Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No.: UI-2024-002555

First-tier Tribunal No: PA/00628/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 13 March 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

MH (BANGLADESH)
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Asraful Arafin, Counsel instructed by JKR Solicitors
For the Respondent: Ms Julie Isherwood, Senior Home Office Presenting Officer

Heard at Field House and via Teams on 18 February 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. The appellant appeals to the Upper Tribunal from the decision of First-tier Tribunal McMahon, promulgated on 13 March 2024 (“the Decision”). By the Decision, Judge McMahon dismissed the appellant’s appeal against the decision of the respondent to refuse his protection and human rights claims.

Relevant Background

2. The appellant is a citizen of Bangladesh, whose date of birth is 17 November 1986. In the latter part of 2016, the appellant entered the UK on a six-month private household visa, which was valid from 7 August 2016 to 8 February 2017. The appellant was encountered working illegally in the UK on 29 April 2017 and he was detained. On 3 May 2017 the appellant claimed asylum. The appellant was released from detention on 8 May 2017. He failed to attend asylum interviews on 13 May 2017 and 30 October 2017, and therefore on 20 December 2017 his asylum claim was treated as withdrawn.

3. The appellant was encountered again and detained on 6 February 2018. On 13 February 2018 he made further submissions. He claimed that his life would be at risk at return at the hands of the Awami League government due to his political involvement with the opposition BNP party. His further submissions were refused on 14 March 2018.

4. In a letter dated 1 April 2018, the appellant introduced two additional fresh claims alongside his claim for political asylum, to which he continued to adhere.

5. He said that he feared the loan shark from whom he took a huge loan and whom he could not repay. He went to Libya in 2008 on a work visa, and he took out a loan to pay for the work visa. But in 2010 the situation became worse in Libya, and he and his fellow migrant workers were stranded by the war for over a month. Finally, they were rescued, and they escaped to Tunisia before they were finally sent back to Bangladesh empty-handed. He became very active in political demonstrations and other anti-government movements. This brought him to the adverse attention of the current government and the law-enforcement agencies. He was unable to repay his previous loans, and because of his political involvement, he had to take out another loan to get a job visa to Qatar in 2013. In Qatar his Sheikh (boss) tortured him badly and did not pay him wages.

6. He had come to the UK with the Sheikh in 2016, but he was badly tortured here when he asked for his wages. He was locked inside the house. His passport and other documents were kept by the Sheikh. When he got the chance, he escaped from the house within the first week. He decided not to go to the police because he thought they would not believe him and they would send him back to his Sheikh.

7. Instead, he thought that if f he could find a job, he had more chance to save his life and his family. His family in Bangladesh was still being threatened by the people from whom he took the loan. They had also threatened him here in the UK by phone. The people he took money from were very powerful and politically involved with the current government party. He was threatened that if he went back to Bangladesh, they would find him and kill him if he did not pay them back. His wife went to the police, but did not get any help from them. The police did not take her complaints, and his family went into hiding.

8. The appellant’s claim that he had been a victim of trafficking and modern slavery was referred under the National Referral Mechanism (NRM) to the Single Competent Authority (SCA). On 9 April 2018 the SCA decided that there were reasonable grounds to believe that the appellant had been a victim of modern slavery, human trafficking and servitude.

9. The appellant was asked to attend an interview about his trafficking claim on 31 May 2018, but he failed to do so. However, he provided a witness statement in January 2021, and on 20 January 2023 the SCA made a positive conclusive grounds decision that the appellant was a victim of modern slavery. They found that the appellant had been exploited in the form of domestic servitude in Bangladesh, Qatar and the UK “during 2013 and to October 2016”.

10. In a Reasons for Refusal Letter (RFRL) dated 5 May 2023, the Home Office gave their reasons for refusing the further submissions made on 1 April 2018.

11. He had stated that the family was still being threatened by the people he took a loan from, but no specific details or evidence had been provided regarding the claimed threats against his family. He had stated that the people who he had taken the loan from had threatened him in the UK on the phone. But no specific details or evidence had been provided to show that he had received any such threats. He said that his wife had gone to the police but did not get any help. No specific information had been provided of this, such as the location of the police station he claimed his wife went to. No information or supporting evidence had been provided to show that his wife had attempted to seek help from the police, or that the police were unwilling to assist her. So, he had failed to substantiate his claim to be at risk of persecution upon return to Bangladesh from loan sharks.

