Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005733

First-tier Tribunal No: RP/50002/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

20th June 2025

Before

UPPER TRIBUNAL JUDGE HIRST

Between

SA
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Slatter of counsel, instructed by Lawmatic Solicitors
For the Respondent: Mr Lindsay, Senior Home Office Presenting Officer

Heard at Field House on 11 April 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 either directly or indirectly. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The Appellant appeals under ss82 and 84 Nationality, Immigration and Asylum Act 2002 against the Respondent’s decision dated 14 December 2023 to refuse his protection claim.
2. The appeal was originally allowed by the First-tier Tribunal on 2 November 2024. The Respondent appealed and on 5 March 2025 the Upper Tribunal set aside the decision of the First-tier Tribunal and listed the case for rehearing.
Background
3. The Appellant is a national of Bangladesh. He arrived in the UK on 13 November 2021 with entry clearance as a student.
4. On 25 February 2022 the Appellant claimed asylum. The basis of his claim was that he had as a student been active in politics as a member of the student wing of the Bangladeshi National Party (‘BNP’), as a result of which he had been subjected to threats and attacks by members of the Awami League. The Appellant also claimed that after he had left Bangladesh, the police had visited his home looking for him, because an arrest warrant had been issued as the result of politically motivated criminal charges. The Appellant claimed to have continued his political activities on behalf of the BNP whilst in the UK.
5. The Respondent refused the Appellant’s claim on 14 December 2023. The Respondent accepted that the Appellant had been a member of the student wing of the BNP and had faced physical attacks in Bangladesh. However, the Respondent did not accept that the Appellant had held a prominent or high-profile position in the BNP, nor that he was of interest to the Bangladeshi authorities. The Respondent did not accept that the documents provided by the Appellant in support of his claim were reliable.
6. The Appellant’s appeal came before the First-tier Tribunal, which in a decision promulgated on 2 November 2024 allowed the appeal. The Tribunal found that the Appellant was credible and had given a consistent account of his experiences which was in line with the background evidence. The judge made findings that the Appellant had been a member of the student wing of the BNP, had been attacked on campus by Awami League supporters, and had had politically-motivated criminal proceedings filed against him. The Tribunal noted that the Awami League government had fallen, and that the Appellant had stated in his asylum interview that if there were a change in government he intended to return to Bangladesh, but found that the political situation in Bangladesh had not yet resolved and that there was no evidence to demonstrate one way or another what would happen with the outstanding criminal proceedings.
7. The Respondent sought permission to appeal, which was granted by the First-tier Tribunal on 16 December 2024. At an error of law hearing on 10 February 2025, a panel of the Upper Tribunal (Upper Tribunal Judge Hirst and Deputy Upper Tribunal Judge Beach) found that the First-tier Tribunal had erred by failing to make findings as to whether the criminal proceedings against the Appellant remained outstanding and whether he would be at risk as a result. We set the decision aside and listed the appeal for remaking, with the credibility findings of the First-tier Tribunal preserved.
8. On 10 April 2025 the Appellant’s solicitors filed a brief supplementary bundle which included a letter dated 7 April 2025 from M. Saifur Rahaman, the Appellant’s advocate in Bangladesh, updating the Appellant as to the ongoing criminal proceedings against him.
The appeal hearing
9. Mr Slatter indicated at the outset of the hearing that he had not been aware that the matter was listed for remaking and had been instructed to deal with an error of law hearing only. The case was adjourned to allow Mr Slatter to take instructions, following which he confirmed that he was not seeking an adjournment and wished to proceed. The hearing was adjourned briefly for a second time when it became apparent that the Appellant’s objective bundle had not been received by the Upper Tribunal. The hearing eventually began at 12pm.
10. The Appellant gave evidence via a Sylheti interpreter. He adopted his witness statement dated 17 July 2024. In response to questions by Mr Slatter, the Appellant confirmed that Mr Rahaman had found out the status of the ongoing criminal proceedings by attending the court on 7 April 2025.
11. In cross-examination, the Appellant stated that although there had been a change of government, there were still politically-motivated cases which had been brought by the Awami League which were pending. He said that he knew from colleagues and peers that other cases were still pending. He confirmed that Mr Rahaman was his lawyer in Bangladesh and had been instructed in the criminal proceedings for the previous five months. When asked why Mr Rahaman had not made any reference to any steps taken to lodge a defence to the proceedings, the Appellant said that Mr Rahaman was dealing with his case on the basis that he had provided the letter dated 7 April 2025. When pressed further by Mr Lindsay, the Appellant said that his father was acting on his behalf and he did not know whether a witness statement had been presented for him. He was asked why Mr Rahaman did not explain how he knew that false cases were still ongoing, and said that Mr Rahaman had mentioned that there were other cases still pending which had been brought by the Awami League. The Appellant was asked why, if he was not guilty of any crime, he had anything to fear from the proceedings, and said that the police and courts had not changed and were still working for the opposition party (the Awami League). The government had changed but the situation had not yet resolved so as to bring political peace. Lastly, the Appellant was asked about his statement in his asylum interview in October 2023 that his intention was to return if the government changed in the January 2024 election. He responded that he had meant that if the BNP were to come to power his intention was to return.
