Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004036

First-tier Tribunal No: PA/64540/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 12th of March 2025

Before

UPPER TRIBUNAL JUDGE MCWILLIAM
DEPUTY UPPER TRIBUNAL JUDGE LOKE

Between

MU
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A. Swain, Counsel instructed by Londonium Solicitors
For the Respondent: Ms S. Cunha , Senior Home Office Presenting Officer

Heard at Field House on Thursday 20 February 2025

DECISION AND REASONS

BACKGROUND

1. The Appellant appeals against the decision of First-tier Tribunal (FtT) dated 15 July 2024 (“the Decision”) dismissing his appeal against the decision of the Secretary of State dated 24 November 2023 refusing his application for asylum made on 13 November 2019.

2. The Appellant filed an application for permission to appeal with the First-tier Tribunal on 26 July 2024. This application was refused by the FtT on 20 August 2024. The Appellant filed a further application for permission with amended grounds to the Upper Tribunal. Permission to appeal was granted on 15 September 2024 by Upper Tribunal Judge Gill, granting permission for all grounds to be argued.

3. The Grounds relied on by the Appellant can be summarised as follows:

Ground 1: the Judge erred in assessing the Appellant’s evidence and failed to apply the principles laid out in MAH (Egypt) v Secretary of State for the Home Department [2023] EWCA Civ 216.

Ground 2: The Judge did not take into proper consideration the objective evidence regarding the prevalence of malicious prosecutions which were politically motivated.

Ground 3: The Judge failed to take into account core evidence which supported the Appellant’s claim; the medical evidence and documentary evidence.

Ground 4: The Judge made irrational findings with respect of the documentary evidence provided in support of the Appellant’s claim.

Ground 5: The Judge failed to consider the inconsistencies in the Appellant’s account in accordance with R v Lucas [1981] QB 720.

4. In granting permission, Upper Tribunal Judge Gill stated:

It is arguable that the Judge of the First-Tier Bowen may have erred in his assessment of the credibility of the appellant’s evidence, as contended in ground 1. Arguable the comments made by the judge in relation to the appellant’s sur place activities as set out at Paras 7(vii), (viii) and (ix) of the grounds indicate that he may have erroneously required corroborating evidence in relation to the appellants evidence about alleged events in Bangladesh, contrary to his self- direction in the first sentence of para 36.
Issue

5. Our task is to determine whether the First-tier Tribunal made a material error of law. We are not determining the appeal against the decision of the SSHD. It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. It does not matter the we would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.

6. We remind ourselves of the following principles that the law says must apply when considering. We summarise those, having considered: KM v Secretary of State for the Home Department [2021] EWCA Civ 693 AH (Sudan) v SSHD [2007] UKHL 49, AA (Nigeria) v SSHD [2020] EWCA Civ 1296, MA (Somalia) v SSHD [2010] UKSC 49 and Volpi & Anor v Volpi [2022] EWCA Civ 464:

1. The First-tier Tribunal is an expert tribunal and an appellate court should not rush to find a misdirection an error of law merely because it might have reached a different conclusion on the facts or expressed themselves differently
2. The UT should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
3. The UT should not be astute to characterise as an error of law what, in truth, is no more than a disagreement with the UT's assessment of the facts.
4. Where a relevant point is not expressly mentioned by the First-tier Tribunal, the court should be slow to infer that it has not been taken into account.
5. The UT is an appellate court and it is bound, unless there is compelling reason to the contrary, to assume that the First-tier Tribunal judge has taken the whole of the evidence into his consideration. The mere fact that the First-tier Tribunal does not mention a specific piece of evidence does not mean that he overlooked it.
6. Experienced judges in this specialised tribunal are to be taken to be aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically.
7. Reasons for judgment will always be capable of having been better expressed. An appellate 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.
8. Decisions should be respected unless it is quite clear that the First-tier Tribunal has misdirected itself in law.
9. The focus should be on the way the First-tier Tribunal performed the essence of the task required

7. If we determine that the Decision does contain an error of law, we then need to decide whether to set aside the Decision in consequence. If we set the Decision aside, we must then either re-make the decision or remit the appeal to the First-tier Tribunal to do so.

