Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003077

First-tier Tribunal No: IA/09012/2022
HU/56298/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

19th June 2025

Before

UPPER TRIBUNAL JUDGE LANDES

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

R J
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr Ojo, Senior Home Office Presenting Officer (12 June 2025)
Mr Tufan, Senior Home Office Presenting Officer (29 November 2024)
For the Respondent: Mr Karim, Counsel instructed by Shahid Rahman, Solicitors (12 June 2025)
Ms McCarthy, Counsel instructed by Shahid Rahman, Solicitors (29 November 2024)

Heard at Field House on 12 June 2025 and on 29 November 2024

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, RJ 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 RJ. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. Although the Secretary of State has brought this appeal, for ease of reference when I refer to the appellant and respondent, I refer to them (other than in the heading) as they were before the First-Tier Tribunal.
2. This hearing follows my setting aside part of my original decision in this appeal issued on 21 January 2025 (see annex below for the set-aside decision to which reference should be made for the background). In that set aside decision I explained that I considered that there had been a procedural irregularity in respect of my conclusion on the Article 8 aspect of the grounds, because I had thought that the appellant’s counsel had made a concession which I appreciated having listened to the recording (after the matter was drawn to my attention by Mr Karim’s grounds of appeal to the Court of Appeal) she had not in fact made. I invited submissions in writing, but indicated that if either party wished for a hearing it could be fixed. The appellant indicated that she wished to have a hearing.
The hearing of 12 June
3. Unfortunately, although the set aside decision was served by the tribunal on the respondent it was sent to the email address for promulgated decisions and had not reached Mr Ojo. Mr Ojo was also unaware of the contents of the grounds of appeal to the Court of Appeal which Mr Karim had settled. Copies of both documents were sent to him and I adjourned briefly so Mr Ojo had sufficient time to read and consider the documents.
4. When we resumed, Mr Karim very helpfully agreed to make submissions first to assist Mr Ojo. Having heard the submissions of both representatives (which I only set out below insofar as necessary to explain my findings) I said that I found no error of law in the judge’s decision in respect of Article 8 ECHR (the appellant and her family members’ family life in the UK) and accordingly her decision allowing the appeal on Article 8 grounds stood. As I had said in the set aside decision, I said that I would repeat that part of the decision allowing the respondent’s appeal on asylum grounds in case there was any onward appeal. Mr Karim indicated that the appellant would be submitting that the situation in Bangladesh was fluid and I said that I appreciated that the specific situation in the appellant’s home area would be relevant. Both parties agreed given the extent of the findings which would need to be made that the asylum appeal should be remitted to the First-Tier Tribunal to decide.
The submissions heard in November 2024
5. Mr Tufan submitted that the judge simply did not refer to the respondent’s position on credibility. The respondent had explained in detail in the decision letter with reference to the interview why there were inconsistencies such that the appellant’s claim that she and her family had experienced problems in Bangladesh as a result of her father’s political involvement were not accepted and it was also not accepted that the appellant had experienced problems from her uncles following the death of her father. None of this was referred to, and it was not clear from the decision what the respondent’s case was. He referred me to the case of Malaba v Secretary of State for the Home Department [2006] EWCA Civ 820 at [20]. He noted Judge Singer’s points when granting permission referred to above. He submitted that the judge seemed to have considered that the relationship between the appellant and her nieces and nephews was a parental relationship, and that was something which could be challenged.
6. Ms McCarthy acknowledged that the judge did not expressly refer to section 8 of the 2004 Act, but said that the judge had fully considered the Home Office’s position. The Secretary of State did not point to any aspect with which it was suggested the judge had not dealt nor had the presenting officer complained that he had not been able to raise specific points whether in cross-examination or submissions (the judge had placed time limits on the hearing). If the Home Office were saying the basis on which findings of credibility were made was not adequately supported by the evidence, then it was for the Home Office to submit evidence to that effect. The judge did not accept all the claims made by the appellant; indeed she had rejected some with reasoning and accepted the Home Office case that the appellant was only a lower-level political supporter. She had explained why she considered that she accepted the Home Office case that the risk arising from the authorities was not made out. The Home Office case in relation to risk from the uncles was a small part of the overall reasoning and really amounted to questions of plausibility. The judge had not specifically mentioned section 8 of the 2004 Act but overall, she submitted the judge had dealt appropriately and adequately with credibility.