12. In submissions, Mr Lindsay relied on the Respondent’s decision letter. He recognised that the credibility findings of the First-tier Tribunal had been preserved, but submitted that it was open to the Upper Tribunal to form its own view of the evidence heard at the remaking hearing, and asked the Tribunal to revisit the overall finding of the First-tier Tribunal that the Appellant was credible. He noted that the First-tier Tribunal had not accepted the Appellant’s documents as reliable and that despite the judge’s positive findings, there had clearly been concerns about inconsistencies and embellishments in the Appellant’s account. The Appellant’s evidence to the Upper Tribunal had been evasive and unclear; even on his account there had been no steps taken to mount any kind of defence, which gave rise to a powerful inference that the proceedings were not genuinely taking place.
13. Mr Lindsay relied on the Country Policy and Information Note (‘CPIN’) dated December 2024, which indicated that on the objective information it was inherently unlikely that BNP leaders or members would face persecution, and that in general the state was able to provide effective protection to persons fearing state or non-state actors. Even if proceedings were pending against the Appellant, there was no reason to doubt that if he were innocent he would be found not guilty of any offence. Even if the Appellant had a subjective fear of persecution, it was not objectively well-founded given the available country evidence.
14. On behalf of the Appellant, Mr Slatter submitted that the Respondent’s submissions in relation to credibility had already been rejected by the Upper Tribunal at the error of law stage, and the positive credibility findings made by the First-tier Tribunal had been preserved. The Appellant had demonstrated that a politically-motivated case has been filed against him and remained pending. It was not correct to say that the Appellant was not mounting a defence; his evidence was that his father had instructed a lawyer who was fighting the case. The issue for the Tribunal was whether there was a reasonable likelihood that the Appellant was at risk as a result of the proceedings.
15. Mr Slatter submitted that the CPIN did not preclude there being a real risk to the individual applying the appropriate standard of proof. He drew an analogy with cases involving cessation of refugee status under Article 1C of the Convention and the relevant UNHCR guidelines. Where there had been a change of regime, time needed to elapse before the durability of the change could be tested; it required an enduring change to be established. That was not yet the case in Bangladesh: it was too early to tell whether the Appellant was no longer at risk, at least until elections. The appeal should be allowed.
Legal framework
16. As the Appellant’s claim for asylum was made before 28 June 2022, the framework in Nationality and Borders Act 2022 does not apply to his appeal.
17. To succeed in his asylum appeal, the Appellant must demonstrate that he has a well-founded fear of persecution for a Convention reason (race, religion, nationality, membership of a particular social group, or political opinion). The burden of proof is upon the Appellant and the standard of proof is the lower standard applicable to protection cases of a “real risk” or “reasonable likelihood”, which is considerably lower than the balance of probabilities. In relation to humanitarian protection, the Appellant must demonstrate substantial grounds for believing that he faces a real risk of suffering serious harm in his country of origin. Again, the burden of proof is on the Appellant and the lower standard of proof is applicable.
Issues in the appeal
18. The central issue in the appeal, as both representatives recognised in submissions, is relatively narrow. The sole basis on which the Appellant now fears persecution on return is the criminal proceedings which were brought against him in November 2021 and which he claims remain pending.
19. There are therefore two issues to be determined:
(i) whether the criminal proceedings are still pending as the Appellant claims; and
(ii) if so, whether the Appellant has demonstrated a real risk of persecution as a result.
Discussion and decision
20. I have considered all of the documents before me, including the Appellant’s evidence filed before the First-tier Tribunal together with the supplementary bundle filed in the Upper Tribunal. I have also considered the December 2024 CPIN (‘Bangladesh: Political situation’) in full.
21. The basis on which this appeal proceeded, following the Upper Tribunal’s error of law decision, was that the credibility findings of the First-tier Tribunal were preserved. Despite Mr Lindsay’s invitation, I decline to go behind those findings and accordingly I take as my starting point that the Appellant was previously a member of the student wing of the BNP, that he suffered attacks by members of the Awami League as a result, and that a politically-motivated criminal case was filed against him in November 2021 which resulted in a warrant for his arrest issued in January 2022.
