[2025] UKUT 00092 (IAC)

Mr Buttler founded his submissions concerning this issue on the premise that the requirement to apply anxious scrutiny applies equally to a decision concerning MS leave as it does to a decision concerning a claim for asylum. That submission is founded, at least in part, on MN v Secretary of State for the Home Department and IXU v Secretary of State for the Home Department [2020] EWCA Civ 1746, [2021] 1 WLR 1956 at paras 242 to 246. I accept Mr Irwin’s submission that what matters is the substance of the Secretary of State’s analysis, rather than its form. See, for example, para. 245 of MN:

“as in any such review what matters is the substance of the analysis, reasoning and conclusions, rather than matters of wording or form”

MN and IXU involved challenges to the two-stage process adopted by the Competent Authority concerning the recognition of victims of modern slavery. It did not concern decisions concerning MS leave. But, as the Secretary of State accepts, such decisions are important decisions, and must be taken properly.

The underlying question pertaining to this issue is therefore whether the 12 December decision took proper account of the Thomas report. It is necessary to read that decision alongside the amplification of its reasoning provided by the pre-action response dated 30 January 2023.

The Thomas report summarised the mental health conditions with which the applicant lives. They include moderate-severe symptoms of a major depressive disorder with additional psychotic features. Those conditions, in the opinion of Dr Thomas, mean that the applicant has significant treatment needs. Dr Thomas’ opinion was that he would not be able effectively to access appropriate treatment without the in-country stability that would be provided by a grant of leave to remain, and that insufficient provision would be available in Nigeria in any event.

The 12 December decision expressly engaged with whether a grant of MS leave was necessary to protect and assist the applicant’s recovery. That approach was consistent with Article 14(1)(a) which only regards an individual’s stay to be “necessary” if it is required on account of the individual’s trafficking-related “personal situation”, when viewed in the context of the aims of Chapter III of the Convention, as held in PK (Ghana) (see para. ‎27, above). The decision acknowledged that the applicant takes Nytol, and noted that it would be available in Nigeria. Finally, the decision quoted at length from the Secretary of State’s Country Information Note – Nigeria: Medical treatment and healthcare, December 2021, demonstrating the extent of the psychiatric provision available in Nigeria. On any view, the treatment available in Nigeria is more complex than that which was accessed by the applicant on the material before the Secretary of State in the course of the 12 December decision.

I reject Mr Buttler’s submission that the 12 December decision should have engaged in further depth with the conclusions of the Thomas report about the applicant’s need to remain in the United Kingdom to access treatment without fear of return to Nigeria. Dr Thomas accepted at para. 182 that her expertise does not lie in the provision of psychological therapy or medical intervention in Nigeria. More significantly, the report details a range of underlying trauma experienced by the applicant over a considerable period of time. Those experiences included “that his time in Sudan as a child had been particularly traumatic” due to the ongoing conflict at the time, his exposure to dead bodies, and sustaining an injury caused by an army officer (paras 9 and 10). The applicant was instructed by the Nigerian Embassy to return to Nigeria to see his ailing father, only to find that he was already dead upon arrival. He also found out that the family home had been burned down by Boko Haram (para. 22), and was subsequently abandoned by his mother, who he now assumes to be dead (para. 78). Later trauma experienced by the applicant includes the two periods of modern slavery. The applicant reports that his psychiatric symptoms commenced upon the death of his father (para. 79). Dr Thomas considered that the applicant minimised the impact of his mother’s neglect of him (para. 82), and the impact upon him of not being able to work to provide for his family (para. 83).

In light of the mixed causes of the applicant’s trauma, even taking Dr Thomas’ report at its highest, it is difficult to see how the applicant’s stay could be said to be necessary as a result of his trafficking-related “personal situation” for the purposes of Article 14(1)(a) such that his stay was “necessary”. As the Secretary of State’s pre-action protocol response put it, the applicant had not commenced any treatment in the UK. Since appropriate treatment would be available in Nigeria, the Secretary of State was entitled to conclude that his stay was not necessary in Article 14(1)(a) terms. Moreover, the obligation upon the Secretary of State contained in the DL policy is not to ensure the provision of support enabling a full recovery (see page 729 of the bundle).

I therefore agree with Mr Irwin that there is no basis to conclude that the Secretary of State addressed the question of whether the applicant’s psychiatric needs could be met if returned to Nigeria on an incorrect or insufficient basis.

The claim is therefore dismissed on this ground.