My analysis and conclusions on asylum grounds as expressed in my original decision
7. As Judge Singer pointed out, the refusal letter of January 2021 raises issues under section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.
8. Section 8 (1) of that Act provides “In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or a human rights claim, a deciding authority shall take account, as damaging the appellant’s credibility, of any behaviour to which this section applies.”
9. The respondent’s case was that the appellant’s behaviour had engaged section 8 (5) (failure to make an asylum claim or human rights claim before being notified of an immigration decision) because the appellant had not claimed asylum until August 2017 despite her student visa having been curtailed with no right of appeal in January 2014. The respondent explained why the appellant’s explanation that she expected that things would cool down was not considered to be reasonable and it was noted that the problems she claimed in Bangladesh existed before she arrived in the UK.
10. The respondent also considered that the appellant’s behaviour had engaged sections 8 (2) (a) (behaviour designed or likely to conceal information), (b) (behaviour designed or likely to mislead) and 8 (3) (the subsection includes a range of behaviour which is treated as designed or likely to conceal information or mislead – the particular type is not specified by the respondent). This was because it was said when the appellant was encountered by immigration officials at a residential property (in August 2017) she said she had no identification, did not give the correct name or date of birth, said she was a British citizen and made excuses about why she could not provide a photograph of her British passport. It was said that she did provide her correct details but only after she had been informed she would face arrest if she continued to provide false information.
11. Judge Murdoch makes no reference at any point in her decision to these matters which the respondent pointed to as damaging the appellant’s credibility under the provisions of section 8. The case of KG (Turkey) v Secretary of State for the Home Department [2022] EWCA Civ 1578 held at [33]: “the s.8 factors are to be taken into account as part of a holistic assessment of credibility …..So long as it is clear that the decision maker has specifically considered the potentially adverse impact of the relevant period of delay upon credibility, and has given a sufficient explanation for finding that the delay is (or is not) damaging, there is no need for specific mention of the statute or its requirement”.
12. The judge did not consider the section 8 factors as part of a holistic assessment of credibility. Nowhere does the decision specifically refer to the appellant’s delay in claiming asylum or to the contention that she tried to hide her identity by providing false information when she was encountered by immigration officers. The judge says at [22] “Having considered the evidence in the round, I do not consider that the respondent has identified any significant credibility issues with the appellant’s account”. She continued to say that the account was internally consistent, that the account of political activities was broadly consistent with country evidence, and it was not implausible. That is simply not adequate as there is no consideration of the section 8 factors. If the judge did not overlook the section 8 factors, but either accepted the appellant’s explanation or considered that the factors pointed to by the respondent did not come within the provisions of section 8 of the 2004 Act then she should have made specific findings with at least brief reasoning. The absence of such consideration means that the decision is inadequately reasoned.
13. Even aside from the judge’s lack of consideration of the section 8 factors, whilst I do not consider that there was a need for the decision to set out what the respondent’s case against the appellant was (c f para 2 b) grounds) as that was set out sufficiently in the decision letter, I consider that the judge did fail to provide her reasons for concluding that the respondent had not identified any significant credibility issues with the appellant’s account and such failure does amount to an error of law. The Home Office had pointed to what they said were a number of inconsistent and implausible features of the appellant’s account which damaged the appellant’s credibility; whilst I do not consider the judge needed to go in detail through every single issue, she should still have explained at least in a few sentences why it was she concluded that no significant credibility issues or implausible features were identified, so that the respondent could understand why their contentions were not accepted (as the case of Budhatoki (reasons for decisions) [2014] UKUT 00341 quoted in the grounds explains). Whilst the risk from the uncles was a relatively small part of the overall reasoning, the credibility of the risk from the uncles could not be separated from the overall credibility of the family having experienced problems in Bangladesh as a result of the father’s political involvement.
