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29/04/2026
On 31 March 2026, the Court of Appeal dismissed the appeal of AL, a 74-year-old woman with major neuro-cognitive disorder, who claimed removal to DR Congo would breach Article 3 ECHR owing to separation from her family carers. She asserted that the First-tier Tribunal had not properly engaged with the impact of separation and that the Upper Tribunal was wrong to find the issue had not been raised below. She claimed she met the criterion in Article 3 healthcare cases of “serious, rapid and irreversible decline” in her health owing to “unavailability of treatment” (i.e. care). Paul Erdunast represented the successful Secretary of State.
This case is notable, because Elisabeth Laing LJ made important comment on the case law regarding matters not raised in the First-tier Tribunal. In Lata (FTT: principal controversial issues) [2023] UKUT 00163 (IAC), a Presidential panel of the Upper Tribunal held that “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”. This is stricter than in other jurisdictions, where Singh v Dass [2019] EWCA Civ 360 applies. In AAZA (Yemen) v Secretary of State for the Home Department [2025] EWCA Civ 705, a case in which William Irwin acted for the successful Secretary of State, Bean LJ commented that it would be left to another case to decide whether Lata would apply in its full rigour where doing so would lead to serious injustice.
Elisabeth Laing LJ stated: “99. 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.” It follows that courts and tribunals are unlikely to grant leeway to a party who raises a new matter on appeal in an immigration or asylum case in which Lata applies.
Elisabeth Laing LJ, who drafted the judgment, stated (generously) at §3: “In this court, [the Secretary of State] had the great advantage of being represented by Mr Erdunast.”
A link to the judgment can be found here.
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