Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000085

First-tier Tribunal No: PA/59495/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

11th April 2025

Before

UPPER TRIBUNAL JUDGE RIMINGTON
DEPUTY UPPER TRIBUNAL JUDGE BURGHER

Between

MJSC
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Z Malik, KC instructed by Lawmatic Solicitors
For the Respondent: Mr E Terrell, Senior Home Office Presenting Officer

Heard at Field House on 11 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 appellant appeals the decision of FtT Judge Cox dated 15th November 2023 which dismissed the appellant’s appeal against the respondent’s decision to refuse, on 19th October 2023 a protection and human rights claim.
Background
2. The appellant is a citizen of Bangladesh who entered the United Kingdom in October 2009 on a student visa valid until 31st December 2011. Owing to a breach of conditions, an extension of his visa was refused in January 2012. He became an overstayer but made a human rights claim in September 2015 which led to an appeal before Judge Taylor on 17th May 2017 which was dismissed. Judge Taylor found that the appellant was in effect making a claim for international protection on the grounds that the appellant and his partner would be the victims of honour killings (owing to religion) and there would be no sufficiency of protection in Bangladesh nor in India and they could not internally relocate. The judge drew an adverse inference as they had not made an asylum claim and dismissed the human rights claims. The appellant’s account as to very significant obstacles on return was rejected.
Grounds of Appeal
3. The grounds of appeal against the decision of Judge Cox in this instance were as follows:
(i) the judge erred in failing to follow the Joint Presidential Guidance Note No 2 of the 2010: Child, vulnerable adult and sensitive witness appellant guidance (the Joint Presidential Note) and in failing to make due allowances as to the appellant’s vulnerability. The medical evidence before the FtT showed the appellant had hypertension and depression and was taking medication. He clearly fell within section 59 of the Safeguarding Vulnerable Groups Act 2006.
There was nothing to indicate that the Joint Presidential Guidance Note had been followed in relation to practical conditions in giving evidence and in assessment of the evidence. AM (Afghanistan) v SSHD [2017] EWCA 1123 confirmed that where there was a failure to follow the Joint Presidential Guidance and make due allowance for an individual’s vulnerability it ‘will most likely be a material error of law’. That the representatives did not raise this point did not save the decision.
(ii) the judge compartmentalised the evidence and findings of fact. At [18]-[27] the judge considered credibility but at [27] made a conclusion and then after the adverse credibility finding, the judge turned his mind to the delay on the part of the appellant at [28]-[29]. The judge then considered the documentary evidence at [30]-[31]. The judge also made his findings on credibility before turning his mind to the documentary evidence and sur place activities. That approach was wrong in law. It was possible to state that there were issues which potentially damaged credibility, but this is not what the judge did. He made conclusive adverse findings and found the appellant was not a witness of truth.
(iii) the judge made inconsistent findings of fact on material issues. The judge found at [45] that the appellant was not genuine in his political activism and therefore did not accept he would continue to engage in BNP activity but earlier in the decision at [44] the judge found the appellant had been engaged in low level activity and he did not have a profile. His findings at [44] and [45] were irreconcilable.
The Scope of the Permission to appeal.
4. The grant for permission to appeal was entitled ‘partially granted’ and permission given on the basis of ground (ii) only which was found arguable. Grounds (i) and (iii) were not found arguable.
5. We received skeleton arguments from both Mr Malik and Mr Terrell in advance of the oral submissions both of which were helpful.
6. The first point taken was the extent of the grant of permission. Mr Malik submitted that the grant extended to include all three grounds. In the alternative an application for permission to appeal was made for grounds (i) and (iii). There was no application for an extension of time.
7. In relation to ground (i) Mr Malik advanced that the medical evidence had been produced to the FtT but there was nothing to show the judge recognised the appellant was a vulnerable witness. This was the responsibility of the judge. On ground (ii) after making an adverse credibility finding at [27] the judge at [29] considered the documentary evidence at [32]– [44]. It was tolerably clear in the way the judge expressed himself that he made up his mind on credibility prior to consideration of the documentary evidence.
