Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000763

First-tier Tribunal No: HU/64042/2023
LP/07468/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 19th of June 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE NEILSON

Between

AL
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Selvakumaran of Counsel
For the Respondent: Mr Tufan, Home Office Presenting Officer

Heard at Field House on 16 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. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. The appellant appeals with permission against the decision of the First-Tier Tribunal (“FtT”) given on 5 December 2024 to dismiss the appellant’s appeal against the refusal of her protection claim.
2. The appeal came before the Upper Tribunal at an error of law hearing on 16 April 2025. At the hearing I heard submissions from the parties and reserved my decision. For the reasons set out below, I find that there was an error of law in the decision of the First-tier Tribunal (“FtT”) and set the decision aside.
3. The First-Tier Tribunal made an anonymity order in this appeal, and we have considered whether it is appropriate for that order to continue pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (as amended). Having taken into account Guidance Note 2022 No.2: Anonymity Orders and Hearings in Private, we are satisfied that it is appropriate to make such an order because the appellant has made an application for international protection and we consider that the UK’s obligations towards applicants for international protection and the need to protect the confidentiality of the asylum process outweigh the public interest in open justice at this stage in the proceedings
4. The appellant is a national of Bangladesh and is 54 years of age. The appellant was married to Mr MD Shahidur Rahman from 1982 to 5 June 2022. She had been subjected to domestic abuse by her former husband in the 5 to 7 years leading up to her divorce. The grounds for this abuse were that her former husband wanted to take another wife and divorce the appellant. The appellant and her former husband have three adult children – all of whom are in the UK. The appellant arrived in the UK as a visitor on 3 January 2022 and made an application for asylum on 27 May 2022.
5. The appellant’s application for asylum was on the basis that feared persecution by her former husband if she returned to Bangladesh. In particular the appellant claimed that she had intended to return to Bangladesh, but whilst in the UK, she had continued to receive abuse and threats centred around his wish for a divorce and to re-marry.
6. The respondent accepted that the appellant was a victim of domestic abuse by her former husband.
7. The respondent refused the appellant’s application on 23 November 2023 (“the Refusal Decision”). The basis for refusal was that it was not accepted she had a well-founded fear of persecution because, by the appellant's own admission in the course of her asylum interview, she had stated her former husband had moved on with his life and that she had received no further threat or adverse attention following their divorce and her husband remarrying. The respondent did not accept the appellant would be at risk upon return to Bangladesh and, whilst accepting she is the victim of domestic violence and is a divorcee, it was not considered that her fear of return to Bangladesh was well founded.
8. The appellant appealed that decision to the FtT.
The FtT decision
9. The issue that the FtT had to determine was whether the appellant faced a risk of persecution from her husband and, if so, does she have a well-founded fear of persecution upon return to Bangladesh?
10. The FtT determined that the evidence did not disclose that her former husband posed any threat towards her and concluded that the appellant had not established that she had a well-founded fear of persecution in Bangladesh based upon her past history of being the victim of domestic violence. The FtT accordingly dismissed her protection appeal.
11. In its determination the FtT placed weight upon the terms of a divorce certificate produced by the appellant that stated that her divorce from her former husband was “contracted” on 02/02/2022.
12. The FtT also dismissed the appellant’s appeal on humanitarian and human rights grounds. That aspect of the FtT decision is not challenged.
Grounds of Appeal and Submissions
13. The appellant appeals on two grounds:-
(i) The determination fails to give sufficient reasons for making adverse credibility findings in relation to the divorce certificate and is procedurally unfair.
(ii) The FtT erred in seeking to go behind the respondent’s concession and to undermine the appellants domestic violence claim.
14. Ms Selvakumaran submitted that in respect of the first ground of appeal that the FtT in paragraph 32 of the determination drew adverse conclusions in relation to the credibility of the appellant based upon an interpretation that the FtT gave to the divorce certificate that was produced by the appellant. That divorce certificate states on the face of it that the divorce was “contracted” on 02/02/2022. From that the FtT have concluded that the divorce proceedings were already settled and there was no issue of consent being required from that point in time. The FtT (at paragraph 32) considered that this fundamentally undermined:-
