Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005450

First-tier Tribunal Nos: PA/52506/2024
LP/06857/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
13 March 2025

Before

UPPER TRIBUNAL JUDGE KEITH
UPPER TRIBUNAL JUDGE HIRST

Between

‘HA’ (BANGLADESH)
(ANONYMITY ORDER CONTINUED)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms G Balać, Counsel, instructed by Black Antelope Law
For the Respondent: Mr M Parvar, Senior Home Office Presenting Officer

Heard at Field House on 27th 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 him. Failure to comply with this order could amount to a contempt of court. The reason is that the Appellant’s appeal relates to a claimed fear of persecution.

DECISION AND REASONS
1. These written reasons reflect the full oral reasons which we gave to the parties at the end of the hearing.
2. The Appellant appeals against the decision of a Judge of the First-tier Tribunal, (‘the Tribunal’) which, in a decision dated 29th September 2024, dismissed the Appellant’s asylum, humanitarian protection and human rights appeals. At the core of this appeal is the question of whether the Tribunal erred in concluding that there was insufficient evidence that the Appellant in fact feared persecution in Bangladesh and that he would not be at risk of harm on return, as a low level supporter of the Bangladesh National Party or ‘BNP’. This is in the context of the end of the Awami League’s period in government in Bangladesh and the release of the BNP leader on 9th August 2024.
The Tribunal’s decision under challenge
3. We refer briefly to the Tribunal’s decision. We do not recite it all, but have considered it in full.
4. The Tribunal had dealt with a preliminary issue, namely the Appellant’s application to postpone the hearing, pending updated country evidence from the Respondent about the consequences of the regime change in Bangladesh. The Tribunal refused that postponement application and we say no more about it on the basis that there is no challenge to that refusal.
5. The Tribunal recorded, (and it is not disputed), that the Appellant was, and is, a supporter of the BNP and its student wing, Jatiotabadi Chatra Dal, or ‘JCD’. However, the Respondent said that he was not at risk in Bangladesh, because he was a low level supporter. The Respondent also disputed that the Appellant had been the subject of adverse interest in Bangladesh, either because of his BNP membership, or in the alternative, from his father.
6. It is important to be clear about what the Appellant has not challenged in the Tribunal’s decision. The Tribunal found that the Appellant was not credible in a number of aspects of his claim. The Appellant has not challenged those findings. These included that there were inconsistencies in the evidence including a ‘First Information Report’ which the Appellant was unable to explain at §§22 to 23; a charge sheet and arrest warrant (§24); photographs of the Appellant’s home which he claimed had been attacked (§25); and ‘wanted posters’ and documents sent by WhatsApp (§§26 and 27). The Tribunal did not accept as consistent his claim to have been hiding in Bangladesh (§28) or to have been chased and attacked there (§29). The Tribunal rejected what it described as the core of the Appellant’s claim of adverse interest in Bangladesh or any subsequent adverse interest, or the reliability of his documentary evidence (§31). The Tribunal further rejected that the Appellant was politically active in the UK (§31).
7. Instead, the Appellant’s challenge is to the Tribunal’s reasons at §§34 to 35 and its conclusion at §36 that:
“The Appellant has failed to establish that he was of any adverse interest to the Awami League whilst they were in power. Furthermore, since the AL are no longer in power, I find that the Appellant as a low level supporter of the BNP and member of the JCD would not be at risk of harm upon his return to Bangladesh. I therefore conclude the Appellant has failed to demonstrate that he does in fact fear persecution in Bangladesh”.
8. The Tribunal went on to reject the Appellant’s claim of adverse interest from his father which the Tribunal regarded as an embellishment of his claim; any claim under humanitarian protection; and also on the basis of very significant obstacles to the Appellant’s integration in Bangladesh, or on the basis of his right to respect for his private life under Article 8 ECHR more generally.
The grounds of appeal
9. The grounds of appeal are a little opaque and it was necessary for us to identify and agree with Ms Balać exactly what error the Appellant says the Tribunal had committed.

