Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005551

First-tier Tribunal No: PA/60923/2023
LP/01600/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

17th March 20205

Before

DEPUTY UPPER TRIBUNAL JUDGE SKINNER

Between

SA
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R. Layne, counsel, instructed by Londonium Solicitors
For the Respondent: Ms A. Ahmed, Senior Home Office Presenting Officer

Heard at Field House on 6 February 2025

Order Regarding Anonymity

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

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

DECISION AND REASONS
1. This is an appeal from the decision of First-tier Tribunal Judge Khan (“the Judge”) dated 20 September 2024 dismissing the appellant’s appeal against the respondent’s decision dated 6 November 2023 refusing the appellant’s protection and human rights claim. In summary, the appellant’s claim was that he was at risk on return to Bangladesh from the Awami league who were, until mid-2024, the ruling party, by virtue of his claimed membership of and activism for the Bangladeshi National Party (BNP). There is no dispute that, at the relevant time, someone who was an activist for the BNP could, in principle, be at real risk of persecution from the Awami league government. The issue in this case was the credibility of the appellant’s claimed activism and the extent to which his sur place activities in the UK could put him at risk.
2. I note that the political situation in Bangladesh has significantly changed since the appellant made his protection claim and, according to the respondent’s CPIN of December 2024, would appear to be much improved for at least the vast majority of people in the appellant’s claimed position. However the evidential picture of the precise risks still faced by members of the BNP has not yet been worked out in any Country Guidance and it was not suggested by the respondent that, even if the Judge had erred in rejecting the appellant’s claim, any such error would be immaterial because the changed political landscape meant that his protection claim, if reassessed in light of the current situation, would be bound to fail. It was also common ground (and is in any event well established) that the question of whether the Judge erred in law depends on the position as set out in the evidence she had before her at the time.
3. The Judge anonymised the appellant’s identity in these proceedings “because this is a protection claim”. However, it is well established that the mere fact of someone having made a protection claim is not, of itself, sufficient to justify the interference with open justice that an anonymity order entails: Kambadzi v SSHD [2011] UKSC 23 at [6]. Nonetheless, given the incomplete evidential picture before me as to the risks faced by someone in the appellant’s claimed position in Bangladesh, and in particular as to the effect on return that having claimed to be at risk from the Awami league might have if known about, I consider it appropriate to maintain that order on a precautionary basis.
The FTT decision
4. The sole issue before the Judge was the appellant’s credibility. Her assessment of this began at para.30 of the decision. At paras.30-31, the Judge summarised the oral evidence given by the appellant and by KC, a claimed political colleague of the appellant. The Judge noted at para.32 that a witness statement had been adduced on behalf of a further witness, but as he did not attend for cross-examination she gave this limited weight.
5. At para.33, the Judge began her consideration of the documentary evidence adduced. At para.33, she considered a letter/affidavit from MAU dated 30 April 2024, noting that it stated that several cases were lodged against the appellant in 2009, whereas the appellant had never claimed this, rather that there were two cases, one in 2009 and one in 2015. Given this inaccuracy and the limited information given about the author of the letter, the Judge gave it limited weight. At paras. 34-37, the Judge considered various documents – First Information Reports, various court orders and charge sheets and a letter from the appellant’s Bangladeshi lawyer.
6. At paras.38-40, the Judge considered and rejected the submission that the respondent was under a duty to authenticate the documents adduced by the appellant. There is no challenge to this aspect of the decision.
7. At para.41, the Judge reminded herself of the Tanveer Ahmed principles. At paras.42-43, she noted affidavits adduced on behalf of the appellant’s brother and a friend. In relation to the latter, the Judge noted that, contrary to what the affidavit suggested, the appellant had never claimed to have been subjected to violence at various times. As the letter contained limited details and inaccurate information, the Judge gave this document little weight.
8. At para.44, the Judge noted a letter from ‘AUA’, the Chairman of No 6 Kanaighat 9, and at para.45 the Judge consider a letter from BNP Kanaighat Upazile Branch. As the letter made no mention of false claims having been lodged against the appellant and did not state how long the author had known the appellant and in what capacity, the Judge gave this letter little weight.
9. At paras.46-47, the Judge considered a report produced by a barrister in Bangladesh about the situation there, noting that she had doubts about his expertise, considered that he had strayed into matters that were properly for the Tribunal to determine and was concerned to note that he sought to authenticate documents without having seen the originals. Nonetheless, the Judge took the report into account.