“every aspect of the Appellant’s claim that the reason why she made the application for protection, shortly before the expiry of her visit visa in June 2022, was because she was afraid of returning to Bangladesh due to the threats made towards her by her husband because he still wanted her to consent to this divorce. The fact is, based upon the Appellant's own documentary evidence that the divorce was in progress at the time she left Bangladgesh in January 2022 and therefore it is completely false to suggest her husband was contacting her with a view to demanding that she consent to the divorce.”
In Ms Selvakumaran submission there was a failure to put this key point to the appellant. There were no questions asked in cross examination by the respondent or by the Tribunal Judge regarding the divorce certificate, the dates on it or what is meant by “contracted”. Had questions been asked the appellant may have been able to answer them in a manner that would not have resulted in the FtT making adverse credibility findings against her and essentially dismissing the appeal for that reason.
15. In relation to the second ground of appeal Ms Selvakumaran submitted that the FtT has sought to go behind the respondent’s concession that the appellant had been a victim of domestic violence. In particular she highlighted that the FtT (at paragraph 24 of the determination) stated that it was noteworthy that the appellant’s adult children had not been subject to any domestic violence. And at paragraph 33 the FtT comment that none of her adult children have supported her claim of domestic violence. In her submission this undermined the concession that the appellant had been subject to domestic violence and this had then been used by the FtT to support the adverse credibility findings in relation to future fear. Ms Selvakumaran also referenced Paragraph 339K of the Immigration Rules that provides:-
“the fact that a person has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, will be regarded as a serious indication of the person's well founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider such persecution or serious harm will not be repeated.”
16. For the respondent Mr Tufin relied upon the Rule 24 response. In addition, on the first ground of appeal he submitted that the issue of consent to the divorce could not have been in issue from February 2022 and he could not see what point could have been put to the appellant in relation to that. In relation to the second ground of appeal the respondent does not accept that the FtT did go behind the concession but that even if they did it was not material to the outcome.
Discussion and Conclusions
First Ground of Appeal
17. The divorce certificate was a document that was produced by the appellant. I accept that there would not appear to have been any questioning or cross examination of the appellant on the terms of the divorce certificate.
18. It is trite that hearings before the FtT must be fair. The principle that allegations of dishonesty or untruthfulness must be put to a witness, and the witness be given an opportunity to answer the allegation, is long-established: cf Browne v Dunn (1893) 6 R 67 (HL), at 70-71. The principle has been recently reaffirmed by the Supreme Court in TUI UK Ltd v Griffiths [2023] UKSC 48 and by the Court of Appeal in Abdi and others v Entry Clearance Officer [2023] EWCA Civ 1455, at 33:-
“The recent decision of the Supreme Court in TUI UK Ltd v Griffiths [2023] UKSC 48 re-emphasises the principle that fairness generally requires that if the evidence of a witness is to be rejected, it should be challenged at the hearing so as to give them an opportunity to address the challenge; and that that is a matter of fairness to the witness as well as fairness to the parties, and necessary for the integrity of the court process in enabling the tribunal to reach a sound conclusion: see especially at [42]-[43], [55], and [70].”.
19. The FtT themselves identify at paragraph 32 of the determination that the divorce certificate “fundamentally undermines every aspect of the Appellant’s claim that the reason why she made the application for protection, shortly before the expiry of her visit visa in June 2022, was because she was afraid of returning to Bangladesh due to the threats made towards her by her husband because he still wanted her to consent to this divorce”. Accordingly, the FtT themselves recognise that the appellant’s position was that the reason she applied for protection was because of the threats from her husband because he wanted her consent to the divorce. I do consider that if the FtT are going to determine that her consent was no longer required then that is something which should have been put to the appellant. Following Adbi her evidence should have been challenged on that point. I do find that it is a procedural error for the FtT to have made the finding that they do at paragraph 32 without putting that to the appellant. There may or may not be an explanation in relation to the divorce certificate – does “contracted on 02/02/2022” mean that she had consented by that date? That might be one interpretation but in my view it is not beyond doubt that it might mean something else. Given that it is a challenge to whether the appellant is being truthful I do consider it falls within what was said in Adbi above.