10. In clarifying the Appellant’s challenge to the decision, we checked and ascertained that there were three bundles: the so-called ‘stitched bundle’, a supplementary bundle loaded onto the First-tier Tribunal case management system on 20th August 2024, and a further supplementary bundle running to 105 pages that had been uploaded on the day of the Tribunal hearing. The Appellant focussed on the third bundle in her appeal to us.
11. We discussed with Ms Balać the ‘additional materials’ referred to at §§6 and 8 of the grounds of appeal. At §6, the grounds had suggested that the Tribunal had considered and permitted submissions on additional materials but the Tribunal had overlooked the significance of the material. At §8, it referred to the Appellant’s Counsel seeking permission to have a supplementary skeleton argument and bundle of documents submitted to the Tribunal and the Respondent had failed to ‘request or provide for the inclusion of documents demonstrating that the Appellant was not at risk’.
12. We clarified that there was no suggestion that the Tribunal had in fact resisted the inclusion of the third bundle or had failed to consider it, and indeed at §13 of the Tribunal’s decision we note that the Tribunal expressly referred to it. Instead, Ms Balać confirmed that the Appellant argued that the Tribunal’s conclusion at §36, supported by the reasons at §§34 to 35, was perverse, on the basis that it was not open to the Tribunal to conclude that the Appellant would not be at risk of harm upon his return to Bangladesh. The evidence in the third bundle indicated that there was significant volatility within Bangladesh and there was no suggestion that the risks that had previously been identified in the ‘Country Policy and Information Note: Bangladesh: Political parties and affiliation’ or ‘CPIN’ dated September 2020 had materially changed. On that basis and in the absence of any contrary evidence or updated CPIN, the only finding open to the Tribunal was that there was a relevant risk to the Appellant.
The Appellant’s submissions
13. Ms Balać reiterated that the Tribunal’s starting point should have been the CPIN, which the Tribunal had before it, in the absence of further documentation or evidence from the Respondent. The CPIN had referred to evidence of governance based on political patronage, and law enforcement agencies being politicised at §2.4.4; the fact that law enforcement agencies were aligned to the ruling party, at §2.5.3; at §2.9.1, the use of law enforcement agencies as political instruments to silence the opposition; at §9.2.7, that the police were increasingly direct Awami League members particularly associated with its student league, and known or suspected affiliation with the BNP was likely to halt recruitment at that point. Finally, at §10.2.7, the CPIN recorded that political affiliation often appeared to be a factor in claims of arrest and prosecution of opposition members. Added to this was that the Respondent had accepted that the Appellant was a low level BNP supporter.
14. We also canvassed with Ms Balać whether, because the provisions of Section 32 of the Nationality and Borders Act 2022 applied to this appeal, and the well-known authority of JCK (s.32 NABA 2022) (Botswana) [2024] UKUT 00100 (IAC), the first question was to consider the Appellant’s subjective fear, separate from issues of credibility and risk, and only then to consider by reference to the lower standard the question of risk. We asked, if that were the case, whether the Appellant had challenged the Tribunal’s explicit finding that the Appellant did not in fact fear persecution. Ms Balać said that the Tribunal’s conclusions on subjective fear had been undermined by its assessment of risk at §§34 and 35, namely that because there had been a change in the Bangladesh government that meant that there was no ongoing risk to the Appellant.
15. We also asked Ms Balać to comment on §2.4.7 of the CPIN, which stated that:
“In general, low-level members of opposition groups are unlikely to be of ongoing interest to the authorities and are unlikely to be subject to treatment that is sufficiently serious, by its nature or repetition, to amount to persecution”.
16. Ms Balać did not demur from that proposition, but said that the evidence in the third bundle about general volatility was an additional factor in terms of risk. We asked her whether the Appellant had argued before the Tribunal that the risk to him had increased because of the change in the Bangladesh government, compared to the risk he had faced when he was in Bangladesh. Ms Balać was unable to assist because she had not appeared before the Tribunal, although we pause to observe that the additional skeleton argument in the third bundle does refer to additional changed risks (§11, page [5]), albeit in general terms.
The Respondent’s submissions