8. We had before us a bundle running to 230 pages (pdf) ([B/xx]) containing the documents relevant to the appeal before us, and the Appellant’s and Respondent’s bundles before the First-tier Tribunal.

9. Having heard from Mr Swain and Ms Cunha we indicated we would reserve our decision and provide that in writing, which we now turn to do.

DISCUSSION

10. The grounds of appeal that we are concerned with are at B/20, and are not to be confused with the grounds that were before the First-tier Tribunal, which are at B/30. We found the grounds of appeal, that were not settled by Mr Swain, in general to be unfocussed, repetitive, inaccurately pleaded and difficult to follow. The grounds ignore that the judge found that the significant delay in the Appellant’s claim was damaging to his credibility. They ignore discrepancies in the affidavit from the Appellant’s father. There is no reference to the findings of the judge relating to either the Appellant’s father or wife. There is no reference to the finding of the judge that there were no compelling reasons given by the Appellant to explain the significant delay in making a claim for asylum and noting that he had given differing accounts. We deal with the grounds in turn, however we will not trouble to repeat issues which will already have been raised.

11. With respect of Ground 1, MAH endorses the position that there is no legal duty to provide corroborative evidence. At this stage it is worth setting out the framework outlined in the Immigration Rules. Paragraph 339L of the Immigration Rules states that where a claimant’s account is not supported by documentary or other evidence, there will be no need for further confirmation when the following conditions are met:

(i) The claimant has made a genuine effort to substantiate their claim;
(ii) All material factors at their disposal have been submitted;
(iii) Their statements are coherent and plausible and do not run counter to available specific and general information relevant to their case;
(iv) They have lodged an asylum or human rights claim at the earliest opportunity unless they can demonstrate good reason for failing to do so;
(v) Their general credibility has been established.

At [76-77] of MAH the Court of Appeal expressly referred to and adopted para 339L, going through these five factors and finding each in favour of that appellant, before noting that the Upper Tribunal had nonetheless required corroborative evidence, which amounted to an error in law.

12. At [36] of the Decision at B/3, as acknowledged at para 6 of the grounds of appeal, the Judge noted that there was no requirement for an appellant to corroborate his account. At para 7 of the grounds of appeal it is submitted that nonetheless, there were a number of points in the determination where the Judge failed to follow his own direction.

13. With respect of the extract quoted in para 7(i) of the grounds of appeal, this needs to be looked at in the context of [38] of the Decision as a whole. In that paragraph, the Judge made findings as to whether the Appellant was a ‘mid-level’ member or a ‘low-level’ member within the BNP. In doing so, the Judge referred to the Appellant’s own oral evidence of his activities. The Judge noted that the Appellant from his own account did not regard himself as a senior leader. It was in this context, analysing the Appellant’s own evidence, that the Judge commented that ‘there was no substantive evidence before me to suggest he had a significant political profile beyond that described above.’ The extract in para 7(i) of the grounds is taken out of context. Looking at the entirety of [38], the Judge was simply confining her findings to the evidence that was before her. Furthermore and notably, the grounds do not actually challenge the substance of those findings.

14. With respect of the extract quoted in para 7(ii) of the grounds of appeal, it is unclear how this extract indicates that the Judge was unlawfully requiring corroborative evidence. The Judge at [42(i)] of the Decision was analysing the evidence of the newspaper report provided by the Appellant. MAH does not require a tribunal to accept corroborative evidence without any further examination. Further, MAH is not authority to say that a judge is not entitled to take into account defects in corroborative evidence provided. The Judge was perfectly entitled to note deficiencies in the newspaper report provided.

15. With respect of the extract quoted in para 7(iii) of the grounds of appeal, this concerns the Judge’s findings regarding the arrest warrant provided by the Appellant, which can be seen at B/205. Firstly, the Judge was entitled to note the deficiencies in the arrest warrant, for example the lack of details of the co-accused or details of the original complainant.

16. Secondly, the Judge noted that the arrest warrant was provided without any supporting documentation, namely the first information report (‘FIR’) and complaint report. This is in the context of the Appellant himself stating at para 10 of his witness statement at B/56 that he was listed as the number 2 accused in the complaint and the FIR. Thus the FIR and complaint report were, to quote the terms of para 339L of the Immigration Rules, material factors at the Appellant’s disposal, and no satisfactory explanation regarding the lack of this relevant material had been given.

