Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003856

First-tier Tribunal No: PA/52470/2023
LP/00866/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 12 March 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE L MURRAY

Between

RAC
(ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr Karim, Counsel instructed by Barclay Solicitors
For the Respondent: Miss Young, Senior Home Office Presenting Officer

Heard at Field House on 21 February 2025

DECISION AND REASONS

Introduction
1. The Appellant is a national of Bangladesh. He appealed against the Respondent’s decision dated 6 April 2023 refusing his protection claim. His appeal was dismissed by First-tier Tribunal Judge Khan in a decision promulgated on 29 June 2024.
2. Permission to appeal was granted by Upper Tribunal Judge McWilliam on 3 September 2024 on the grounds that it was arguable that the First-tier Tribunal (FTT) fell into Mibanga error (Mibanga v SSHD [2005] EWCA Civ 367). She found it arguable that the First-tier Tribunal Judge (FTTJ) did not consider the evidence in the round when reading paragraph 32 of the decision. It was further arguable that the finding of the FTTJ that it was not credible that the Appellant would be targeted was inadequately reasoned in light of the background evidence relating to family members of the Bangladesh Nationalist Party (“BNP”). Permission was granted on all grounds as the remaining grounds in relation to the protection appeal were arguable in the context of the grounds generally.
3. The matter came before me to determine whether the First-tier Tribunal had erred in law, and if so whether any such error was material such that the decision should be set aside.
Error of Law – Grounds of Appeal
4. The grounds seeking permission to appeal argue that the approach to the documentary evidence is flawed as the FTTJ fell into the Mibanga error and failed to engage with the documentary evidence and explain why it did not assist the Appellant’s case and failed to explain why the documentary evidence was found to be “speculative” (Ground 1).
5. The Appellant argues that the FTT failed to make clear findings as to whether there was an arrest warrant for the Appellant and attached limited weight to the warrant making irreconcilable findings (Ground 2).
6. Ground 3 impugns the credibility findings. It is argued that, having accepted that the Appellant’s father was a member of the BNP and a Ward President, the FTTJ failed to consider the objective evidence which confirmed that family members of the opposition in Bangladesh are persecuted. Further, it is argued that the credibility findings are flawed because, in rejecting the Appellant’s claim that he was the subject of two attempted kidnappings, the FTTJ erred in finding that the Appellant did not provide a reason for why the Awami League (AL) members had an interest in him. It is also asserted that the FTTJ misunderstood the Appellant’s case as he never asserted that the AL members had an interest in him in isolation to his father. It is asserted that the Judge’s apparent reasoning that the Appellant had to be politically active and aware of his father’s political activity to be the victim of kidnappings was perverse. The credibility findings are also impugned as it is argued that the rejection of the Appellant’s claim in relation to an attack on his father’s shop was due to the fact that the Appellant relied on “third party evidence” but that no issues with this evidence had been identified. It is further argued that the FTTJ’s findings that the Appellant’s house was not stormed were based on impermissible inherent plausibility findings and mischaracterisation of the Appellant’s evidence as inconsistent when it was clarificatory. The credibility findings are further impugned as it is asserted that there was consistency of evidence as between the witnesses as to the existence of a land dispute with AL members and any inconsistency as to whether there was an additional land dispute with the Appellant’s uncle was a different matter. Finally, the adverse credibility findings are impugned on the basis that the FTTJ repeatedly described the Appellant’s claim as “incoherent” but failed to give reasons for this finding.
7. Ground 4 asserts that the FTTJ erred in the assessment of the credibility of the Appellant’s witnesses in rejecting his sister’s evidence as evasive because she responded that she was “not sure” or “I do not know”. It is submitted that the rejection of his partner’s evidence in relation to the land dispute was flawed as the witnesses were consistent.
8. Ground 5 asserts that the FTTJ applied the wrong test of “insurmountable obstacles” to paragraph 276ADE of the Immigration Rules and appeared to imply that the Appellant’s partner had been to Bangladesh when she was from Morocco. It is further submitted that on any reasonable view the Appellant’s removal would breach Article 8 on the facts of his case.
The hearing
