Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000003

First-tier Tribunal No: PA/01807/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 11th of March 2025

Before

UPPER TRIBUNAL JUDGE SMITH
DEPUTY UPPER TRIBUNAL JUDGE HARRIS

Between

D D
[ANONYMITY DIRECTION MADE]
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In person
For the Respondent: Mr K Ojo, Senior Home Office Presenting Officer

Heard at Field House on Friday 28 February 2025

Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant (D D) is granted anonymity. The appeal involves protection issues, and it is for that reason appropriate to make an anonymity direction despite one not being sought.
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

BACKGROUND

1. The Appellant appeals against the decision of First-tier Tribunal Judge Oxlade promulgated on 25 October 2024 (“the Decision”) dismissing his appeal on protection and human rights grounds.

2. The Appellant is a national of Nepal. He came to the UK in September 2022 with leave as a student. On 15 December 2022, he claimed asylum. He claims that he is at risk on return due to his political opinion. He says that he was detained by police following a protest. He claims that he was ill-treated during detention. He also says that as a result of his political opinion, police raided his home after he left Nepal and are looking for him. He also says that he has participated in events in the UK against what he says is “the present Nepalese corrupt government”.

3. The Appellant has claimed to support in the past the Rastriya Prajatantra Party (“RPP”) or the Rastriya Swatantra Party (“RSP”) which he said in interview were the same. He also said that he was the youth organiser for one or both of those parties. The Appellant claims that he now supports the “Campaign to Protect the Nation of Nepal, Descendant Citizens, and Fight Against Corruption”, an organisation headed in the UK by Prem Gaha Magar. Mr Magar attended the hearing before us to assist the Appellant. As we will come to, he has also written a letter dated 25 February 2025 setting out the aims of that organisation and providing support for the claim of the Appellant who he says is the Principal Secretary of the campaign.

4. The Appellant also claims to suffer from mental health problems and claims that he cannot be returned to Nepal also for that reason.

5. The Respondent refused the Appellant’s claim by letter dated 28 March 2024. The Respondent did not accept the claim to be credible based on inconsistencies in the Appellant’s account and inconsistencies between the claim and external, background evidence.

6. The Appellant did not attend his appeal hearing. As recorded at [§10] of the Decision, the Appellant was given notice of that hearing and that it would be face to face. He wrote to the Tribunal saying that he could not attend due to his personal circumstances without elaborating on those reasons and did not seek an adjournment. He invited the Tribunal to proceed on the basis of the documents he had submitted. As the Judge noted at [§8] of the Decision those were said to include a letter from Mr Magar which was said to be attached to the Appellant’s statement but was not attached. As the Judge there recorded, the letter was not in the bundle and could not therefore be considered by her.

7. The Judge did not accept that the Appellant was of interest to the authorities in Nepal. Her finding in that regard is reasoned at [§20-27] of the Decision. She also found that the Appellant is not seriously ill due to a lack of medical evidence about his mental health problems ([§28]). She therefore dismissed the appeal on all grounds.

8. The Appellant is in person. His grounds are for that reason very short and simply state as follows:

“1) My current country situation is not considered.
2) All my evidence are not considered.
3) My Human Rights are not taken into account.”

9. Permission to appeal was granted by First-tier Tribunal Judge Mulready on 12 December 2024. Her reasons are unconnected with the Appellant’s grounds (which she notes at [§2] of the grant are unparticularised) and we therefore set out the reasons for the grant in full so that the Appellant is able to follow what we say below about the errors asserted:

“..3. This is post-NABA protection appeal, and as such, as per the guidance from JCK (s.32 NABA 2022) Botswana [2024] UKUT 00100 the judge was obliged to determine the following matters on the balance of probabilities:
(a) Taking the appellant’s claim at its highest, is there a convention reason?
(b) Does the Appellant fear persecution for that convention reason?
And if so, the judge was then obliged to determine whether it is reasonably likely that:
(c) The Appellant would be persecuted for that Convention reason;
(d) There would not be sufficient protection available; and
(e) The Appellant could not internally relocate.
4. The judge did not explicitly consider all of the questions set out above, and at paragraph 15 of the Decision, the judge stated ‘The burden rests on the Appellant to show on a balance of probabilities that there is a real risk of persecution on return to Nepal, on account of his political opinion, and that he cannot (inevitably, as it is a state mechanism who is persecuting him) seek state protection or internally relocate.’ This is arguably an error as to the two stage approach and as to the standard of proof for the second stage.
5. Given that the appeal turned largely on the judge’s findings as to the Appellant’s credibility, and that the judge may have applied an erroneously high standard of proof to the Appellant’s evidence, this is an arguable error of law material to the outcome of the appeal, and so permission to appeal is granted.”