17. Thirdly the Judge also rejected the arrest warrant on the basis that the Appellant had provided internally inconsistent evidence regarding the arrest warrant. Mr Swain submitted that the Judge had failed to consider that the Appellant had made an honest mistake regarding the date of arrest warrant. Mr Swain submitted that the Judge ought to have considered that this was an understandable mistake, particularly given it was one the Respondent had also made. In our view this is a rationality challenge, which is not pleaded within Ground 1, but in any event, the Judge properly deals with this at [33] of the Decision. The arrest warrant was part of the Appellant’s case. The Appellant’s case was that a malicious prosecution was filed against him and an arrest warrant was issued once he had left Bangladesh. He had mistakenly stated that the arrest warrant was issued in December 2007. This was material, as in December 2007, the Appellant would have still been in Bangladesh. It was entirely open to the Judge in these circumstances to find that this inconsistency damaged the Appellant’s credibility generally.

18. With respect of the extract quoted in para 7(iv) of the grounds of appeal, again this is taken out of context and it is necessary to look at the entirety of [43(ii)] of the Decision. In our view the Judge was entitled to analyse the letter of Mohi Uddin Alamggir and note its shortcomings. This letter came without any external evidence from a professional body to affirm Mr Alamggir’s credentials. The letter had no explanation as to why the charge sheet, referred to in the letter was not disclosed. The letter had no explanation as to why the case had not been dealt with in absentia in the intervening 16 years. In our view the Judge was not requiring corroborative evidence, but reasonably noting the gaps in the evidence before him.

19. With respect of the extract quoted in para 7(v) of the grounds of appeal, again one must look at the entirety of para [43(iv)] of the Decision. The Judge noted that there was no evidence that Mr Rahim was President of the same branch as the Appellant in the context of the fact that he did not appear on the membership lists that were provided by the Appellant. The Judge was perfectly entitled to note this discrepancy in the evidence provided by the Appellant himself. When this was put to Mr Swain, he referred us to the list of members at B/198 and stated there was an Md Abdur Rahman listed. It seems that this is the first time such a submission has been made; having not been raised in the grounds and nothing to indicate it was made before the Judge at the First-tier hearing. In any event, the name is simply not the same. Further, the position of Mr Rahman is listed as Vice President, while Mr Rahim claims to be the acting President of the branch. The fact that the Judge did not speculate that the two individuals with different surnames were the same person, when such a submission was never made, is not an error of law.

20. With respect of the extract quoted in para 7(vi) of the grounds of appeal, the Judge’s comment regarding the Appellant failing to provide any evidence of political activity between 2007 and 2019 is at [42(v)] of the Decision. This comment was made in the context of the Judge considering Mr Hussain’s letter where he suggests that he has known the Appellant since 2015 and that he is a member of the JSSD. Further Mr Hussain, whose letter can be found at B/211, states that he has known the Appellant to have maintained his political activities since his arrival in the United Kingdom. The Judge reasonably considered there was a discrepancy between this letter and what was said in the Appellant’s screening interview, that he had stopped being a member of the BNP when he arrived in the United Kingdom. The Judge was entitled to note when considering the general credibility of Mr Hussain’s letter and the claims made therein, that the Appellant had not claimed to be politically active between 2007 and 2019 and there was no other evidence of such.

21. With respect of para 7(vii) and (viii) of the grounds of appeal, it complains that the Judge should not have taken into account the lack of social media evidence. At [44-46] the Judge considered the evidence of sur place activities, and the risk that the Appellant has come to the attention of the authorities. The Appellant provided photographs of himself at demonstrations, and the Judge reasonably noted that there was no evidence that these were published anywhere, including any social media evidence. The consideration of the Appellant’s political profile in the context of his sur place claim would, it seems to us, obviously lead to the Judge considering the extent of the Appellant’s political profile online. The same can be said for the Judge’s comment that there was no evidence of surveillance or intelligence gathering at demonstrations, which is a key evidential point when considering the Appellant’s risk upon return. We reject the submission by Mr Swain that the lack of social media evidence was an irrelevant consideration when assessing whether an appellant has come to the attention of the authorities. We find the proposition perverse.