10. At para.48, the Judge recounted the appellant’s claimed history with the BNP and noted, at para.49 the respondent’s contention that he had been vague and lacked specificity in his account. The Judge rejected the appellant’s explanation, namely physical ill health, for his vagueness at interview. While she accepted that he may have been nervous, this did not fully explain his answers.
11. At para.50, the Judge found that the appellant continued to provide vague evidence about his role in the BNP at the hearing, noting the limited details about what he did to organise events, the Party Programme and what he did to advance it.
12. At para.51, the Judge noted that whereas the arrest warrant stated that the appellant’s trial date was 28 May 2010, the date of issue from the court was 16 June 2015 and the alleged charge is noted as 26 February 2018. It was unclear, the Judge held, how the court date could be scheduled prior to the charge sheet being issue and the appellant had not been able to explain why these dates were written in this way. The Judge did not accept, given the number of dates that were inaccurate in the order, that it was just a typo.
13. At para.52, the Judge concluded that the appellant had not credibly explained how he obtained the documents he relied on. He had said that his brother, SI, was meant to help him obtain documentation from Bangladesh, but his relationship had deteriorated and so he was not able to supply any documents until now. He claimed another brother, JI, helped him to do so. However at the hearing he stated that it was SI that helped him get the documents. Notwithstanding this, SI’s affidavit makes no mention of having done so.
14. At para.53, the Judge considered the evidence in the round and concluded that the appellant was not a credible witness. She did not accept that he was active in politics in Bangladesh prior to his arrival in the UK and did not accept that there were false charges lodged against him. Despite the appellant’s claim to have had an arrest warrant issued for him in 2009, there was no charge sheet until 2015 and the Judge did not accept that false charges would be lodged against the appellant who had been out of the country for 6 years at that time. There was no credible reason why he would be targeted over such a long period, particularly as the expert described him as a low-level politician or activist. The appellant’s documents contained inconsistencies over the dates and the Judge was accordingly not satisfied of their provenance. She did not accept that they were reliable documents. Accordingly, the Judge did not accept that the appellant was at risk because of his activities in Bangladesh.
15. At para.54, the Judge turned to the appellant’s claim based on his sur place activities, noting that the appellant had produced a YouTube video of a protest in front of the UK Parliament, a limited number of translations of his social media posts, but not his full Facebook account, and various newspaper articles that featured his sur place activities. He had produced two letters from BNP London Mohanagar but which contained contradictory information. The Judge therefore did not consider them to be reliable. The Judge considered a letter from Equal rights International, but noted that the appellant had not mentioned this organisation in his evidence. The appellant had also produced various photographs of the demonstrations or meetings he attended in the UK, the earliest from 2019. The appellant could not recall how many demonstrations he had been to.
16. At para.61, the Judge noted that it was accepted by the respondent that the appellant had been involved in politics in the UK. The Judge noted that the appellant had arrived in the UK in 2010 and the first evidence of his demonstrating appeared to be from 2019 and there was limited evidence of his political involvement before this date. While the appellant had been active in attending demonstrations, the Judge did not accept that he was an organiser or an activist as such. He had, the Judge considered, just attended these demonstrations to advance his asylum claim. While his name was mentioned in the news reports produced, there were several names mentioned in these reports and it was not accepted that his activities marked him out with an enhanced profile. There was no evidence to suggest the authorities were aware of his activities. The Judge considered that, “At best he is a low level activist. I have reservations on whether his political activities are genuine.” However, applying the CPIN, the Judge did not consider the appellant would be at real risk of persecution in Bangladesh because of his activities in the UK.
17. The appellant was accordingly dismissed.
Appeal to the Upper Tribunal
Grounds of appeal
18. The appellant sought permission to appeal on two grounds:
a. First, it is said that the Judge erred in [61] in finding that the appellant’s sur place activities were orchestrated to advance his asylum claim when his activities had already been accepted by the respondent. There was said to be a failure to provide any or any cogent reasons for this conclusion and also disregarded ‘the fact’ that the appellant had been involved with BNP politics in Bangladesh and since 2016 in the UK, which activity was vouched for by senior UK BNP leadership and his activities had formed the subject of reports in Bangladeshi national news outlets.