8. Mr Terrell relied on Safi and others (permission to appeal decisions) [2018] UKUT 388 (IAC) which held that ‘It is essential for a judge who is granting permission to appeal only on limited grounds to say so, in terms, in the section of the standard form document that contains the decision, as opposed to the reasons for the decision.’ Here the decision was clear both in the decision section and in reasons section that permission was only granted on ground (ii). There was no ambiguity. The decision in the grant was to grant ‘partially’ and the body of the grant showed that permission was only applied to ground (ii). EH (PTA: limited grounds, Cart JR) Bangladesh [2021] UKUT 117 (IAC) only applied to the construction of the Upper tribunal procedure in its own grants of permission and was not on point as this grant did not relate to the Upper Tribunal. Absent an application for an extension of time this point should not be considered.
The hearing
9. At the hearing before us Mr Malik submitted that the grant of permission to appeal made no reference at all to ‘refusal’. Although paragraph 6 of the grant also stated that permission was given on ground (ii) only, rule 34(2) of The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (consolidated), stated that if there was a refusal the Tribunal should send a record of the decision to the parties as soon as practical and notification of the right to make an application to the Upper Tribunal for permission to appeal and the time and manner in which such an application should be made. He submitted that (i) the judge needed to say so expressly if there was a refusal, (ii) give reasons and (iii) there should be compliance with rule 34(2). At this point, Mr Malik did not produce any information on the notification sent to the solicitors. As per Ferrer (limited appeal grounds; Alvi) [2012] UKUT 304 (IAC), it was not abundantly clear that the judge had refused permission on grounds (i) and (iii). Even so Mr Malik submitted that he now applied to renew the application in relation to grounds (i) and (iii) and there was no prejudice to the Secretary of State.
10. At this point we permitted Mr Malik to pursue the grounds de bene esse, in order to make a decision on whether to permit renewal and if we did so, the ground itself.
11. Turning to the substance of the grounds, Mr Malik submitted that there could be no doubt with reference to the Presidential Guidance Note that the appellant fell within the definition of a vulnerable appellant at paragraph 2. He had hypertension and depression, and the Joint Presidential Guidance Note applied to anyone who received any form of health care, and the appellant received medication (mirtazapine and atorvastatin). Paragraph 5 of the Joint Presidential Guidance Note set out the steps the judge must take at the outset. Mr Malik accepted that there was a failure of the representatives to alert the judge to the vulnerability of the appellant, but the Joint Presidential Guidance Note made plain it was the responsibility of the judge to ensure compliance. Mr Malik referenced SB (vulnerable adult: credibility) Ghana [2019] UKUT 398 (IAC) such that the judge should adopt reasonable adjustments during the proceedings and take the vulnerability into account when assessing the evidence. A failure to follow the Joint Presidential Guidance Note would most likely be a material error of law as per AM (Afghanistan).
12. The decision under challenge reflected no reference to the Joint Presidential Guidance Note and there was nothing to indicate that the judge recognised the appellant was a vulnerable witness and there could be no confidence that the best practical conditions were achieved. The judge made serious adverse credibility findings and in doing so the judge was obliged to factor in the appellant’s vulnerability. The judge should consider the vulnerability, the extent of the vulnerability and the effect on the evidence. Any time there was a medical indication the judge should consider that. Judge skills were insufficient, and a specific obligation placed on the judge to consider these factors.
13. In relation to ground (ii) the credibility of the account was considered from [12] onwards and at [18]-[27] the judge made adverse credibility findings. The judge did not state that these findings were ‘potentially’ undermining but found they were definitive in being materially undermining. Only after considering delay did the judge address the documentation from [30] onwards. It was wrong in law to make adverse findings in isolation and then consider the documentary evidence in a compartmentalised manner.