Conclusion on asylum grounds
14. The judge’s decision allowing the appeal on asylum grounds must therefore be set aside for error of law. Clearly an error going to the credibility of the appellant’s account/evidence is a material one.
15. For the avoidance of doubt, as my decision issued in January 2025 explains, there was and is jurisdiction to consider the appellant’s asylum claim.
Conclusion on Article 8 grounds
16. Mr Karim’s submissions were that the adverse credibility points taken by the respondent were limited to the asylum case, and the points made under section 8 of the 2004 Act did not affect the appellant’s case about her family life in the UK.
17. Indeed, as Mr Karim pointed out, paragraph 2 a) of the grounds only specifically challenged the judge failing to provide adequate credibility reasoning in respect of the findings at paragraphs 16 to 26 of the judge’s decision which were the paragraphs of the judge’s decision before the judge considered the appellant’s family life in the UK.
18. The decision letter of 31 August 2022 (under the heading “exceptional circumstances”) did not challenge the credibility of the support the appellant gave to her sister, brother-in-law, nieces and nephews but rather said that the appellant’s brother-in-law could continue to support the family, and social and family ties could be maintained by visits, phone calls and social media.
19. It is right that the general credibility points which are raised under section 8 of the 2004 Act such as not making a claim at the earliest possible opportunity, and giving false information could suggest that the appellant is not a person who is concerned to tell the truth. However, the judge’s findings from [28] onwards are not based simply on the appellant’s word but on the appellant’s sister and brother-in-law’s evidence [28], [29], [30] and the medical evidence [30], [32]. Indeed the judge only refers to the appellant’s evidence in this context at [31] and it is clearly consistent with the evidence of her sister and brother-in-law [31]. In other words, the judge nowhere relies on the unsupported evidence of the appellant when making her findings and indeed mainly relies on evidence other than that of the appellant herself.
20. Mr Ojo submitted that the credibility findings with respect to the asylum claim were relevant because the judge found that the appellant’s sister’s health was adversely affected when their brother was abducted in 2015, which abduction was challenged. It is however clear that the appellant’s sister had to stay in hospital for several weeks as an inpatient after a psychotic breakdown during this time. The reasons for the breakdown are not relevant, even if the judge referred to them. What is relevant is the fact of the sister’s mental illness. The judge’s reasoning why the sister had a breakdown at that point could not have affected her conclusions about Article 8 ECHR.
21. It is right that the judge found that there would be very significant obstacles to the appellant’s integration into Bangladesh as a single woman without a family home to return to, a pre-existing support network, a job or income. That finding did depend on the findings made in the asylum claim, as the judge found the appellant could not move in with her mother and brother and could not connect with her extended family in Bangladesh, because her uncles had caused her immediate family harm [25].
22. Nevertheless, despite the judge’s findings, although she found the appellant satisfied paragraph 276ADE immigration rules, she did not carry this over into the proportionality assessment. She begins [28] “now turning to the Article 8 claim” as if she is deciding something entirely separate, and when she considers factors weighing in favour of the appellant, does not refer at all to what the appellant’s circumstances would be on return to Bangladesh. I agree with Mr Karim that the judge certainly treated the findings about the appellant’s family life in the UK as if they were alternative findings.
23. Mr Ojo submitted that the judge did not factor in that the appellant did not meet the requirements of immigration rules but when the decision is read as a whole, she clearly did. Her self-direction on the law at [14] shows that she appreciated that she would only be looking at the factors set out in section 117B of the 2002 Act where the appellant did not meet the immigration rules and she appreciated the strength of the public interest. Her point at [34 a] that the appellant had circumvented the requirements of immigration rules by overstaying was, when the decision is read as a whole with the self-direction, a factor additional to the base factor that she was deciding the Article 8 claim about the appellant’s family life in the UK on the basis the appellant did not meet the requirements of immigration rules.
