Mark Symes and Maha Sardar of Garden Court Chambers’ Immigration and Public Law teams have successfully defended an appeal by the Secretary of State for the Home Department (SSHD) in the Court of Appeal. Counsel were instructed by Ben Cartwright (Solicitor) and Vilash Gami (Director) of Duncan Lewis Solicitors.
Background
KS is an Afghan national who arrived in the UK as a child. His father (an Afghan army employee) was murdered in Afghanistan. He later learned his mother and sister had also died. KS has been recognised as a victim of trafficking/modern slavery and has severe mental ill-health, including complex post-traumatic stress disorder (PTSD) and depression.
The Court of Appeal’s decision
The Court of Appeal dismissed the SSHD’s appeal and upheld the First-tier Tribunal (FTT) and Upper Tribunal decisions allowing KS’s appeal on Articles 2 and 3 European Convention on Human Rights (ECHR). The Court held that, although the FTT’s reasoning was “somewhat compressed” [53] it was sufficient and disclosed no error of law. In doing so, it reaffirmed the restrained approach to appellate scrutiny of specialist FTT decisions set out in Kapikanya.
The Court was explicit that the Home Office did not lose because of any general finding about deporting adult male Afghans. It lost because it had been served with a substantial body of carefully-argued expert evidence and did not seek to challenge it, including by requiring key experts to attend for cross-examination [52]. The FTT judge had to therefore “deal with the case on the basis that there was little if any challenge.” [55]
Thus, the determinative features of the FTT’s judgement were the unchallenged expert evidence on KS’s particular vulnerabilities, including risk of re-trafficking and Westernisation-related risk engaging Article 3 ECHR.
Read the full judgement here: KS v Secretary of State for the Home Department [2026] EWCA Civ 149