14. Mr Malik addressed ground (iii) shortly and essentially relied on the written grounds. The judge had made inconsistent findings.
15. Mr Terrell in oral submissions repeated that read sensibly the grant was clearly a partial grant and the relevant authority relating to FtT procedure was Safi which made a distinction between the decision itself and the reasoning and where there was an ambiguity where it should be resolved in favour of the appellant. Here it was clear that the decision was a partial grant. The decision and the reasons were in absolute unison. Paragraph 6 of the grant made clear that permission was granted on ground (ii) only. Reading the grant as a whole it was clear and in accordance with Safi. This complied with rule 34 of the FtT Procedure Rules when stating that the grant was limited. EH referred to the Tribunal Procedure (Upper Tribunal) Rules 2008 not the FtT rules. The Upper Tribunal should adhere to procedural rigour.
16. That said, the grounds were unarguable. In relation to ground (i) the Joint Presidential Guidance Note sought to define vulnerability widely and left a discretionary element. AM (Afghanistan) was clear that a discretion was left to the judge. In that instance it was clear that the appellant had moderate learning difficulties, and it was not difficult to imagine, in that case, how someone’s evidence and credibility could be affected by their learning difficulty and why it was sensible to make reasonable adjustments. Depression was a spectrum disorder and here the judge had very limited information and guidance on how it affected the appellant. In this matter, any vulnerabilities were not brought to the attention of the judge, and the only evidence was in the form of a GP note appearing halfway through the bundle. We were referred to the discussion in SB (Ghana) at [54]-[64] particularly with reference to materiality. There was no information here as to how depression affected the appellant and would not go to the assessment of credibility. What was required in this instance was good judge craft and that was evident here. At [22] the judge recorded the appellant as someone intelligent and articulate.
17. In relation to ground (ii), on a fair reading, the judge was taking the matters in logical manner and his approach was not inconsistent with a duty to look at matters in the round. There were indicators throughout the findings to demonstrate that he had taken the evidence as a whole (for example [22]). The reasoning was balanced in that the judge did not accept all of the Secretary of State’s criticisms in her refusal letter and [30] and [31] showed the judge’s approach was considering the evidence in the round. The analysis was detailed but did not exhibit compartmentalising. The judge focussed on the failure to claim asylum in 2017 and that was fundamental. The judge was not making a conclusive decision on credibility at [27] rather he did not accept the evidence on that point. The assessment of the documentation was in accordance with Tanveer Ahmed [2002] UKIAT 00439 and the documents were considered in tandem with the other evidence. A judge needed to start somewhere.
18. As far as ground (iii) was concerned there was no contradiction at all.
19. Mr Malik responded that there was no answer to the rule 34(4) point, but evidence was not forthcoming in that regard.
Conclusions
20. The extension of the grant of permission to include grounds (i) and (iii) was robustly defended by Mr Terrell as detailed above. We agree that EH (PTA: limited grounds; Cart JR) Bangladesh [2021] UKUT 117 (IAC) applies, unlike Safi, to the Upper Tribunal procedure rules.
21. We find the limit to the grant by the FtT was plain on the face of the document and in the decision section which cited that permission was ‘partially granted’.
22. As held in Secretary of State for the Home Department v Rodriguez; Mandalia and Patel v SSHD [2014] EWCA Civ 2
‘In any event, if there is ambiguity arising from the language of the Reasons given then I think that such ambiguity is to be resolved in favour of the applicant: particularly where the opening part of the Order concerning the actual grant of permission was unqualified.’
23. Here, however, there was no ambiguity either in the decision itself or in the reasons section. Paragraph 6 of the reasons confirmed that permission was only granted partially and that was reflected in the decision itself as follows
‘6. Permission is granted on the second ground only.’