12. It was acknowledged that the SCA had decided that he was a victim of trafficking. But whether a victim was at risk of re-trafficking or persecution or serious harm would depend on their circumstances. The onus was on that person to credibly evidence that they were at such a risk. Consideration had been given to the US Department of State’s trafficking report on Bangladesh dated 2022. They found that the Government of Bangladesh did not fully meet the minimum standards for the elimination of trafficking, but was making significant efforts to do so. The government demonstrated overall increasing efforts compared with the previous reporting period. These efforts included increasing investigations, prosecutions and convictions against human traffickers. In addition to the National Authority, which coordinated intragovernmental efforts, the government supported several other task forces and committees to monitor progress on anti-human trafficking, and to harmonise anti-trafficking efforts between government agencies, NGOs and international organisations. The government also continued to support counter-trafficking committees (CTCs) at district, sub-district, and union levels to facilitate coordination between local government and civil society to combat human trafficking.

13. The appellant failed to evidence that he would be at risk of re-trafficking. The Bangladesh government had in place a framework to address and support victims of trafficking. Support was also available from NGOs. So, protection was available to him upon return to Bangladesh.

The Hearing Before, and the Decision of, the First-Tier Tribunal

14. The appellant’s appeal came before Judge McMahon sitting in the First-tier Tribunal at Columbus House, Newport, on 8 March 2024. Both parties were legally represented, with Mr Arafin of Counsel appearing on behalf of the appellant.

15. At the outset of the hearing, Mr Arafin applied for an adjournment pending a decision from the SCA on the question of whether the appellant was entitled to discretionary leave by virtue of the conclusive grounds decision which was issued on 20 January 2023. He submitted that such an adjournment was necessary to deal with the case fairly. The application was opposed by the Presenting Officer on the basis that the decision of the SCA would be a separate decision and one where a separate right of appeal would exist if the appellant was unsuccessful.

16. Having reminded himself of the principles stated in Nwaigwe (adjournment: fairness) [2014] UKUT 00418 (IAC), the Judge refused the application to adjourn. His reasoning was that the SCA would be required to consider the discretionary leave application on its own merits, and should it reject the application, the appellant would be entitled to submit a fresh appeal against it. The current appeal had been pending since May 2023 and it was in the interests of fairness to both the appellant and the respondent that the current appeal should reach a conclusion.

17. The other preliminary issue raised at the outset of the hearing was resolved in the appellant’s favour. The Judge granted the appellant permission to adduce in evidence a 56-page supplementary bundle that had been filed the day before the hearing.

18. In the Decision, the Judge addressed the appellant’s credibility at para [11]. The appellant had given a written statement dated 5 January 2024 which he adopted as his evidence in chief. He was asked numerous additional questions during evidence in chief which provided further clarity about his case. Overall, he did not find the appellant to be a wholly reliable witness. There were numerous instances where the appellant’s written and oral evidence had been inconsistent. He had found examples of where the appellant had exaggerated his case (whether intentionally or otherwise) which caused him to conclude that he was not a reliable witness.

19. At paras [12] to [14], the Judge gave his reasons for concluding that the stark inconsistency in the appellant’s written and oral evidence on the topic of his political involvement was such that he was not credible in his claim to have participated in any political demonstrations, or in his claim to be a member or supporter of the BNP.

20. At paras [15] to [20], the Judge addressed the second element of the appellant’s claim, which was his debt to loan sharks. The Judge accepted, at para [18], that the core of the appellant’s account was plausible. He accepted that the appellant borrowed some money to fund his father’s medical treatment and, in the hope of financing the repayment, he had left Bangladesh for economic reasons in the hope of finding work, which led to him ending up in domestic servitude in Qatar and the UK. However, for the reasons which he gave in para [19], he did not accept that the appellant owed £23,000 or indeed anything close to that figure: and, for the reasons given in para [20], he did not accept that his wife and son had received any threats.