22. Finally dealing with para 7(ix) of the grounds of appeal, the Judge was perfectly entitled to find that there was no evidence of any sur place activity until after the asylum claim was made. Reliance on WAS (Pakistan) v Secretary of State for the Home Department [2023] EWCA Civ 894 is misplaced. In that case there was evidence that was accepted of the Appellant’s political activities in Pakistan and it was also accepted that the appellant in that case had made social media posts critical of the government, that the platform was monitored by the Pakistani authorities and that the authorities conducted surveillance of demonstrations. Here there were no such concessions and the Judge was entitled to consider that there was a paucity of evidence such that the burden of proof had not been met by the Appellant.

23. Para 7 of the grounds of appeal cherry-picks isolated phrases from the Decision, failing to consider the Decision as a whole or the numerous credibility findings made by the Judge, which themselves were not substantively challenged. We are satisfied that there is no error in law made out in Ground 1.

24. In respect of MAH, the grounds ignore that the Judge rationally found that there were significant shortfalls and problems with the evidence relied on by the Appellant which was not supported by evidence which the Appellant could reasonably have been expected to have produced. Mr Swain’s submission that the Judge was requiring corroboration to support corroborative evidence is misplaced and misrepresents the decision of the judge. The grounds suggest that MAH establishes that, notwithstanding significant internal problems found in the unsupported evidence relied on by the Appellant, a judge is precluded from finding it unreliable for want of corroboration. This is a misinterpretation of what the Court of Appeal said and of para 339L of the Immigration Rules.

25. Turning now to Ground 2, it was submitted that the Judge failed to consider the objective evidence which indicated that the government had increased its practise in making allegations of false criminal cases against its political opponents. At [24-28] of the Decision, the Judge summarises the objective evidence, and at [24] the Judge expressly notes the CPIN: Bangladesh, Actors of Protection November 2023 and the CPIN: Bangladesh Political Parties and Affiliation September 2020. The Judge expressly refers to passages indicating that falsely constructed cases being used to target opposition leaders, workers and supporters. The Judge also notes that the CPIN indicates that opposition activists who raise their profile may be subject to treatment, including harassment, arrest and politically motivated criminal charges by the police and non-state actors. The Judge went on at [25] to refer to the Human Rights Watch report, exactly the same report paras 16 and 17 of the grounds claim the Judge had made no reference about and therefore could not have considered. Para [25] also makes reference to the newspaper reports submitted on behalf of the Appellant.

26. It is simply incorrect to indicate that the Judge had no regard to the objective evidence submitted on behalf of the Appellant. The Judge summarised the objective evidence relied on by the Appellant, and then went on at [27] to consider the passages relied on by the Respondent in the CPIN: Bangladesh Documentation March 2020, which indicated document fraud is widespread and fraudulent police document are obtainable. At [28] the Judge made a reasonable summary of the objective evidence relied on by both parties, repeating the fact that fabricated charges have increased in recent years. In his final conclusions at [52] the Judge further accepted that the objective evidence lent support to the fact that opposition parties have increasingly brought false reports and charges against opposition members and stated that he had taken this into account in the Appellant’s favour. The judge accepted that low level activists could be subject to persecution. This accurately reflects the background evidence. The suggestion that the judge did not have regard to the evidence is illogical because the judge accepted the thrust of the background evidence relied on by the Appellant.

27. It was submitted by Mr Swain under this head that the Judge’s analysis of credibility fell foul of KB and AH (credibility structured approach) Pakistan [2017] UKUT 00491 (IAC), however in our view the Judge adopted the framework endorsed by KB and AH in that:

(i) The Judge considered sufficiency of detail, and found that this was lacking in the arrest warrant, the letters by Mr Alamggir and Mr Rahim and in the evidence generally.
(ii) The Judge considered consistency, noting the internal inconsistencies in the Appellant’s evidence and inconsistency with the arrest warrant.
(iii) The Judge considered plausibility, and found that it is not plausible that the case would not have been dealt with in the intervening 16 years.