9. Mr Karim expanded on the grounds of appeal and at my request took me through the documents which it was said had not been adequately engaged with by the FTTJ. He submitted that there was a classic Mibanga error as the Appellant’s narrative was rejected and the documents then rejected as a result. The FTTJ’s treatment of the arrest warrant was problematic and contradictory and it was unclear as to why, if it had been obtained to bolster his account, limited rather than no weight was attached. In relation to Ground 3, the FTTJ misunderstood the Appellant’s case as it had never been his case that he was at risk in isolation from his father. There was no apparent reasoning as to why third party evidence was unreliable and the FTTJ’s conclusions as to whether a mob could break down a locked door and whether the Appellant could escape from the rear of the house were based on the FTTJ’s own views and not supported by evidence. The Appellant’s sister’s answers to questions could not fairly be characterised as evasive and the evidence of the witnesses was consistent with regard to the land dispute. With regard to Article 8, in addition to the application of the incorrect test, the findings were irrational in light of the nationality of the Appellant’s wife and his circumstances.
10. Miss Young relied on the Rule 24 Response and submitted that the findings in relation to the documents could not be read in isolation and should be read from paragraph 15 onwards. Adequate reasons were given for the rejection of the arrest warrant and it was open to the Judge to find that in light of its provenance it was not a reliable document. There was no error in attaching limited weight to hearsay evidence and it was also open to the Judge to reject the Appellant’s account that 40-50 people stormed his house as it was inconsistent with his previous evidence. It was open to the FTTJ to reject the Appellant’s sister’s evidence as evasive. Whilst the wrong wording had been used in the FTTJ’s consideration of paragraph 276 ADE of the Immigration Rules it was clear that the FTTJ had the correct test in mind as the correct test was set out at paragraph 10.
11. In response, Mr Karim emphasised that the FTTJ used the Appellant’s narrative to justify her rejection of the documentation in the appeal and argued that the FTTJ did not reject the third party evidence because it was hearsay but appeared to conclude that it was automatic that third party evidence should be rejected. In any event the strict rules of evidence did not apply and there was an absence of reasoning.
Conclusions – Error of Law
12. The Respondent disputed in the reasons for refusal letter (RFRL) that the Appellant’s father was a former member of the BNP or Ward President and that he was involved in a land dispute. The FTTJ accepted the Appellant’s father was a member of the BNP but not that this led to the incidents described by the Appellant with AL party members. She did not accept that there was a land dispute.
13. It is the Appellant’s case that as a result of the land dispute he was the victim of two attempted kidnappings, his father’s shop was attacked and a group of individuals attempted to storm his family home. The FTTJ rejected the Appellant’s account of all of these events.
14. The Appellant alleges that the FTTJ has fallen into a Mibanga type error at paragraphs 32 and 36 of the decision. The relevant parts of those paragraphs read as follows:
“32. … The Appellant has submitted an arrest warrant in support of this part of his account. In view of my findings above, wherein I do not accept that the incidents described by the Appellant occurred (kidnappings, attack on shop and storming of home), I further find that police interest in the Appellant is also not plausible. I have carefully considered the document submitted and I note that despite leaving Bangladesh in 2019, the arrest warrant is dated 22 August 2023 (after the date of the RFRL) and the Appellant has not submitted any further arrest warrants dated before 2023 or after. I note that the Appellant’s mother states in her witness statement that she has bribed police officers to prevent future harassment. Further, in her oral evidence, during cross examination, the Appellant’s sister stated that the Appellant obtained the arrest warrant online, later stating that their mother hired someone to obtain the document. In considering the Appellant’s evidence and that of his mother and sister, also taking into account the Respondent’s oral submissions and reasons recorded in the RFRL that forged documents are readily available in Bangladesh, I attach limited weight to the arrest warrant. To be clear, I find that the Appellant has obtained this document to bolster his asylum claim.”
And:
Documents
“36. The Appellant has submitted several documents (arrest warrant, untitled document signed by Md Z R, witness statement, letter to Officer in Charge, injury certificates and complaint letter). In view of my findings above that the incidents as claimed by the Appellant did not occur (kidnappings, attack on shop and storming of home), I attach limited weight to these documents.”
15. The Respondent argues in the rule 24 Response that the FTTJ does not state that ‘because of the previous findings the police interest is rejected’. Reliance is placed on QC (verification of documents; Mibanga duty) [2021] UKUT 33 (IAC) and it is submitted that the FTTJ has to start somewhere, and that what matters is whether the decision contains legally adequate reasons for the outcome. The FTTJ is said to be rationally entitled to place less weight on some items, without obligation to deal with every item.
16. In QC the Mibanga duty is summarised in the headnote as follows:
The Mibanga duty
(2) Credibility is not necessarily an essential component of a successful claim to be in need of international protection. Where credibility has a role to play, its relevance to the overall outcome will vary, depending on the nature of the case. What that relevance is to a particular claim needs to be established with some care by the judicial fact-finder. It is only once this is done that the practical application of the “Mibanga duty” to consider credibility “in the round” can be understood (Francois Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367). The significance of a piece of evidence that emanates from a third party source may well depend upon what is at stake in terms of the individual’s credibility.