24. I therefore agree with Mr Karim that the credibility factors relevant to the asylum claim and to the claim under paragraph 276ADE can be separated out and cannot be taken to infect the judge’s conclusions about the appellant’s family life with her family in the UK and their family life with her. I also agree that the judge decided this aspect of the claim on the basis the appellant did not meet the requirements of immigration rules.
25. The respondent is therefore left with 2 c) of the grounds, as given my conclusions above, 2 d) does not add anything to 2 c) as the errors in the assessment of the credibility aspects of the asylum claim do not infect this part of the Article 8 claim.
26. When dealing with whether the judge had failed to provide adequate reasons as to why it would be unjustifiably harsh on the appellant’s nieces and nephews if the appellant were to be removed to Bangladesh, Mr Ojo submitted that the judge had been in effect deciding that the appellant had a parental relationship with her nieces and nephews and that the case of R (on the application of RK) v Secretary of State for the Home Department (s 117B(6); “parental relationship) IJR [2016] UKUT 31 (IAC) which he submitted was strikingly similar, was relevant. However that case was a judicial review case about the meaning of “parental relationship”. The judge did not suggest that the appellant had a “parental relationship” with her nieces and nephews. If she had, she would have referred to section 117B (6) of the 2002 Act when allowing the appeal.
27. The background was that the judge found that the appellant had lived with her sister and brother-in-law since she was a teenager [28], so had lived with them before the children were born [31]. It was in that context and in the context that the appellant’s sister having been taken ill in 2015 and suffering with illness subsequently, had a psychotic relapse in September 2023 (so less than a year before the judge’s decision) which was so severe that she had to be detained to protect family members, that the judge found that the appellant played an irreplaceable role as the children’s carer and they were very close to her. In particular the appellant was the main caregiver for the youngest child who had had recent surgery to correct an anorectal malformation, had a colostomy bag and needed constant care (provided by the appellant) when in hospital as well as at home. The children called the appellant by a Bengali term for mother and saw her as another mother. The finding that there was a strong family life between all concerned was open to the judge, as was the finding that the appellant’s removal would significantly damage the children’s well-being. In those circumstances, the judge whilst recognising what she reminded herself was a strong public interest in removal [37], found that there were unjustifiably harsh consequences such that the public interest was outweighed.
28. The decision is fully reasoned. It is right that the judge did not say in a sentence something like “although if the appellant were removed, the children would remain in the UK with both their parents, it would still be unjustifiably harsh because….”, but by explaining that family life was strong, that the appellant’s role was irreplaceable and that the appellant’s removal would significantly damage the children’s well-being the judge has explained why she concluded the appellant’s removal would be unjustifiably harsh despite the children having two parents. This is not simply a case of a relative who comes to stay with an established family in the UK and helps with the children.
29. The case of Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 is a reminder that the Upper Tribunal should not rush to find an error of law because they might have reached a different conclusion on the facts from the judge or expressed themselves differently. There is also not necessarily a misdirection just because every step is not fully set out. Different tribunals without illegality or irrationality can reach different conclusions on a case.
30. In this case the judge explained the facts she had found and why she had found them, directed herself on the law correctly, applied the law to the facts she had found and reached a conclusion which cannot be said to be irrational or perverse.
31. I agree with Mr Karim that there is no error of law in the judge’s decision relating to the appellant and her family’s family life in the UK.
32. Given the extent of the necessary credibility findings, the asylum appeal will be remitted to the First-Tier Tribunal.
Notice of Decision
The judge’s decision allowing the appeal on asylum grounds and finding that there would be very significant obstacles to the applicant’s integration into Bangladesh contains errors of law and is set aside with no findings preserved.
The judge’s decision allowing the appeal on Article 8 grounds based on family life in the UK ([32] – [37] and the last sentence of [38]) contains no errors of law and stands.
The appeal on asylum grounds is remitted to the First-Tier Tribunal at Hatton Cross to be heard by a judge other than those who have already heard asylum appeals by the appellant.