21. At paras [21] to [23], the Judge addressed the appellant’s status as a victim of trafficking. The Judge concluded that the appellant’s account of falling into domestic servitude was plausible. In addition, having regard to the medical evidence, he was also satisfied that the appellant may well have been the victim of sexual violence during his period of servitude. He accepted that the appellant did not report being raped until after the decision by the SCA. However, there was evidence of medical complaints which were consistent with injury through sexual violence before that date.

22. At paras [26] to [30], the Judge analysed the appellant’s claim under the Refugee Convention. At para [28[ the Judge said:

“As for the Appellant’s fear of harm from loan sharks, I have found against the Appellant’s claim of any harm arising from the loan sharks. Moreover, any motivation appears to be entirely personal rather than from deriving from any Convention reason.”

23. At para [29] the Judge said:

“Finally, whilst I am prepared to accept the Appellant is capable of falling within a particular social group by virtue of being a victim of exploitation, the Appellant has not produced any evidence that he would be at risk of re-trafficking or similar because of his membership of that group.”

24. The Judge addressed the appellant’s alternative claim for humanitarian protection at paras [31] to [33]. At para [32] the Judge said:

“I have found the Appellant borrowed some money in Bangladesh which he may still owe. I have found against the Appellant’s claim about his wife and son being threatened and, in any event, I found there has been no evidence of harm since. Even if I was wrong about the threats, the Appellant has not produced any objective evidence to demonstrate that he would be unable to obtain state protection and I note the CPIN: Bangladesh: Actors of Protection provides that “In general, the state is able to provide effective protection”.”

The Grounds of Appeal to the Upper Tribunal

25. Mr Arafin of Counsel settled the grounds of appeal to the Upper Tribunal. Ground 1 was that the Judge had erred in law in refusing to grant an adjournment, as he had overlooked the distinction between fairness and reasonableness, and had consequentially misapplied the principle of fairness established in Nwaiqwe. Ground 2 was that the Judge had unlawfully failed to allow the appeal despite accepting the core of the appellant’s asylum claim. In particular, the Judge’s denial that the appellant had a well-founded fear from the loan sharks was Wednesbury unreasonable. Ground 3 was that the Judge had reached an unreasonable conclusion with respect to the risk of re-trafficking.

The Reasons for the Initial Refusal of Permission to Appeal

26. In a decision dated 17 May 2024, First-tier Tribunal Judge Aziz held that there was no merit in Ground 1. The Judge had correctly noted the principles set out in Nwaigwe and had properly applied them in refusing the application to adjourn. The Judge had given clear and adequate reasons why the application to adjourn was refused.

27. As to Ground 2, the Judge accepted certain core aspects of the appellant’s account (such as borrowing money from loan sharks) but rejected other aspects of his account (such as his claimed fear of the loan sharks). There was no substance to the argument that such an approach was erroneous. The Judge was fully entitled to accept certain aspects of the appellant’s case and reject other parts. In this case, having accepted that the appellant had borrowed money from loan sharks, the Judge then highlighted, at paras [19] and [20] of the Decision, multiple inconsistencies in the appellant’s account which led him to reject his claim of the amount he owed to the money-lenders, or the alleged threats that he had received from them. These were findings which were open to the Judge upon the evidence before him.

28. As to Ground 3, this amounted to no more than a disagreement and an attempt to relitigate the case.

The Reasons for the Eventual Grant of Permission to Appeal

29. Following a renewed application to the Upper Tribunal for permission to appeal, Deputy Upper Tribunal Judge Saini granted permission to appeal on all three grounds. However, he singled out Ground 1 as being the most meritorious. Although the adjournment would have been for an unspecified length of time, it was arguably in the interests of justice to adjourn so as to assist the Tribunal in the disposal of the concurrent asylum appeal. In addition, it appeared to have escaped the parties’ attention that the outcome of “this matter” could have a bearing on the asylum appeal under para 339K of the Immigration Rules. Judge Saini continued:

“I am less persuaded by Ground 2, and more so by Ground 3, but … I do not limit the grant for the purposes of a materiality assessment.”