b. The second ground submits that the Judge misapplied the CPIN, effectively putting the appellant in the wrong category of low-level member instead of opposition party activist.
Permission to appeal
19. Permission to appeal was granted on all grounds by First-tier Tribunal Judge Mulready on 3 December 2024. They said:
“There is no reference in the Decision to the Respondent considering the Appellant’s political activities in the UK as anything other than in good faith, and so this does not appear to have been in dispute. However the judge finds in terms that the Appellant has “just attended these demonstrations to advance his asylum claim.” In addition there is a considerable quantity of evidence put forward by the Appellant in support of his claim to be a party activist rather than a low-level member, and the Respondent accepted he was a “low-level activist.” In that context it is arguable the judge does not give adequate reasons for the finding the Appellant falls into the lower risk category identified in the CPIN.”
20. In response to the appeal, the respondent filed a rule 24 response dated 13 January 2025. It essentially sought to defend the Judge’s decision on the basis of the reasons she gave.
Analysis
21. I am unable to accept that the Judge committed the error alleged in the first ground of appeal. First of all, it is not correct that the genuineness of the appellant’s sur place activities had been accepted by the respondent. The sur place activities were not addressed in the respondent’s decision letter (it is not clear to me why), but in the respondent’s review of 29 June 2024 setting out her position on the appeal, she submits, having accepted at para.15 that the appellant had been politically active in the UK, in the sense of having attended demonstrations, that the appellant’s credibility required testing by cross examination at the appeal hearing. In my judgment, this was plainly sufficient to put in issue the genuineness of the appellant’s motive for undertaking his accepted sur place activities. I therefore reject the appellant’s suggestion that this was not an issue that the Judge was entitled to determine.
22. In any event, however, the appellant did not advance a case that he would be at risk on return to Bangladesh because he would persist in undertaking political activities on return. No reference is made to HJ (Iran) or related cases in his Appeal Skeleton Argument, setting out his case for the appeal. Rather, his case was simply that he would be at risk because of his past activities. In those circumstances his motivation for undertaking his political activities in the UK is irrelevant. It is well established that a person whose sur place activities put them at risk on return is (all other things being equal) a refugee regardless of whether those activities have been undertaken purely to improve their claim for asylum or because of genuine support for the cause. Likewise, someone whose profile does not put them at such risk is not a refugee just because their motive for undertaking sur place activities is a genuine belief in their purported political cause. In those circumstances, even if the Judge had been wrong to assess the appellant’s motive for undertaking his sur place activities, the error would have been immaterial.
23. I do not accept that the Judge failed to provide any or cogent reasons for rejecting the genuineness of the appellant’s motivation for his sur place activities. It is clear from reading the judgment as a whole that the Judge considered the appellant to be a poor witness whose account was in very large part not credible, who had produced documents which were unreliable and who had waited 9 years in the UK before starting any sort of political activities. Those factors amply justify the Judge’s inference that the appellant was motivated to undertake his sur place activities simply to bolster his asylum claim and the Judge’s reasons are clear and intelligible.
24. It is not correct that the Judge disregarded the fact that the appellant had been involved in BNP politics in Bangladesh and since 2016 in the UK. The Judge rejected that the appellant had been involved in BNP politics in Bangladesh and prior to 2019 in the UK and took into account the appellant’s attendance at demonstrations thereafter. She also did not disregard that the appellant’s sur place activity was vouched for by senior UK BNP leadership and his activities had formed the subject of reports in Bangladeshi national news outlets. The letters from senior UK BNP leadership were contradictory and so little weight was placed on them; they were not disregarded in the sense of not having been taken into account. The news reports were fully considered.
25. Ground 1 therefore falls to be rejected.
26. In relation to the second ground, the starting point is that a CPIN is not a Country Guidance decision but is the respondent’s summary of background evidence of the situation in a particular country and is therefore simply evidence for the Tribunal to evaluate along with all other background evidence in determining the factual question whether, having regard to the situation in the particular country, an appellant would be at real risk of persecution on return.
