdom in February 2020 on a visitor visa and claimed asylum within two months. Her health deteriorated significantly during proceedings, and by the time of the First-tier Tribunal hearing she was assessed as having a serious neurocognitive disorder, was entirely dependent on her daughter PE for care, and was no longer able to give evidence.

The F-tT dismissed her protection, article 3, and article 8 claims. Central to its reasoning was a finding that AL had not been candid about her family circumstances in the DRC — she had four sons and a sister still living there — and that the assumptions underpinning her expert evidence were therefore undermined. The Upper Tribunal upheld the F-tT's determination, finding no error of law.

On appeal to this court, AL argued that the F-tT had failed to consider three factors relevant to whether her removal would cause "intense suffering" contrary to article 3: the effect of separation from her family carers in the UK (particularly PE); the effect of the removal process itself; and the impact on her dignity of requiring intimate care from male relatives in the DRC. She also argued error in the article 8 proportionality assessment.

Lady Justice Laing rejected all grounds. On the article 3 issue, the court found that AL had simply not advanced these arguments before the F-tT. The case as presented had been that AL would have no support whatsoever on return to the DRC and would be left entirely to fend for herself — a case the F-tT rejected on the evidence. The three points now relied upon were neither raised in submissions nor identifiable as issues the F-tT was obliged to consider of its own motion.

The judgement affirms and develops the procedural framework established in Lata. The F-tT is not required to search through expert reports or case papers for points that parties have not identified. Its function is to resolve the principal controversial issues placed before it by the parties, not to conduct an inquisitorial review of the material. The court confirmed that an F-tT's failure to address an argument cannot found an error of law where that argument was never raised.

The court also addressed the qualification suggested in AAZA (Yemen) v Secretary of State for the Home Department [2025] EWCA Civ 705, in which Bean LJ had left open whether Lata might not apply "in its full rigour" where serious injustice would result. Lady Justice Laing expressed scepticism that such a case would arise in practice, given the multiple procedural opportunities available to parties to identify issues before and during F-tT hearings.

On article 8, the court found no error in the F-tT's proportionality balancing. It noted that while AL had held section 3C leave throughout her time in the UK, that leave rested on an asylum claim the F-tT had found to be false, and her initial entry had in effect been obtained by deception. Drawing on the recent decision in Bokqiu v Secretary of State for the Home Department [2026] EWCA Civ 191, Lady Justice Laing observed that such circumstances are relevant to the weight to be accorded to private and family life under both the statutory framework and the European Court of Human Rights' own approach to proportionality.

The judgement is a significant restatement of the principle that immigration appeals are not, as the UT put it in Lata, "some form of rolling reconsideration" of a party's position. Parties must identify all issues they wish the tribunal to resolve; a failure to do so will not be remedied on appeal by framing the omission as judicial error.

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