(3) What the case law reveals is that the judicial fact-finder has a duty to make his or her decision by reference to all the relevant evidence and needs to show in their decision that they have done so. The actual way in which the fact-finder goes about this task is a matter for them. As has been pointed out, one has to start somewhere. At the end of the day, what matters is whether the decision contains legally adequate reasons for the outcome. The greater the apparent cogency and relevance of a particular piece of evidence, the greater is the need for the judicial fact-finder to show that they have had due regard to that evidence; and, if the fact-finder’s overall conclusion is contrary to the apparent thrust of that evidence, the greater is the need to explain why that evidence has not brought about a different outcome.
17. The issue in relation to the FTTJ’s treatment of the documents is whether there has been an artificial separation amounting to a structural failing in dealing with credibility separately from the documents. Further, much depends on what those documents purport to show. I take account of the fact that there may be cases where concerns over the veracity of a claim and its account may be so clear-cut that the judicial fact-finder is driven to the rejection of other evidence, such as supporting documents, even though these may appear to be authentic (AR v the Secretary of State for the Home Department [2017] CSIH 52).
18. The Appellant relied on a number of documents as noted by the FTTJ at paragraph 36 of the decision (above). The Appellant claims that the documents relate to a false case made against him by the AL (paragraph 14 witness statement). The documents name the Appellant as a defendant in an assault with a knife in an incident which is described as taking place in June 2022 when the Appellant was in the UK. There is an injury certificate in the name of the individual the Appellant is said to have assaulted. A police summons in the Appellant’s supplemental bundle before the First-tier Tribunal is dated 22 August 2023.
19. It is the Appellant’s case that the documents are supportive of his claim that members of the AL were motivated to persecute him because, after he left Bangladesh, they made a false claim against him. I conclude that the documents were therefore relevant to the question of whether the events of 2019 occurred. Contrary to the Respondent’s assertion in the Rule 24 response, the FTTJ did quite clearly state at paragraph 36 of the decision that, in view of her findings that the incidents claimed did not occur, she consequently attached limited weight to the documents. Her findings that the incidents did not occur were based on her adverse credibility findings that were made in isolation of the documents in relation to the ‘false claim’. Although the FTTJ’s reasons in paragraph 32 for placing little weight on the arrest warrant are rationally sustainable, no reasons are provided at paragraph 36 for placing little weight the remainder of the documents save for having rejected the account on credibility grounds. I find therefore that this structural failing is a Mibanga error and the documents were not assessed in the round. I therefore find that Ground 1 is established.
20. Having considered the entirety of the evidence, I also conclude that Ground 3 is made out. I find that a number of the adverse credibility findings are not sustainable. Having accepted that the Appellant’s father was a member of the BNP and a Ward President for the party, the FTTJ did not consider the objective evidence that family members of the opposition can be targeted. The CPIN “Bangladesh: Political parties and affiliation” September 2020 was before the FTTJ and stated at paragraph 2.4.4 that:
2.4.4 The system of governance is based on political patronage. Law enforcement agencies are politicised in favour of the ruling AL and are used to supress and silence the opposition and those affiliated with it, including family members, particularly during times of heightened political tension, such as during election campaigns, student elections or during political demonstrations. Whilst some police officials discreetly support the BNP, most are allied to the ruling party and are alleged to be recruited on the basis of their political affiliation (see Political influence on the police).
21. The FTTJ’s reasoning for rejecting the Appellant’s claim that he was the subject of two kidnapping attempts was that if a land dispute existed between the Appellant’s father and AL party members, it was possible that the AL members may have had an interest in the Appellant’s father, but, she concludes that the Appellant had provided no explanation as to why AL members would be interested in the Appellant as opposed to his father. This part of his claim is described as “incoherent”. However, as argued in the grounds, the Appellant had in fact provided an explanation in answer to question 74 of his interview that “they did it so they could take the deeds and paper for the property”. The FTTJ concludes at paragraph 24 that she does not accept that there was any reason for AL members to target the Appellant as he was not politically active and not aware of his father’s activity. She found at paragraph 25 that it was “implausible” that the Appellant would be targeted in the way described. However, it was not the Appellant’s case that the AL members were targeting him in isolation from his father, he had provided an explanation that was consistent with the background evidence for their interest in him and the background evidence showed that family members were also targeted. I therefore find that the FTTJ’s reasoning with regard to the rejection of the kidnapping attempts failed to take material evidence into account.