The Rule 15 (2A) application

30. In a letter dated 6 February 2025, the appellant’s solicitors applied for permission to adduce in evidence a letter dated 5 June 2024 from UKVI granting the appellant discretionary leave in the UK for a period of 1 year until 4 June 2025

The Hearing in the Upper Tribunal

31. At the hearing before me to determine whether an error of law was made out, the representatives attended the hearing remotely via Teams.

32. Mr Arafin submitted that Ground 1 was now redundant, as the appellant had been granted temporary discretionary leave on 5 June 2024. He sought to develop the remaining grounds by reference to an extensive appeal skeleton argument (ASA) dated 15 February 2026. Ms Isherwood objected to this proposed course of action, as she submitted that Mr Arafin was thereby seeking to rely upon case law and background evidence that was not before the First-tier Tribunal. While noting Ms Isherwood’s objection, I permitted Mr Arafin to develop Grounds 2 and 3 by reference to his ASA.

33. Ms Isherwood opposed the appeal for the similar reasons to those given by Judge Aziz when refusing permission. Ms Isherwood submitted that the appellant was seeking to relitigate sustainable findings made by the FtT Judge by bringing forward new evidence and new arguments. After briefly hearing from Mr Arafin in reply, I reserved my decision.

Discussion and Conclusions

34. I consider that it is helpful to bear in mind the observations of Lord Brown in South Bucks County Council -v- Porter [2004] UKHL 33; 2004 1 WLR 1953. The guidance is cited with approval by the Presidential Panel in TC (PS compliance - “Issues-based reasoning”) Zimbabwe [2023] UKUT 00164 (IAC). Lord Brown’s observations were as follows:

“36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in dispute, not to every material consideration…Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”

35. I also take into account the guidance given by the Court of Appeal in Volpi and another v Volpi [2022] EWCA Civ 464 at para [2]:

“i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.
vi) Reasons for the judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.”

Ground 1

36. Ground 1 was rightly not pursued by Mr Arafin. At the outset of the appeal hearing before Judge McMahon the position was (a) the SCA had made a conclusive decision that the appellant was a victim of trafficking; (b) the respondent had accepted this finding for the purposes of the asylum appeal; (c) although the SCA had not yet decided what period of discretionary leave should be granted, there was no risk of the Tribunal making a finding in the asylum appeal which negated the appellant’s entitlement to a grant of discretionary leave as the Tribunal could not go behind the respondent’s concession; and (d) there was no prospect of the SCA embarking on a separate fact-finding exercise for the purpose of deciding what period of discretionary leave should be granted. Therefore, there was not the remotest prospect of the Tribunal being assisted in the disposal of the asylum appeal by waiting to see what leave the SCA granted. Equally, there was no realistic prospect that an adverse decision by the Tribunal in the asylum appeal was going to jeopardise the appellant’s entitlement to a grant of discretionary leave by the SCA. This is not just with the benefit of hindsight, but also because the published policy cited by the appellant’s solicitors in correspondence made this clear. A favourable decision in the asylum appeal might increase the period of discretionary leave, but an unfavourable decision would not deprive the appellant of his entitlement to a grant of leave pursuant to the SCA’s positive conclusive grounds decision.

Ground 2

37. In support of his claimed fear of loan sharks. the appellant relied solely on his own testimony and the testimony of his wife, who was self-evidently not an independent witness. The appellant did not seek to substantiate the loan shark claim by bringing forward general diary entries or FIRs showing that his wife had complained to the police about threats made by loan sharks. The appellant also did not rely on any background material that supported the claim that he was at risk of being attacked by loan sharks, or the claim that he would be vulnerable to re-trafficking. The background evidence relied upon by the appellant at AB/129-135 was confined to two newspaper articles about loan sharks in which the problem that was highlighted was some debtors being driven to suicide by the unbearable mental pressure of the exorbitant rates of interest being charged by loan sharks. Moreover, the first article, which was published in 2020, refers to a court decision in which four out of five defendants were convicted and sentenced to a term of imprisonment for the instigation of a debtor’s suicide.