24. It was submitted by Mr Malik that there had been no compliance by the FtT with the requirements on sending out the grant of permission under rule 34 of the Tribunal Procedure (FtT Tribunal) (Immigration and Asylum chamber) Rules 2014 as follows:
(3) The Tribunal must send a record of its decision to the parties as soon as practicable.
(4) If the Tribunal refuses permission to appeal it must send with the record of its decision— (a) a statement of its reasons for such refusal; and (b) notification of the right to make an application to the Upper Tribunal for permission to appeal and the time within which, and the manner in which, such application must be made
25. The only document produced, however, was the grant of permission. This clearly identified that the grant was partial and obvious to any representative. Neither were we supplied with any documentation by the appellant to indicate that the notification of the right to make an application to the Upper Tribunal in the event of a refusal, had not been provided.
26. However, Mr Malik also made an application to amend the grounds, and we note from EH the headnote at (3) states:
(3) Rule 22(2)(b) has the complementary effect that any limitation on the grounds of appeal must be by direction and, as a direction, can be the subject of an application to amend, suspend or set aside that direction under rule 5(2) of the 2008 Rules.
27. We have applied the principles set out in Hysaj v SSHD [2014] EWCA Civ 1633 when considering whether to extend time for consideration and accordingly considered all the various grounds either with a view to permitting the amendment to the grounds and/ or determining all grounds on their merits. Although there was however no application for an extension of time to make the application for permission to amend, we do not take the point on the delay itself of the application or refuse merely on the basis of lateness of the application, owing to the point taken on notification by the Tribunal. We have concentrated on the circumstances of the application itself and to which we turn in detail.
28. In relation to ground (i) and whether the judge’s approach to the appellant was flawed, we note that in AM (Afghanistan) the Court of Appeal at [18] observed in that case that the FtT did not
‘properly consider the impact of the appellant's age, vulnerability and the evidence of a significant learning disability contained in the Sellwood report on the appellant's ability to participate effectively and fairly in the asylum process and the appeal.’ And further that ‘procedural fairness would have been provided had the tribunal had regard to the Guidance that already existed.’
29. At [27] when deliberating on procedural fairness the Court of Appeal also explained as follows
‘the tribunal and the parties are required so far as is practicable to ensure that an appellant is able to participate fully in the proceedings and that there is a flexibility and a wide range of specialist expertise which the tribunal can utilise to deal with a case fairly and justly’.
30. At [30] the Court of Appeal referred to the Joint Presidential Guidance Note and held that
‘Failure to follow them will most likely be a material error of law.’
31. AM (Afghanistan) does not confirm that in every case where the judge fails to reference or follow the Joint Presidential Guidance Note that it will be an error of law. At [32] it was confirmed that ‘the primary responsibility for identifying vulnerabilities must rest with the appellant’s representatives and that they should draw the tribunal’s attention to the PD and Guidance’ and should make submissions thereon.
32. That emphasis was given, when determining credibility, in AM (Afghanistan) to the key importance applying the Joint Presidential Guidance Note in that particular case does not exclude a fact sensitive approach in each case.
33. By contrast, in this appeal, the appellant’s representative before the FtT made no reference to the appellant being a vulnerable witness and attention was not drawn to any medical evidence. Further there was no detailed medical report and no cognitive assessment. In the evidence before the FtT the witness statement of the appellant signed on 26th February 2024 made no mention of any mental health issues, and the bundle included a letter from University of Leicester Hospital dated 15th February 2024 confirming that the appellant worked as a full time, health care assistant. The appellant in a witness statement dated November 2024 stated that his depression stemmed from his possible return to Bangladesh and that he was still in full time work.
34. The only medical evidence we could identify in the bundle was an NHS letter dated 21st October 2024 stating simply that the appellant has ‘the following medical problems ‘Hypertension, Hypercholesterolemia and Depression’ and ‘he is on following medications Atorvastatin mirtazipine (sic)’.