17. Mr Parvar first reiterated the absence of a challenge to the Tribunal’s finding on subjective fear. That should be an end to the Appellant’s appeal. Second, the Tribunal’s decision was far from perverse. The Tribunal had carried out a detailed analysis of the Appellant’s claims of adverse interest in Bangladesh and of ‘sur place’ activity in the UK and had rejected them in entirety. True it was that that the Appellant was a low level supporter of the BNP, but just as he had not suffered any adverse interest in Bangladesh, there was no substantive evidence that that the risk to him had increased because of a change in the Bangladesh government, and realistically that could form the only basis of a successful protection claim. The Tribunal unarguably considered the evidence in the supplementary bundles and the fact that there may be some volatility in Bangladesh did not begin to disclose a specific increased risk to the Appellant. We also pause to observe that the Appellant did not seek to claim that there was now indiscriminate violence at a level described in Elgafaji v Staatssecretaris van Justitie (C-465/07), such as undermined the Tribunal’s rejection of the claim of humanitarian protection.
Conclusions
18. We bear in mind as a preliminary point that the grounds themselves do not appear, on their face, to challenge the Tribunal’s finding that the Appellant did not in fact fear persecution. Ms Ms Balać made repeated references to risk (a separate issue). Further to the authority of JCK, that ordinarily would be an end to any challenge to the Tribunal’s rejection of the asylum claim given that s32 NABA 2022 applied to the appeal. However, we have not limited submissions before us on that basis. Notwithstanding the fact that it does not appear to be in the grounds, we have considered Ms Balać’s submissions on the Tribunal’s analysis of risk which informed the conclusion on subjective fear, at §§34 and 35 of the judgment, namely that its analysis of risk was perverse.
19. However, as Mr Parvar rightly points out, we cannot consider the Tribunal’s analysis of risk, based on a change in government in Bangladesh, at §§34 and 35, in isolation. It followed the Tribunal’s detailed rejection of the claims of adverse interest in Bangladesh and political activity in the UK (§§23 to 31), to which there is no challenge. The Tribunal had found that even before events resulting in the change in the Bangladesh government, the Appellant had not suffered any adverse interest in Bangladesh, when it was acknowledged that he was a low-level BNP supporter. It was these findings which informed the Tribunal’s conclusion at §36 that the Appellant,
“... has failed to establish that he was of any adverse interest to the Awami League whilst they were in power. Furthermore, since they are no longer in power, I find that the Appellant as a low level supporter of the BNP and member of the JCD would not be at risk of harm upon his return to Bangladesh. I therefore conclude the Appellant has failed to demonstrate that he does in fact fear persecution”.
20. Whilst it may, on one hand, be argued that that confuses risk with subjective fear, on the other hand, to be clear, the Appellant’s perversity challenge is in relation to the Tribunal’s assessment of risk. That risk assessment starts with the Tribunal’s finding that there had been no adverse interest. We accept Mr Parvar’s submission that it was open to the Tribunal to conclude that the acknowledged volatility in Bangladesh did not change the risk to the Appellant, as a low level BNP supporter, such as was reflected in §2.4.7 of the CPIN. Whilst the reasons at §§34 to 35 are brief, there is no challenge on the basis of the adequacy of them. The Tribunal had expressly considered the evidence in the third bundle. While Ms Balać confusingly referred to the Respondent failing to provide evidence of ‘conclusive risk’, in the Appellant’s favour, we also bear in mind that the reasonable degree of likelihood is far lower a standard, as MAH (Egypt) v SSHD [2023] EWCA Civ 216 makes clear. Setting aside the issue of the burden of proof lying on the Appellant, the Tribunal did not apply too high a standard. It considered the lack of adverse interest in Bangladesh when the Appellant was a low-level supporter there and concluded that the change in government made no difference to the absence of risk. That was a finding open to the Tribunal and was not perverse.
21. We have heard no other submissions on humanitarian protection, or Articles 3 or 8 ECHR.
22. The Appellant’s grounds before us disclose no error of law.
Notice of decision
23. The Tribunal did not err in law in its decision dated 29th September 2024. That decision stands.

24. The Appellant’s appeal is dismissed.

Judge J Keith

Judge of the Upper Tribunal
Immigration and Asylum Chamber

7th March 2025