10. The appeal comes before us to decide whether there is an error of law. 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.

11. We had before us a bundle prepared by the Tribunal running to 227 pages containing the documents relevant to the appeal to this Tribunal, and the Appellant’s and Respondent’s bundles before the First-tier Tribunal. We refer to documents in that bundle as [B/xx].
12. As the Appellant was in person, we agreed with him that it was appropriate first to hear from Mr Ojo and then for the Appellant to respond to what was said. Having heard from Mr Ojo and the Appellant we indicated that we would reserve our decision and provide our reasons in writing which we now turn to do.

DISCUSSION

Reasons for the Grant of Permission

13. The reasons for the grant of permission turn on the guidance given by this Tribunal in JCK (s.32 NABA 2022) Botswana [2024] UKUT 00100 (“JCK”) which reads as follows:

“1. Sections 31-36 of the Nationality and Borders Act 2022 apply in an appeal where the claim for international protection was made after 28 June 2022.

2.       In an appeal to which s32 NABA 2022 applies, the proper approach is to address each of the questions posed by the section expressly and sequentially.

3.       Question 1 is whether, on the balance of probabilities, the claimant has a characteristic which could cause them to fear for one of the five reasons set out in the Refugee Convention. In simple terms: is there a Convention reason?

4.       Question 2 is whether, on the balance of probabilities, the claimant "does in fact fear" such persecution.   This is the 'subjective fear' test.

5.       Questions 3-5 are matters of objective evaluation and must each be determined on the lower standard of proof: 'a reasonable degree of likelihood'. Is it reasonably likely that there is:

-          a risk of harm
-          an absence of state protection, and
-          no reasonable internal flight alternative.”

14. It is not disputed by the Respondent that this is a case to which Nationality and Borders Act 2022 (“NABA”) applies. Nor did Mr Ojo dispute that the Judge had not expressly directed herself to NABA or the guidance in JCK. He said however that the Judge had correctly applied NABA in substance.

15. Applying NABA and the guidance in JCK, the first question which the Judge needed to ask was whether the persecution claimed was for a Convention reason. However, since this was not at issue in this case, there was no need for her to make a finding.

16. Similarly, as Judge Mulready observed when granting permission and the Judge herself recognised, sufficiency of State protection is not relevant as the Appellant claimed to fear the Nepalese authorities. Whilst that would not prevent the application of an internal relocation option in all cases, that is not part of the Respondent’s case in this appeal. The only questions for the Judge therefore were questions two and three as set out in JCK.

17. As the guidance in JCK makes clear, the second question is whether an appellant holds a genuine subjective fear or put another way (as it is in section 32(2) NABA) whether an appellant “in fact fear[s] such persecution”. As that is a backward-looking exercise, there is no difficulty in applying a balance of probabilities test.

18. That has to be compared with the third question which requires a judge to assess whether an appellant would be persecuted on return. That is a forward-looking assessment to which the “real risk” or “reasonable likelihood” standard continues to apply (section 32(4)(a) NABA).

19. As JCK makes clear, the second question is not just about credibility; even if credible an appellant may have ceased to have a subjective fear. Equally, it is said that credibility is not alone determinative of whether a person is at risk on return. As is made clear in JCK, however, the real issue is whether an appellant has a genuine subjective fear. Where a claim is found not to be credible so that the appellant has no such fear because the past events from which that fear is asserted to arise have been fabricated, it is difficult to see how a judge could find when considering the following question that the appellant is at real risk. Indeed, section 32(3) NABA indicates that it is only if an appellant is found to in fact fear persecution on return that one moves to the issue of future risk on return at all (section 32(4)(a)).

20. We turn then to the Judge’s self-direction regarding the burden and standard of proof at [15] of the Decision which reads as follows:

“The burden rests on the Appellant to show on a balance of probabilities that there is a real risk of persecution on return to Nepal, on account of his political opinion, and that he cannot (inevitably, as it is a state mechanism who is persecuting him) seek state protection or internally relocate.”

21. We have no difficulty in finding that the Judge did not correctly direct herself in law as to burden and standard of proof. Given the questions which remained for determination in this appeal, the Judge should have said that she needed to consider on the balance of probabilities whether the Appellant in fact fears persecution and then, if she accepted that he did, whether there was a reasonable likelihood that he would be at real risk of persecution on return.