35. There was no assessment of the severity of these conditions, no assessment of the effect of these conditions and no assessment of the appellant’s fitness to give evidence. It is not for the judge to act as a medical practitioner to rule on the appellant’s fitness in this way or make a detailed cognitive assessment. There was no indication that the appellant had any special cognitive educational needs.
36. Although the Joint Presidential Guidance Note indicates that the judge also has responsibility for identifying those with vulnerabilities, we conclude that the omission by the judge of a direct reference to the vulnerabilities in this instance is not a material error of law.
37. First, the medical evidence was sparse and did not explain any deficiencies the appellant may have in giving oral evidence, and secondly the appellant had failed to mention the relevant threat to his life if he returned to Bangladesh in his appeal in 2017 and there was no indication of any health issues then. The judge had ample opportunity in written representations prior to the case to explain in detail his difficulties in 2017 and at the time.
38. Notwithstanding, if any assessment was required, the judge noted at [22] that the appellant was listened to ‘very carefully’ and that ‘he came across as an intelligent and articulate young man.’ Additionally, the judge did make adjustments and recorded at [26]
‘to avoid any misunderstanding I gave the appellant a further opportunity after re-examination and asked him to explain in his own words why he had not mentioned at his previous appeal hearing all of his problems emanating from the AL and the risk they posed to his life if he returned to Bangladesh.’
39. The judge from [26] to [27] concluded that
‘26…..In reply to my question, the appellant stated that he was new in this country (this is not correct because the appellant had been in the United Kingdom for about eight years at the time of his 2017 appeal hearing) and that he did not know that in a human rights appeal that he was able to mention political asylum matters. It was his understanding that one could only mention political asylum matters in a political asylum appeal and as [h]is 2017 appeal was not a political asylum appeal, he did not mention such matters.
27. In summary, I do not believe the appellant and find that there was no good reason why he omitted to mention in his 2017 all of the threats of violence and intimidation that he says he was subjected to by the AL between 2008 right up until his appeal hearing in 2017 and which resulted in him having initially to flee the country and then become fearful of returning because the AL continue to be in power.
40. This demonstrated that the judge made a conscious adjustment to give the appellant time to give a further explanation as to his failure to put his claim in 2017. The judge in practice did make practical adjustments. The focus was on the appellant’s failure to advance a claim in 2017. There is/was no medical/mental health condition presented at that time and it is not for the judge to produce a more cogent explanation as to the failure to explain the absence of a relevant claim in 2017 and it was unarguably open to the judge to reject the appellant’s fundamentally flawed explanation (particularly bearing in mind the appellant was evidently legally represented in 2017).
41. As noted in the grant of permission and the reason for refusal was that there were prior to the hearing
‘numerous occasions on which the Appellant had the opportunity to explain himself at interview, in written evidence (not given whilst under the pressure that can come with oral evidence at a hearing)’.
We agree.
42. As held in SB (Ghana) at [63]
’63. On the contrary, Mr Allison could offer no explanation of how the fact that the appellant has been on antidepressants is capable of having a positive bearing on the credibility of his account, by reference to his contradictory statements ranging over a considerable period of time. As the Vice President observed at the hearing, there is nothing to show that the appellant’s answers at interview were any more or less to be taken at face value on this account than were his subsequent written submissions, including his witness statement of May 2019.
64. In any event, certain fundamental problems with the appellant’s account cannot rationally be ascribed to his depression.
43. The failure to refer to the Joint Presidential Guidance Note in the decision by the judge is not necessarily determinative of the decision being flawed and bearing in mind the circumstances overall, we find no material error of law in relation to ground (i) even if it had been granted permission which it was not.
44. Ground (ii) We were not persuaded that the judge compartmentalised the evidence and findings of fact for the reasons given below.