27. The paragraph of the CPIN to which the Judge was referred in the Respondent’s Review was para.2.4.7. It was cited in support of the submission that the appellant’s activities were insufficient to raise his profile so as to bring him to the attention of the Bangladeshi authorities. That paragraph stated (the CPIN has now been withdrawn in light of the change of government in Bangladesh):
“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. Opposition party activists, particularly those whose position and activities challenge and threaten the government and raises their profile, may be subject to treatment, including harassment, arrest and politically motivated criminal charges by the police or non-state actors, which amounts to persecution.”
28. The appellant’s submission is that effectively the Judge has put the appellant in the low-level members of opposition groups ‘box’, when he had rationally to be put in the opposition party activists group ‘box’. The appellant appeared to consider that this was a bright line distinction with those falling into the former not being at sufficient risk to be entitled to international protection and those falling into the latter being so entitled. That however seems to me to be a misreading of the CPIN and the submission more generally demonstrates a failure to appreciate that the CPIN is simply a summary of evidence which the Judge takes into account in the round with all the other evidence.
29. What para.2.4.7 indicates is not that there are two hermetically sealed categories of asylum seeker, but rather a spectrum of risk. In the lowest category are “low-level members” of opposition groups who are unlikely to be of ongoing interest to the authorities or to be subject to persecution. That does not mean that they will not be, but that this is unlikely. At the other end of the spectrum are “opposition party activists…whose position and activities challenge and threaten the government and raises their profile”. They “may be” subject to treatment amounting to persecution. It is not the case that they necessarily will be (though if someone falls into this category, they are likely to overcome the lower burden of proof applicable in international protection claims). In the middle are opposition party activists, but whose activities do not challenge and threaten the government and raise their profile. This is implicit in the use of “in particular” to describe the highest risk group. They too “may be” subject to persecution, but that risk is clearly thought to be lower than in respect of those whose activities challenge and threaten the government and raise their profile. It also seems to me to be implicit in this paragraph of the CPIN that activists are also members. So in reality what the CPIN is saying is that there are members of opposition groups who, without more, are unlikely to be persecuted, there are those who also undertake political activities (hence they are activists) and then there are those whose activities are such that they threaten and challenge the government and raise their profile. The task of a Judge in considering this is not to allocate an appellant into the right ‘box’ but to assess whether the appellant has shown that the appellant, having regard to all the relevant evidence including this, faces a real risk of persecution. That in my judgment is what the Judge, in particular in para.61, has done. She has rejected that the appellant is an activist as such, rejected that he has an enhanced profile, noted that there was no evidence that that authorities were aware of his profile and concluded, looking in particular at the CPIN, that the appellant is not at a real risk of persecution as a result of his sur place activities.
30. Given that this is a finding of fact based on an evaluation of all the evidence by a specialist tribunal. what the appellant in reality therefore has to show is that the this finding is plainly wrong. A finding will only be plainly wrong if it is one no reasonable judge could have reached (see Volpi v Volpi [2022] EWCA Civ 464, [2022] 4 WLR 48 at [2(ii]]). This is recognised by the authorities to be a very high threshold and in my judgment the appellant does not come close to meeting it. The Judge’s reasoning in para.61 is brief but there is nothing, let alone a compelling reason, in the decision to displace the assumption I must make (see Volpi at [2(iii)]) that she took all of the evidence into account. This is particularly so given the length at which she went through and attributed weight to the evidence in the preceding paragraphs. The fact that there was a “considerable quantity of evidence” of his activism, as Judge Mulready noted in granting permission to appeal, is nothing to the point. It is the quality of that evidence that matters and the Judge considered it in the round and weighed it, as she was properly entitled to do.
31. To the extent that the Grounds contain a more general reasons challenge, this was not pursued orally by Mr Layne at the hearing, and in my view rightly so. The Judge’s reasons are in my view adequate and intelligible. They enable the appellant and an appeal court to understand why the Judge reached the conclusions she did.
32. In the circumstances, this appeal falls to be dismissed.
Notice of Decision
The decision of First-tier Tribunal Judge Khan dated 24 September 2024 does not involve the making of an error of law and shall stand.

Paul Skinner

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

9 March 2024