22. In relation to the first issue (whether the criminal case remains pending) the evidence is the one-page letter from Mr Rahaman dated 7 April 2025. The letter was sent to the Appellant by email dated 8 April 2025. Mr Rahaman’s signature and the letterhead identify him as an advocate of the “Judge’s Court, Moulvibazar”. The letter is addressed to the Appellant and states that based on the information provided by the Appellant, Mr Rahaman has found out that a case filed on 5/11/2021 under ss15(3) and 25D of the Special Powers Act of 1974 is “pending in the learned Sessions Judge’s Court as Sessions Case No. 29/2022”. Mr Rahaman states that 3 witnesses of the state have already testified and that a warrant for the Appellant’s arrest has been issued by the court.
23. The Respondent challenges the reliability of Mr Rahaman’s letter but does not suggest the letter is a forgery and there is nothing on the face of the letter which would suggest it is not genuine. I am prepared to accept that the letter is written by Mr Rahaman, that he is an advocate of the Moulvibazar court and that the criminal case filed against the Appellant in 2021 remains pending.
24. However, I do not accept that the case against the Appellant is actively being pursued. On the Appellant’s own evidence, Mr Rahaman was only instructed in the criminal proceedings in November 2024, shortly after the Upper Tribunal error of law decision was promulgated. He was not instructed as the Appellant’s criminal defence advocate in the ongoing case, but purely to make an enquiry as to whether the criminal case was still pending. It was not until 7 April 2025, some five months after he was instructed, that Mr Rahaman made an enquiry of the court to find out whether the case was pending. Mr Rahaman’s letter does not refer to any hearings in the case either in the past or in the future. Nor does the letter state when the state witnesses were called or what their evidence was. The Appellant has not, on his own evidence, made any statement or filed a defence in the proceedings to date. There is no evidence from the Appellant’s father, who the Appellant says is acting on his behalf in the criminal proceedings, as to any steps he has taken, and when the Appellant was asked what steps he had taken in his defence he said only that “they are working on it”. The case may be pending in the sense that it has not been struck out, but the evidence before me does not indicate that there has been any further activity in the case since the arrest warrant was issued in 2022.
25. I next consider whether the Appellant would nevertheless face a real risk of persecution or serious harm upon his return as a result of the proceedings. The Appellant has not filed any further objective evidence as to the situation in Bangladesh and the most up to date evidence before me is therefore the CPIN (‘Bangladesh: Political situation’, December 2024) which I have considered in full. The CPIN makes it clear at section 4 that although the Bangladesh law enforcement agencies, including the judiciary, were historically aligned with the Awami League government, the interim government has since August 2024 commenced a series of reforms. Those reforms have included the resignation and replacement of the Supreme Court Chief Justice, and the transfer or promotion of three hundred lower court judges. The evidence in section 4 of the CPIN is that the police and criminal justice system are functioning, although their effectiveness continues to be undermined by poor infrastructure, corruption and bribery.
26. Section 13 of the CPIN (‘Reform of the security forces and judiciary’) confirms that the interim government has replaced officials who have engaged in political partisanship, including senior and mid-level members of the judiciary. The new Chief Justice outlined judicial reforms on 21 September which aim to abolish the executive’s control of promotion and transfer of judges. On 25 September 2024 the Supreme Court launched a helpline providing guidance on litigation services and filing complaints. At §13.3.5, the CPIN quotes a report by the International Crisis Group which indicates that “Unjust cases filed against protest leaders in July and August are being dropped; earlier charges against opposition figures are also expected to be withdrawn gradually.” I cannot find anything in the CPIN which indicates that there is a real risk that politically motivated charges brought under the previous regime will be pursued under the new regime or will result in convictions.
27. I accept that judicial reform may take some time. However, the evidence before me does not indicate that the criminal proceedings against the Appellant are being actively pursued such that the arrest warrant is likely to be executed upon his return to Bangladesh. If the arrest warrant were to be executed, the evidence in the CPIN is that the case against the Appellant, which was politically motivated, is not reasonably likely to result in his prosecution or conviction. The proceedings against him are one of the “charges against opposition figures” which are expected to be withdrawn. If the Appellant were to be brought to court, I find that he is not even to the lower standard at real risk of a politically-motivated prosecution, conviction or imprisonment.
28. I therefore do not accept even to the lower standard that the Appellant is at real risk of persecution or serious harm on return to Bangladesh.

Notice of Decision
The Appellant’s appeal is dismissed.

L Hirst

Judge of the Upper Tribunal
Immigration and Asylum Chamber

19 June 2025