45. S v SSHD [2006] EWCA Civ 1153 held at [32] as follows:
32. I would also refer to the AIT determination of 25 November 2005 in HH Medical Evidence Effective Mibanga Ethiopia [2005] UKAIT 00164. The tribunal there said:
"20. In the present case it is manifest that the immigration judge has arrived at his conclusions as to credibility by looking at the evidence in the round. At paragraph 16 of the determination he reminded himself that 'I must look at the case in the round in light of all the relevant circumstances'. At paragraph 20 the immigration judge confirmed that he had 'considered the appellant's evidence in the round together with the background evidence and her interview record'. Plainly the medical report was part of the appellant's evidence.
21. The tribunal considers that there is a danger of Mibanga being misunderstood. Judgments in that case are not intended to place judicial fact finders in a form of forensic straightjacket. In particular the Court of Appeal is not to be regarded as laying down any rule of law as to the order in which judicial fact finders are to approach the evidential materials before them. To take Wilson J's cake analogy, all its ingredients cannot be thrown together into the bowl simultaneously. One has to start somewhere. There is nothing illogical about the process by which the immigration judge in the present case chose to approach his analytical task."
I would approve those comments and emphasise how close the present case is to the circumstances of HH as distinct from those of Mibanga.’
33. From a careful reading of the decision, we find the judge considered each aspect of the appellant’s position carefully, but a judge has to start somewhere in order to ensure that all the various points have been considered. A fundamental aspect of this assessment was the claim which had previously been decided in 2017, and the judge was obliged in accordance with Devaseelan v Secretary of State for the Home Department [2002] UKAIT 702 to use the 2017 decision as the starting point. The judge noted at [16] that previously ‘an adverse inference was drawn from the fact that the appellant had not made a protection claim, given the factual matrix of his case.’
34. There is every indication that the judge considered all the relevant evidence in the round. The judge at [18] stated that he took into account the appellant’s ‘statements, AIR and oral evidence’ and the basis of the appellant’s claim, not least that ‘in order to save his life [the appellant] chose the option [in 2009] of coming to the UK to study’. Further the appellant’s account was noted ‘that police and army officials have continued to visit the family home since he fled in 2009. In these visits, they have continued to enquire about him and have continued to threaten him and his family’. At [20] the judge refers to the fact that the appellant accepted there was only limited documentary evidence and refers to that and to the photographs and specifically states at [21] that he has taken into account the documentary evidence.
35. It is noteworthy that at [22] that the judge recorded that he did not believe the appellant ‘for the reasons given below’ and addresses each of the points in a logical manner. Each point is then headed in italics which demonstrates that the judge had considered all of the points individually and then in the round and at [30] specifically refers to a ‘global assessment of credibility’. None of this suggests that the judge has failed to assess the evidence in the round.
36. The judge clearly carefully considered the appellant’s explanation as to his failure to claim asylum in 2017 (bearing in mind the appellant maintained he was threatened from 2009 and prior to entering the UK) as can be seen from [26] where the judge states ‘in order to avoid any misunderstanding, I gave the appellant a further opportunity after re-examination and asked him to explain in his own words why he had not mentioned at his previous appeal all of his problems emanating from the AL and the risk they pose to his life if he returned to Bangladesh’. Simply the judge did not accept that explanation for good reasons and as we have observed earlier in this decision there was no indication of any health issues in 2017.
37. At [18]-[27], therefore, the judge considered credibility on the failure to claim asylum in 2017 and at [27] made a conclusion on this particular aspect of the claim. The judge at [27] stated that this ‘materially undermined his credibility as a witness of truth’. That was open to the judge, and he would have been criticised had he not made a relevant and clear finding in this respect. That each point was taken sequentially does not mean that the judge did not assess credibility overall. The conclusion at this point was that this ‘materially undermines his credibility’ and not that the judge made a definitive conclusion on his overall credibility at [27].
