Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005633

First-tier Tribunal No: PA/56879/2023
LP/00714/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 10th of June 2025

Before

UPPER TRIBUNAL JUDGE BLUNDELL
and
DEPUTY UPPER TRIBUNAL JUDGE HARRIS

Between

RA
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In person
For the Respondent: Mr Parvar, Senior Presenting Officer

Heard at Field House on 21 March 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. The outcome of this appeal is agreed between the parties and this decision is in correspondingly short form.
2. The appellant is a Bangladeshi national. He appeals with the permission of Upper Tribunal Judge Gleeson against the decision of First-tier Tribunal Judge Dineen (“the judge”), who dismissed his appeal against the refusal of his protection claim.
3. The judge’s decision is very concise. The reasons he gave for finding that the appellant that the appellant’s return to Bangladesh would not be in breach of the Refugee Convention were expressed in seven sentences at [24]-[30] of his decision. The first of those reasons was that the appellant had not been the subject of any politically motivated attacks between 2018 and his departure from Bangladesh in early 2022.
4. Permission to appeal was sought and secured by the appellant’s former representatives. We need not summarise the grounds of appeal. When the appeal came before us, the appellant stated that he did not wish to be represented and that he did not wish to have an interpreter. He had lost faith in interpreters, he said, and he was capable of representing himself in English.
5. We heard submissions from the appellant and from Mr Parvar. So as to ensure that the appellant had a proper opportunity of representing himself, we ensured that he had a copy of the relevant papers and we took him through the section of the judge’s decision to which we have already referred. When we reminded the appellant of the finding that he had not been targeted in Bangladesh since 2018, he was quite adamant that he had not said that to the judge, and he appeared genuinely bemused by the point.
6. Having heard argument on the grounds, we reserved our decision. On discussing the case after the hearing, we were both concerned by what the appellant had said about his evidence before the judge. We noted that the asylum interview and the witness statement were most unhelpful, in that neither document recorded precisely when the appellant was said to have been attacked in Bangladesh, and we resolved to call for the recording of the proceedings before the FtT.
7. The recording of the proceedings before the FtT was received by the Upper Tribunal on 10 April 2025. We listened to the recording and then we issued directions which reflected what we had heard. The material parts of the directions were as follows:
It was suggested to the appellant in cross-examination that he was last attacked in 2018. He did not accept that, and stated that he was first attacked in 2018. He was asked when the most recent attack took place. He said that it was on 2 February 2020. It was suggested to him by the Presenting Officer that he had not faced any problems between that date and his departure from Bangladesh in February 2022. The appellant stated that he had ‘faced many problems including threats’ during that time. These exchanges took place between 35 and 40 minutes into the hearing.
The appellant gave the same account during re-examination, between 66 and 68 minutes into the hearing. It is not clear to us, therefore, why the Presenting Officer went on to submit (at 72 minutes into the hearing) that the appellant had faced no issues since 2018 and that he had had no problems in Bangladesh between 2018 and 2022.
For these reasons, it is our provisional view that the judge proceeded on a mistaken basis of fact when he concluded at [24] that it was common ground that the appellant had not faced difficulties in Bangladesh since 2018. That was not his evidence in cross-examination or re-examination and there appears to be nothing in the written evidence which suggests that the judge was correct to proceed on that basis.
In light of the above, we direct that the appellant and the respondent file and serve written submissions on the appropriate disposal of the appeal by 4pm on 16 May 2025. In particular, we direct that the parties should address:
(i) Whether they wish to listen to the recording of the FtT hearing at a listening appointment at Field House;
(ii) Whether they are content to address this question by way of written submissions or whether a further hearing should be convened; and
(iii) If it is accepted that the judge proceeded on a mistaken basis of fact, whether his conclusions in the alternative, at [25]-[29], suffice to support his dismissal of the protection limb of the appeal.
8. On 21 May 2025, Mr Parvar responded to our directions. He indicated that the respondent did not wish to attend a listening appointment; that the respondent was content to address the questions posed by way of written submissions; and that he accepted that the FtT had proceeded on a mistaken basis of fact. The respondent was therefore persuaded, Mr Parvar, indicated “to retreat from her opposition of this appeal” because of that error. He accepted that the decision of the FtT would have to be set aside as a result of that error. The respondent was neutral on disposal, although she noted that the appellant had taken no issue with the judge’s findings on Article 8 ECHR, and it was submitted that those findings should be preserved.
9. On 23 May 2025, the tribunal received communication from the appellant’s former representatives, who confirmed that they had been re-instructed. They invited the tribunal to find that the judge had been mistaken in his recording of the evidence and to remit the case for consideration afresh.
10. It is clear to us that something went wrong before the FtT. Whether the judge did not take an accurate note of the evidence, or whether he proceeded on the wholly erroneous basis relied on by the Presenting Officer in submissions, we cannot know. What is clear is that it was never the appellant’s account that he had only been attacked before or during 2018. Instead, he said quite clearly that he had been attacked during and after 2018. The principal basis on which the judge found against the appellant was therefore founded in a mistake, and Mr Parvar does not seek to support the judge’s decision with reference to his alternative findings. We think that Mr Parvar was correct to adopt that stance, since it is not inevitable that the judge would have come to those findings if he had understood the facts correctly.
11. In the circumstances, we will set aside the decision of the judge and remit the case to the First-tier Tribunal for consideration afresh. That is the proper course in circumstances where the proceedings were tainted by unfairness, as they were here. Due to the judge’s mis-recording of the evidence, the appellant has not had a fair crack of the whip.
12. We note that Sheikh Hasina has been deposed and that the parties must be in a position to adduce further evidence about the effect of that change in regime on the level of risk to a BNP member such as the appellant (in the event that his account is true).
13. We also note what Mr Parvar said about the judge’s findings in relation to Article 8 ECHR. Whilst the absence of an error of law in the Article 8 ECHR assessment is relevant, it is not determinative to the scope of the hearing we should order. Whilst Mr Parvar is correct to note that no challenge was made to the judge’s assessment of that question, the fact is that a good deal of time has passed since the FtT’s decision, and we consider that it would be inappropriate in those circumstances to preserve the FtT’s analysis. We simply do not know how the appellant’s Article 8 ECHR claim might have changed since the appeal was dismissed more than a year ago. Given that the asylum limb of the appeal is to be heard afresh, we consider it preferable that the appellant’s entire circumstances are looked at again, by a different judge.
Notice of Decision
The appellant’s appeal is allowed. The decision of the FtT is set aside in full. The appeal is remitted to the FtT to be heard afresh by a different judge.

Mark Blundell

Judge of the Upper Tribunal
Immigration and Asylum Chamber

4 June 2025