The Judge made findings on all these features of the evidence, took into account the objective evidence relied on by both parties and was entitled to reach the conclusions that he did. There is no error of law made out in Ground 2.

28. With respect of Ground 3, it was submitted by Mr Swain that the Judge considered at [30] that the Appellant’s claim regarding being tortured was generally consistent, and this finding was at odds with [52] that the Appellant’s account contained fundamental inconsistencies and discrepancies. Mr Swain submitted that the Judge should have taken into account the fact that one of the core aspects of the Appellant’s claim was consistent.

29. When we look at the credibility findings as a whole, at [30] the Judge was doing exactly that. The Judge took into account the fact that one part of the Appellant’s account was consistent. The Judge then went on at [31] to consider the parts of the Appellant’s account that were not consistent. These credibility findings have not been challenged. Thus, while the Judge noted the consistent account in the Appellant’s favour at [30], the Judge went on balance this finding with the discrepancies in the Appellant’s account. It was for the Judge to decide what weight to give the consistencies and discrepancies in the Appellant’s account, and the Judge’s conclusions at [52] were properly open to him.

30. Ground 3 rehearses Mr Swain’s submissions to us regarding the arrest warrant. At [32-33] the Judge looked at the Appellant’s account with respect of the arrest warrant, and we have already made our findings with respect of that at [15] above. Again, Ground 3, appears to be an irrationality challenge, although it is not pleaded as such. We find no error of law disclosed in Ground 3.

31. Ground 4 is the only ground expressly arguing irrationality, although irrationality is threaded throughout all the grounds. Ground 4 is somewhat repetitive and we have made findings already with respect of the Judge’s treatment of Mr Alamggir’s letter, Mr Rahim’s letter and Mr Hussain’s letter. With respect of the medical note, the Judge deals with this at [42(vi)] of the Decision and there is nothing irrational in his findings regarding this evidence. The fact he found the Appellant’s account of being attacked to be consistent at [30], does not preclude him from finding that the medical note was not a reliable document when considering the evidence as a whole.

With respect of para 37 of the grounds, it is trite law that the Judge need not find a document is false to find that it is unreliable; Tanveer Ahmed v Scretary of State for the Home Department [2002] UKIAT 00439. We are satisfied Ground 4 discloses no error of law. Moreover, when considering reliability, it was open to the judge to attach some weight to the unchallenged background evidence supporting the prevalence of fraudulent documents amongst other factors. This does not amount to a finding that the documents are fraudulent.

32. Ground 5 is a complaint that the Judge did not consider the inconsistencies of the Appellant in the context of R v Lucas [1981] QB 720, pointing to two specific inconsistencies, firstly the Appellant’s initial account that there were multiple false cases against him and then subsequent suggestion that there was one false case, and secondly his delay in claiming asylum. With respect of the first, the Judge considered this inconsistency in the context of considering the Appellant’s claim as a whole. As we have already observed, the Judge noted the consistent aspects of the Appellant’s claim at [30] and then the inconsistencies at [31]. The Judge went on to analyse the documentary evidence and then at [52] considered the evidence as a whole when concluding that the discrepancies in the Appellant’s account were fundamental to his claim. This was a perfectly proper approach for the Judge to take and it was a matter for him as to what weight to give the inconsistencies in the Appellant’s case.

33. With respect to the second, the Judge considered at length the delay in claiming asylum within the statutory framework of section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 at [47-51] of the Decision. The Judge properly considered the Appellant’s reasons for the delay, and it was open to the Judge to reject that evidence and nonetheless find that delay damaged the Appellant’s credibility. There is no challenge to this in the grounds. We are satisfied Ground 5 discloses no error of law.

CONCLUSION

34. The grounds are a disagreement with the findings and an attempt to re-argue the case. They do not identify an error in the Decision.

35. For the reasons set out above, the Decision does not contain an error of law. We dismiss this appeal and uphold the Judge’s decision dismissing MU’s appeal.

NOTICE OF DECISION

The Appellant’s appeal is dismissed. The decision of First-tier Tribunal Judge Bowen dismissing MU’s appeal stands.

S Y Loke
Deputy Upper Tribunal Judge Loke
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

26 February 2025