38. The judge then at [28] considered the delay in the claim for asylum. This was another point which was headed by italics and thus was part of the overall reasoning as indicated formerly at [22] and simply addressed sequentially at [28]-[29]. As the judge noted, it was pointed out to the appellant that his study and leave ended as long ago as 2012. In effect there was no explanation as to why the appellant would delay until 2017 if he was in danger on return as early as 2009. Again, this was an individual point which the judge addressed but which was factored into the round overall.
39. Albeit the judge did not use the word ‘potentially’ in relation to an adverse credibility finding, it is not evident that the judge made a definitive conclusion as to credibility until his concluding remarks.
40. The judge also considered the documentary evidence at [30]-[31].
41. The documentary evidence was addressed and included in the global assessment; at [30] the judge states ‘I have taken into account all of the documentary evidence relied upon in my global assessment of credibility’. At this point the judge also, self directs himself appropriately and in line with Tanveer Ahmed [2002] UKIAT 00439. The judge did not merely reject the documentary evidence because of his adverse credibility findings already made but stated ‘I also have other concerns’ and gave an example that the appellant had dated the photographs himself, and it was not clear whether these were even photographs of the appellant at political or social events.
42. The judge again reminds himself at [31] that he was ‘looking at the evidence in the round’ and concludes the appellant had fabricated the account.
43. The judge also states at [32] that he took into account the adverse credibility findings as relevant to his assessment on the next issue of dispute that being the sur place activity. We conclude that it was open to the judge to make his findings in relation to the fear of Bangladesh prior to the findings on the sur place issue which is a distinct issue. Again, however, in relation to the sur place matter it was found the appellant had himself dated the photographs.
44. Nevertheless, the judge does assess the sur place activity in the round and at [36] found
‘Taken in the round, what I am able to say in favour of the appellant is that there is some reliable evidence of him engaging in sur place activities from 2018 onwards’ and
45. The judge identifies the photographs and documents which demonstrated active engagement since 2018. The judge goes on to state at [37]
‘Against the backdrop of the adverse credibility findings made above I find that the reason why the appellant has been able to accrue much greater evidence of sur place activities from 2018 onwards is because after the dismissal of his human rights appeal he made a concerted effort to pursue a manufactured political asylum application.’
We find that it was open to the judge have reviewed the evidence in the round to make that assessment.
46. Notwithstanding, the judge was alive to the issue that sur place activity can pose a risk despite genuine political views not being held. The expert report was addressed at the close of the findings but much of this report as the judge stated did not ‘actually refer to the issues of dispute’ and focussed on the lingering power of the AL which had in fact already been ousted from power by the date of the hearing (August 2024). Moreover, the judge weighed in the balance the sur place activities of the appellant and did not accept that the appellant had the profile that would place him at risk [43]. Again, the judge states that ‘taken in the round, I place little weight upon the external evidence and country information report relied upon’.
47. The judge then at [44]– [46] states that
‘in conclusion, I am not persuaded that the evidential burden has been discharged, even to the lower standard’ and that ‘his political activism since 2018 (which I found is not born out of genuine political conviction) has come to the attention of the AL in Bangladesh. On the evidence before me, I find that the appellant has engaged in limited and low level sur place activities and that he does not have a profile that would place him at risk of adverse attention from the AL if returned to Bangladesh.’
48. We find that the judge did weigh the evidence in the round and did not pre-empt a credibility assessment nor fall foul of Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367. The judge addressed the relevant evidence in an orderly and logical manner and ultimately in the round before making his final conclusions on the claim.
49. In terms of ground (iii) we find no contradiction at all. The judge clearly found that the activity which was undertaken was designed to manufacture a claim and being insincere would not expose the appellant to risk on return as he would not continue to engage in the said activity. Again, this ground was not given permission and even if it were, it would fail.
Notice of Decision
The decision of the FtT will stand and the appellant’s appeal remains dismissed.

Helen Rimington
Judge of the Upper Tribunal Rimington
Immigration and Asylum Chamber

Signed 7th April 2025