A-R Landes

Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 June 2025

Annex (set aside decision)

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003077

First-tier Tribunal No: IA/09012/2022
HU/56298/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE LANDES

Between

R J
(ANONYMITY ORDER MADE)
Appellant before the FTT
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent before the FTT

Order Regarding Anonymity

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

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

SET ASIDE DECISION UNDER RULE 43 OF THE TRIBUNAL PROCEDURE (UPPER TRIBUNAL) RULES 2008
1. This appeal has a long procedural history, but most recently the First-Tier Tribunal, by decision promulgated on 5 June 2024, allowed RJ’s appeal on both asylum and Article 8 grounds.
2. The Secretary of State appealed with permission granted by the First-Tier Tribunal on ground 2 only. By decision and reasons issued on 21 January 2025 I did not admit the Secretary of State’s renewed application for permission to appeal on ground 1, but found ground 2 a) to be made out in respect of the judge’s dealing with credibility and set aside the First-Tier Tribunal’s decision with no findings preserved.
3. In the remainder of this decision, and for the avoidance of doubt, I refer to the parties as they were before the First-Tier Tribunal.
4. The appellant sought permission in time to appeal to the Court of Appeal. The grounds invite me, in the alternative, to review my decision and to set it aside under Upper Tribunal Procedure Rules 43 (1) (a) and (2) (d). This is because of the second ground, my findings in respect of the Article 8 aspect of the appeal. I recorded (at [31] of my decision) that the appellant’s counsel at the hearing had said that if the judge was wrong in her assessment of credibility then everything including the Article 8 assessment needed to be looked at again. On that basis I merely observed that was a reasonable conclusion and set the entire decision aside with no findings preserved. The grounds aver that there has been a procedural error and exhibit witness statements to the effect that no concession was made at the hearing and indeed it was argued that the Article 8 findings could be separated out. It is on that basis that I am invited to reverse my error of law determination under rule 43 of the procedure rules.
5. I was surprised at the time of the hearing that the concession was made bearing in mind the terms of the earlier discussion and what I had said in that discussion about the Secretary of State’s grounds insofar as they averred inadequacy of reasons in the judge’s conclusions as to Article 8 ECHR. As I was made aware the appellant was obtaining a transcript, I have listened to the audio. It is unfortunately unclear in that the voices of the representatives are very faint. I cannot hear what they are saying at the end of the hearing very clearly as the noise of my typing blocks it out. However on listening to the entirety of the hearing I have concluded that the appellant’s counsel and myself must have been at cross-purposes; the point arose at the end of the hearing when we were discussing the venue for remaking if I did conclude that the judge had made an error of law, and what the consequences were if I found that the judge had erred in her assessment of credibility as averred by the respondent. My note that the appellant’s counsel had agreed that if there was an error of credibility everything needed to be looked at again, which I took to be a concession that Article 8 needed to be looked at again, was in the context of a discussion about asylum and so credibility is likely to have been from counsel’s intention and perspective limited to those matters, whereas I mistakenly took it to be a wider concession and did not question her further.
6. I have considered the terms of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the procedure rules”). Rule 43 (1) of the procedure rules provides:
“The Upper Tribunal may set aside a decision which disposes of proceedings, or part of such a decision, and re-make the decision or the relevant part of it, if –
(a) the Upper Tribunal considers it is in the interests of justice to do so; and
(b) one or more of the conditions in paragraph (2) are satisfied.”
7. The first question is whether the decision is one which disposes of proceedings. Although of course the effect of my decision is that the appeal continues in the First-Tier Tribunal, I consider that the decision does dispose of proceedings in the sense that there are no further proceedings before the Upper Tribunal.
8. I do consider that it is in the interests of justice to set aside the decision. If, as I have concluded, I was mistaken as to counsel conceding a point, the effect was that I did not hear full argument from counsel or the respondent’s representative on the point. It is in the interests of justice to deal with that mistake if possible without requiring the parties to submit to the greater time and expense of an appeal.
9. The condition in paragraph 43 (2) which the appellant invites the Upper Tribunal to find is satisfied is (2) (d) that “there has been some other procedural irregularity in the proceedings.” I consider that there has been a procedural irregularity, rather than a substantive irregularity. I consider that there has been a procedural irregularity because as I thought the appellant’s counsel had made a concession which she did not in fact make I did not ask for further submissions on the point from either representative.
10. I therefore set aside my decision of 21 January in respect of the second sub paragraph under the hearing “notice of decision” namely “the judge’s decision contains errors of law and is set aside with no findings preserved.” The decision on costs and on the non-admission of the respondent’s renewed application for permission to appeal on ground 1 stands.
11. I appreciate the basis on which the appellant invites me to remake the decision at least in respect of the Article 8 aspect, but it is a matter on which the respondent is entitled to make submissions, as I did not hear full submissions on the point bearing in mind my thinking that a concession had been made. I give directions below for the remaking.
12. For the avoidance of doubt, I see no proper basis for changing my decision so far as the First-Tier Tribunal’s allowing of the claim on asylum grounds is concerned. That has already been fully argued before me without any concessions being made and whatever my ultimate decision on the First-Tier Tribunal’s allowing of the claim on Article 8 grounds my intention would be to issue a decision on remaking which would replicate my earlier conclusions on asylum and error of law (thus preserving the appellant’s ability to appeal further if so advised).
Notice of Decision
That part of the decision under the above reference number holding “The Judge’s decision contains errors of law and is set aside with no findings preserved” and remitting the appeal to the First-Tier Tribunal at Hatton Cross is set aside under the provisions of rule 43 (1) (a) and (2) (d) of the Tribunal Procedure (Upper Tribunal) Rules 2008.
That part of the decision will be remade before me in the Upper Tribunal
Directions
The parties are invited to file and serve any further submissions they wish to in writing on the Article 8 issue within 14 days from the date of issue of this decision on the footing that I will then proceed to remake the decision after 14 days without any further hearing.
If either party wishes a hearing to be held for the remaking they should inform each other and the tribunal as soon as possible and in any event within 14 days of the issue of this decision and a hearing will then be arranged instead of written submissions.

A-R Landes
Judge of the Upper Tribunal
Immigration and Asylum Chamber

4 March 2025