20. However, even if there was a procedural irregularity in not putting the point to the appellant I do need to then consider whether that amounts to an error in law. In R (on the application of Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 the Court of Appeal categorized a number of different errors in law – including “committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings.” Whilst I consider that there has been a procedural irregularity I need to go on and consider whether that made a material difference to the outcome or the fairness of the proceedings.
21. It is clear from the determination that the appellant herself accepted that she had not been contacted by her former husband since around June 2022 (see paragraphs 17 and 27 of the determination). The appellant’ voluntary admission that where all of her children are now in the UK and she has two brothers here, that it would be preferential for her to remain with them rather than return to Bangladesh was also a material factor in the final decision by the FtT (see paragraph 37 of the determination). These are both factors that are not impacted by the view taken on the divorce certificate. However, I do think that the FtT have drawn an adverse inference with regard to the credibility of the appellant in light of the contents of the divorce certificate. The FtT explicitly state at paragraph 32 of the determination that the contents of the divorce certificate “casts considerable doubt upon the veracity and truthfulness of the Appellants evidence…” and further they go on to find that “this fundamentally undermines every aspect of the Appellant’s claim..”. The divorce certificate would appear to be one of the factors take into account in the final assessment at paragraphs 37 and 38 of the determination.
22. In the circumstances I consider that the procedural failure to put the divorce certificate contents to the appellant and to draw adverse findings from that divorce certificate has potentially materially influenced the final determination. As such I consider that there is a material error of law in this regard.
Second Ground of Appeal
23. Did the FtT go behind the concession that the appellant was a victim of domestic violence? If so what was the consequence of that?
24. It is not disputed that the respondent did concede the point. In the Refusal Decision the respondent under “Material facts I accept” clearly states “Victim of domestic abuse”. The FtT at paragraph 13 and paragraph 16 of the determination note that concession (although it is referenced there as “domestic violence”). At paragraph 22 of the determination the FtT state “at the outset of my findings, I acknowledge the respondent accepts the Appellant has provided evidence that in the past she has been the victim of domestic violence at the hands of her husband. This is clearly not in dispute.”
25. Whilst the FtT have clearly set out that the appellant’s history as a victim of domestic violence is not in dispute it is curious that they then go on to state at paragraph 33 of the determination that none of her children have given any evidence to “corroborate” the appellants claim that she has suffered domestic violence at the hands of their father. Corroboration would of course not be required if the FtT truly accepted that she was the victim of domestic violence. At paragraph 34 of the determination the FtT go on to state that they find it relevant that none of her children have come forward in any way to support her claim and they go on:-
“I find the absence of such evidence casts considerable doubt upon the Appellant’s claim that even if she has suffered problems with her husband in the past, that there is any reasonable likelihood that she would be at risk of harm from her husband upon her return to Bangladesh.”
I appreciate that there may be a distinction to be drawn between assessing the future risk and looking at the past conduct but in the approach to the evidence set out by the FtT at paragraphs 33 and 34 of the determination it does appear that the failure to “corroborate” the past conduct and the doubt placed upon the appellant’s claim has influenced the FtT’s assessment of credibility in relation to the issue of future risk. In taking that approach I do consider that the FtT have gone behind the concession that the appellant was a victim of domestic violence. I accept that there has been an error of law in this regard.
Conclusion
26. In relation to both grounds of appeal I consider that there has been an error of law and that that has had a material impact upon the credibility assessment of the appellant and thus has potentially influenced the decision to refuse the appeal on protection grounds. In the circumstances I consider that the appropriate course is to set aside the decision on the protection grounds and remit the case to the FtT to be heard anew by a different judge with the findings in relation to Article 8 preserved.
Notice of Decision
The decision of the FtT involved the making of a material error on a point of law and that decision on the protection grounds is hereby set aside. The appeal is remitted to the FtT to be reheard anew in relation to the protection claim, by a different judge, with the findings at paragraphs 41 to 46 preserved.

S NEILSON
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

12.06.25