22. However, the real issue here is whether the erroneous self-direction has any consequence for the outcome. As the Judge observed at [19] of the Decision, “[t]he Appellant’s claim rested on his credibility” which she went on to find undermined for the reasons thereafter given. In other words, the Judge determined at the first stage that the Appellant did not in fact fear persecution on return. As section 32(3) NABA makes clear, if that were the conclusion, one does not move on to section 32(4) where risk on return is considered.

23. Assuming therefore that we accept that the Judge was entitled to make the findings she did about the Appellant’s claimed fear, the erroneous self-direction does not undermine the conclusion or reasoning and there would be no reason to set aside the Decision in consequence.

24. Understandably since he is in person, the Appellant’s submissions to us and indeed his pleaded grounds were directed at the Judge’s reasons for disbelieving his claim. We therefore turn to consider those reasons and the Appellant’s criticisms of them.

Credibility Findings

25. The Judge’s findings can be summarised as follows:

(1) The Appellant claimed in his screening interview that he supported the RPP but at the substantive interview that he supported the RSP. He said that they were the same party but that was not borne out by the background evidence ([§20]).
(2) The Appellant claimed that since June 2024, following the making of his claim, he supported two politicians. He produced an article concerning Durga Prasai who is one of those politicians. That is at [B/47]. As the Judge points out, this refers to Mr Prasai (said to be a medical entrepreneur) being arrested for an offence under the Electronic Transactions Act following a complaint by an unnamed female individual ([§21]). We observe that there is no indication in this article that the arrest was at the instigation of the Nepalese authorities. The Appellant handed to us at the hearing other articles concerning Mr Prasai but those were not before the Judge, and she cannot therefore be criticised for not considering them.
(3) The Appellant had not explained his change of allegiance nor why his more recent allegiance would place him at risk on return ([§21]). We will return to this point below.
(4) The Appellant’s account of ill-treatment for political reasons was not supported by background evidence ([§23]). Reference is made to the Country Policy and Information Note 2023 (“the CPIN”) which appears at [B/166-202] and a Freedom House report 2022 which is at [B/203-216]. We have considered those documents and conclude that the summary given by the Judge at [§23] of the Decision is broadly accurate. We have also considered the US State Department report and Amnesty International Report on which the Appellant placed reliance. Those are at [B/48-95] and [B/96-98] respectively. The “Police Report” on which the Appellant also relied (at [B/99-105]) is dated 1993 and therefore well out of date. We accept that the other two reports do not paint a wholly positive picture but indicate that the main target of action by the authorities are minorities and marginalised communities or journalists. The USSD in particular indicates that freedom of expression and association is generally respected which is consistent with the summary which the Judge provides of the CPIN.
(5) The photographs of injuries do not advance the Appellant’s case as there is no evidence to corroborate date or cause ([§24]). Again, we return to this below.
(6) The Appellant had not provided any evidence from his family to corroborate his claim that his home had been raided. This claim is inconsistent with background evidence regarding interest by the authorities in protesters. The Appellant’s account of his opposition lacked detail ([§25]). Again, we return to this below.

26. The Appellant provided a very brief witness statement in support of his case. That appears at [B/45-46]. At [§4-8] of that statement, he sets out the basis for his claim as follows:

“4. On the 21/01/20, I belonged to Praajantra Party but 12/06/2024 I left that party and joined on the campaign for nation, nationality, religion, culture and protection of the citizen led by Durga Prasain and Prem Gaha Magar.
5. Now, I am youth President of my district. My responsibilities are to organize my fellow friends to this campaign.
6. On the 20 November 2022. There was parliamentary and provincial election in Nepal. I strongly opposed to the election. Nepali police have known about it and raided on 21st November 2022 at my home and seized all documents related of party. After that Nepali police are looking at me time to time at my home in Nepal. Here in the UK, the movement led by President UK Mr Prem Gaha Magar. I attached his letter also.
7. I have participated in different rallies and events in the UK against the present Nepalese corrupt government.
8. The Nepalese authorities is well acquainted all my activities. Therefore, I would get arrest, tortured and be killed if I am forced to go back to Nepal.”