38. Mr Arafin submits that, having found that the appellant owed some money to loan sharks, the Judge ought to have conducted a critical inquiry into how loan sharks operate in Bangladesh, as evidenced by the objective materials in AB/129-135, and then asked himself whether the appellant would thereby be vulnerable to retribution, coercion or exploitation. However, there is no record of Mr Arafin explaining to Judge McMahon how this material advanced the appellant’s case; and, on the face of it, the material does not support the proposition that debtors routinely face retribution or coercion from loan sharks and it does not negate the message of the CPIN that in general there is a sufficiency of protection.

39. In the ASA for the UT at para 42 Mr Arafin submits the evidence overwhelmingly supports the conclusion that the appellant faces a real risk of harm on return, “as threats and violent reprisals are the hallmark of informal loan sharks in Bangladesh”. But, as stated above, this was not the tenor of the evidence that was adduced before the First-tier Tribunal.

40. Mr Arafin’s other line of attack is that, since the Judge found the appellant plausible and credible in his claim to owe some money to loan sharks, it was simply perverse of him to find that nonetheless (a) his family had not been threatened and (b) that the appellant was not at risk of serious harm on return. Mr Arafin submits that the Judge must have failed to apply the correct standard of proof. In the alternative, he submits that the perverse conclusion flows from the fact that the Judge wrongly held that there were material inconsistencies in the evidence of the appellant and his wife.

41. The Judge directed himself to apply the lower standard of proof at para [26]. The Judge’s adverse credibility assessment of the appellant at para [11] was sufficiently explained and justified in his ensuing analysis of each of the three elements of the protection claim. As well as reasonably finding the appellant to be an unreliable witness, it was also reasonably open to the Judge to find that the discrepancies between his evidence and his wife’s evidence about the number of lenders, the amount owed and the threats that were said to have followed were material, rather than trivial. Looking at the matter through the lens of Volpi v Volpi, the Judge was not clearly wrong in his findings of fact.

Ground 3

42. As to ground 3, Mr Arafin submits that the Judge wrongly dismissed the finding of the SCA that the appellant had been a victim of trafficking in Bangladesh and failed to apply paragraph 339K of the Rules.

43. The Judge correctly directed himself at para [22] of the Decision that the Tribunal was not bound by the decision by the SCA, and was better equipped than the SCA to make pertinent findings. The Judge gave this self-direction in the context of making an additional finding in the appellant’s favour beyond what had been found by the SCA, which was his finding that the appellant had been subjected to sexual violence by the Sheikh.

44. But the self-direction was also pertinent to the Judge’s analysis of the trafficking claim. Although the SCA found that the appellant had been subjected to domestic servitude in Bangladesh, as well as in Qatar and in the UK, this was not the appellant’s evidence. His evidence was that the domestic servitude had begun in Qatar. So, it was clearly open to the Judge not to adhere to a fictitious version of events which the appellant himself did not endorse, and hence not to treat the appellant as having been previously trafficked from domestic servitude in Bangladesh to domestic servitude elsewhere.

45. It is not suggested that Mr Arafin ran a case under para 339K in the First-tier Tribunal, and I do not consider that the Judge erred in law in not addressing such a case of his own motion. But even if I am wrong about that, the error is not material as the Judge gave sufficient reasons for finding that the appellant was not vulnerable to re-trafficking or other forms of exploitation, because (a) he was not at risk of harm from his creditors and (b) he could avail himself of state protection.

46. In the ASA for the UT, Mr Arafin cites extracts from the US Trafficking in Persons Report 2023 in support of a submission that state protection for victims of trafficking is inadequate. But as this report was not relied on before the First-tier Tribunal, the Judge cannot be criticised for failing to take it into account.

Conclusion

47. In conclusion, the Judge gave adequate and rationally sustainable reasons for finding against the appellant on the evidence before him, and no error of law is made out.

Notice of Decision

The decision of the First-tier Tribunal did not contain an error of law, and accordingly the decision stands. This appeal to the Upper Tribunal is dismissed.

Anonymity

The First-tier Tribunal made an anonymity order in favour of the appellant, and I consider that it is appropriate that the appellant continues to be protected by anonymity for the purposes of these proceedings in the Upper Tribunal.

Andrew Monson

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

6 March 2025