22. Whilst I find that it was open to the FTTJ to reject the Appellant’s explanation regarding the difference in the number of individuals who stormed his house, I find that the reasoning in relation to the finding that the Appellant’s account of the storming of his house was “incoherent and so implausible as to be capable of belief” is flawed. The FTTJ found it “incoherent and implausible” that a large group of people were unable to enter due to a lock on the Appellant’s door and further implausible that the Appellant and members of his family were able to leave through the back door without being captured or attacked by the same individuals.
23. In HK v SSHD [2006] EWCA Civ 1037 Neuberger LJ made the following remarks:
29. Inherent probability, which may be helpful in many domestic cases, can be a dangerous, even a wholly inappropriate, factor to rely on in some asylum cases. Much of the evidence will be referable to societies with customs and circumstances which are very different from those of which the members of the fact-finding tribunal have any (even second-hand) experience. Indeed, it is likely that the country which an asylum-seeker has left will be suffering from the sort of problems and dislocations with which the overwhelming majority of residents of this country will be wholly unfamiliar. The point is well made in Hathaway on Law of Refugee Status (1991) at page 81:
"In assessing the general human rights information, decision-makers must constantly be on guard to avoid implicitly recharacterizing the nature of the risk based on their own perceptions of reasonability."
30. Inherent improbability in the context of asylum cases was discussed at some length by Lord Brodie in Awala –v- Secretary of State [2005] CSOH 73. At paragraph 22, he pointed out that it was "not proper to reject an applicant's account merely on the basis that it is not credible or not plausible. To say that an applicant's account is not credible is to state a conclusion" (emphasis added). At paragraph 24, he said that rejection of a story on grounds of implausibility must be done "on reasonably drawn inferences and not simply on conjecture or speculation". He went on to emphasise, as did Pill LJ in Ghaisari, the entitlement of the fact-finder to rely "on his common sense and his ability, as a practical and informed person, to identify what is or is not plausible". However, he accepted that "there will be cases where actions which may appear implausible if judged by…Scottish standards, might be plausible when considered within the context of the applicant's social and cultural background".
24. In KB & AH (credibility-structured approach: Pakistan) [2017] the Upper Tribunal concluded that plausibility is a valid indictor of credibility but requires caution in its approach. I conclude that the finding that it is both “incoherent and implausible” that the attackers would not have gained entry and the Appellant and his family would have been unable to escape is based on conjecture or speculation in the absence of findings grounded in the evidence as to why this could not happen. Inadequate reasons have been provided as to why the Appellant’s account was so implausible as to be incapable of belief.
25. It follows that I find that the FTTJ’s assessment of the credibility of the Appellant’s account cannot stand as I find that Grounds 1 and 3 are made out. I therefore do not deal with the remaining impugned credibility findings.
26. The grant of permission expresses the view that ground 5 is weak and I do not find that there is an error of law in the FTTJ’s assessment of Article 8. The FTTJ correctly addresses the “very significant obstacles” test at paragraph 43 of the decision and although the FTTJ refers to “insurmountable obstacles” in relation to return at paragraph 54 the previous self-direction, citation of relevant case law and the matters taken into account demonstrate that the FTTJ had the correct test and principles in mind and applied them to the evidence.
27. The FTTJ was also clearly aware that the Appellant’s partner was a Moroccan national (paragraph 62) and I do not find that the word “return” implies that the FTTJ mistakenly believed that she had lived in Bangladesh before. Adequate reasons were given for concluding that family life could continue in Bangladesh and I reject the Appellant’s argument that no reasonable decision maker could come to the decision she did.
28. I have considered whether the decision should be re-made in the Upper Tribunal with regard to the decisions of Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) and AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512. The credibility findings cannot stand and due to the nature and extent of fact finding the appeal should be remitted to the First-tier Tribunal with no findings preserved.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of a material error of law.
I set the decision aside and the appeal is remitted to the First-tier Tribunal.

L Murray

Deputy Upper Tribunal Judge
Immigration and Asylum Chamber

11 March 2025