27. As appears from the foregoing, the Appellant says that he did not belong to Mr Magar’s party until June 2024. We observe that the title of the campaign is not exactly the same as that given in Mr Magar’s letter, but we do not place any weight on that. As the Judge points out in the Decision, she did not have a letter from Mr Magar. We do have a letter which the Appellant handed in at the hearing before us but that is dated 25 February 2025 and so could not have been before Judge Oxlade. We also observe that the Appellant’s account of being “youth President” is at odds with what Mr Magar says about his role (as “Principal Secretary”) but again that is not an inconsistency on which we place any weight as the letter was not before Judge Oxlade.

28. Judge Oxlade’s criticisms of the Appellant’s evidence are however borne out by his statement. As she says, the Appellant has not explained what caused him to change allegiance. He does not say why his association with the campaign he now claims to support would place him at risk. The Judge considered the article about Druga Prasai to which we have referred above but was justified in saying what she did about that.

29. The Judge did not have the letter from Mr Magar which is now said to explain the risk that the Appellant might face on return. We observe that even this letter does no more than repeat the Appellant’s case about past events without explaining his involvement in any opposition movement. As it is, the Judge was justified in saying what she did about the lack of detail in the Appellant’s statement regarding his “strong opposition”.

30. As to the photograph to which the Appellant also drew our attention, the only photographs are of the Appellant’s injuries at [B/161-165] (in the Respondent’s bundle). We are unable to tell whether those are of the Appellant. The Judge of course could not assess that as he did not attend the hearing.

31. Even assuming they are of the Appellant, there is no other evidence about those injuries. The Appellant told us that there was no medical evidence about the injuries because he was afraid of the police and therefore did not go to hospital. Instead, he was treated by someone in his village. We observe that the photographs bear the reference “AIC 7773087” which appears to be a reference to the Appellant’s asylum interview claim and suggests that they were either taken by the Home Office or provided to the Home Office in February 2024. That is consistent with the index to the Respondent’s bundle where they are described as being “Further evidence including images 22.02.24”. The photographs are not themselves dated. Given the lack of any other evidence, the Judge was entitled to say what she did about the injuries and photographic evidence.

32. We have also read the asylum interview records carefully. Those are at [B/121-136] (screening interview) and [B/137-160] (substantive interview).

33. We accept that the Appellant did say that he was treated in his village for his injuries rather than at hospital because of fear of the police. However, the Judge was still entitled to refer to the lack of evidence about the injuries other than the photographs. Other than the account of the one protest when the Appellant claims to have been arrested and tortured (contrary to his earlier account not to have been detained), the account of the police having visited his house and an assertion that the party to whom he then belonged wished to restore the monarchy, the Appellant provides no details about his opposition activities and the Judge was therefore entitled to say what she did about his case.

34. The Judge took into account the Appellant’s evidence about the claimed detention and torture and the police visit. She noted at [§25] of the Decision that the call for the monarchy to be restored was a common one. She also noted the lack of evidence from the Appellant’s family about the police raid. The Appellant said in interview that he remained in contact with his family.

35. There was no mention in the substantive interview (in February 2024) of the Appellant having attended rallies etc in the UK. Indeed, even now the only evidence we were shown was a photograph of him standing alone in front of the Nepalese Embassy in London holding a small handwritten piece of paper referring to the campaign group with which he now claims to be associated, giving his name and referring to corruption of the present Government. That photograph was not before the Judge.

CONCLUSION

36. Overall, we can find no error in the Judge’s findings or reasoning. We accept that the Judge has erred in her self-direction as to standard of proof. However, given the reasoned adverse credibility findings about the Appellant’s claim about past events (which was appropriately considered on the balance of probabilities) along with what is said about the background evidence, that error in self-direction makes no difference to the reasoning or findings. Accordingly, the error does not lead us to set aside the Decision.

37. As we explained to the Appellant, that conclusion is the end of the road for this appeal. However, if he has further evidence which he wishes the Respondent to consider, including Mr Magar’s letter and further background evidence about Mr Prasai, then it is open to the Appellant to put that evidence before the Respondent for her to consider. The Judge cannot be criticised for failure to take into account evidence which she did not have before her.

38. For the reasons set out above, the Decision does not contain any material error of law. We therefore uphold the Decision with the result that the Appellant’s appeal remains dismissed.

NOTICE OF DECISION
The Decision of First-tier Tribunal Judge Oxlade promulgated on 25 October 2024 does not involve the making of an error of law which is material to the outcome. We therefore uphold the Decision with the result that the Appellant’s appeal remains dismissed.

L K Smith
Upper Tribunal Judge Smith
Judge of the Upper Tribunal
Immigration and Asylum Chamber

4 March 2025