Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000907

First-tier Tribunal No: PA/59822/2023
LP/08044/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 24 June 2025

Before

UPPER TRIBUNAL JUDGE HANSON

Between

SD
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr G Symes, instructed by Stonebridge Legal Solutions.
For the Respondent: Ms Z Young, a Senior Home Office Presenting Officer.

Heard at Phoenix House (Bradford) on 13 June 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 with permission a decision of a judge of the First-tier Tribunal (‘the Judge’), promulgated following a hearing at Newcastle on 29 November 2024, who dismissed his appeal.
2. The Appellant is a citizen of Bangladesh born on 10 August 1984 who entered the UK legally on 30 January 2018, with a student visa valid until 26 July 2018.
3. The Respondent served the Appellant with notice as an illegal entrant as a result of verbal deception on 24 July 2018. The Appellant claimed asylum on 24 July 2018 which was refused by the Secretary of State and his appeal against the refusal dismissed at all levels, leading to him becoming appeal rights exhausted on 21 June 2019.
4. The Judge notes the Appellant was not removed from the United Kingdom and came to the Respondent’s notice when he was encountered working illegally on 15 September 2022. On 24 October 2022 he made a further application for asylum on the basis of risk if returned to Bangladesh as a homosexual man, a claim rejected by the Secretary of State in the refusal dated 21 October 2023.
5. Having considered the documentary and oral evidence the Judge sets out his conclusions in relation to the Appellant’s claim regarding his sexual identity from [57] of the decision under challenge, where the Judge writes:
57. I take into account all the above matters. I take into account that the standard of proof in an appeal involving humanitarian protection and under Articles 2 and 3 ECHR is a low one. The standard of proof is different for a refugee claim.
58. There are matters which cast doubt upon the appellant’s credibility. His failure to bring an asylum claim based on homosexuality earlier, his previous claim to be in a heterosexual relationship, and his failure to make a claim on the basis of his homosexuality until after several adverse immigration decisions all damage his credibility.
59. The interpretation I give of the fact that the witnesses Mr MH and Mr SH had stated that they had only met the appellant in 2019 until confronted with undeniable evidence that this was not true, is that they were seeking to conceal the fact that they were close associates of him.
60. Mr H, Mr SH, and Mr MH may be homosexual men. The respondent has accepted that they are. That does not mean that the appellant is. These witnesses can at best only say that the appellant has told them that he is a homosexual man and said he had a partner.
61. I put little weight on the evidence of the appellant’s involvement with Gay Pride events. Someone making an asylum claim on the basis of his homosexuality would be likely to involve himself in such events.
62. I put little weight on the Facebook entries or the alleged threats. The appellant has not been prepared to provide full access to his Facebook account. Such screenshots as are provided could be easily fabricated.
63. One interpretation of the appellant’s case is that having failed in his first asylum claim in 2019, and his appeal rights being exhausted on 21 June 2019, he had begun in July 2019 to put together a case made upon his homosexuality. Several of his colleagues had had success with this ground.
64. Taking into account all the evidence I find that the appellant is not a homosexual man. I find that he has fabricated this to claim asylum. He was aware that several of his close associates had been granted asylum on the basis of their homosexuality and he and SS had decided to do the same.
65. The appellant is not a homosexual man. He is not at risk on that basis in Bangladesh. His appeal, as a refugee, on the grounds of humanitarian protection, and under Articles 2 and 3 ECHR, is dismissed on each of these grounds.
66. Counsel accepted at the outset that if the appellant did not succeed in his protection claim then he could not succeed on the basis of his private or family life inside or outside of the Immigration Rules. His appeal in respect of these grounds is also dismissed.
6. Permission to appeal to the Upper Tribunal was refused by another judge the First-tier Tribunal but granted, in part, by the Upper Tribunal on 4 April 2025, the operative part of the grant being in the following terms:
3. Ground 1 is misconceived. The appellant’s original asylum claim was made in 2018. It was refused later that year and an appeal dismissed in July 2019. The appeal before [the Judge] arose from the respondent’s acceptance that further submissions made in October 2022 constituted a fresh asylum claim which attracted a right of appeal. Therefore, the judge’s direction at paragraph 8 was unarguably correct because the provisions of section 32 of NABA 2022 applied.
4. Ground 2 is unarguable. Whilst the judge did not expressly refer to Devaseelan, it is clear enough that the underlying principles were applied in substance. The judge was well-aware that the claimed sexuality had not been put forward to the previous judge and so this was not a case of re-arguing a protection claim on the same basis as before. Further, the judge was fully entitled to take account of the fact that the appellant had been disbelieved previously, although that was in no way decisive of credibility in the instant case. In any event, it is quite clear that the adverse credibility findings were predicated almost entirely on the basis of the evidence put forward to the judge and not with reference to the previous appeal. 3
5. Paragraph 7 of ground 3 is unarguable. The grounds appear to overlook the fact that the appellant remained unlawfully in this country after his 2019 appeal was finally determined. The appellant has self-evidently not spent the entirety of his time in United Kingdom on a lawful basis. The judge was unarguably entitled to take this into account, albeit that it was only one matter amongst a number of others.
6. The remainder of ground 3 relates to the judge’s approach to the evidence of the appellant’s witnesses. Having regard to paragraph 7-12 of the grounds, there are arguable points arising in relation to the judge’s reasoning and certain matters which might not have been adequately addressed.
7. I grant permission on this limited basis only.
7. There is no Rule 24 reply from the Secretary of State.
Discussion and analysis
8. For the sake of completeness, the parts of the grounds on which permission to appeal has been granted read:
GROUND 3
7. The FTTJ goes on to deal with the overall credibility of the account of the appellant and deal with additional matters he states impact credibility. With regard to the statement at [31], that the appellant has a poor immigration record which has involved periods of illegality, it is unclear what evidence the FTTJ is referring to in coming to this conclusion and what impact the FTTJ suggests that this issue had had in terms of credibility. The appellant came to the UK as student in 2013 to 2015 and studied for a HND in Marine Engineering. He came to the UK legally and returned at the end of his period of leave to remain. He came again in 2018 legally as a student and studied and whilst the SSHD suggested he had worked illegally in the UK this was strongly disputed by the appellant in his evidence and no further evidence was submitted by the SSHD to substantiate the matter. He was issued with a notice of liability to detention in July 2018 before his leave to remain had expired and he claimed asylum on the same day and so it is hard to see how the FTTJ could find that he had “a poor immigration record which has involved periods of illegality” on the evidence before the court. It is contended that the FTTJ has taken into account errors of fact and immaterial matters when coming to conclusions on credibility.
8. It is contended that the FTTJ materially errs in his assessment of the witness evidence. He suggests that Mr H, SH and Mr MH who are accepted homosexual males by the SSHD, can at best only say that the appellant has told them he is a homosexual man and that he had a partner [60]. That was not their evidence. They confirmed that they attended the informal wedding ceremony for the appellant and his partner, they met the appellant in a LGBTQ and Transgender club in Newcastle and also met him and his partner there and that they had all participated frequently in LGBTQ and Pride events together. They were also aware that the appellant identifies himself as a gay man within the LGBTQ community. It is a complete and unfair characterisation of their evidence to suggest that they can at best only say what they have been told, when they have clearly all met the appellant and his partner personally and witnessed the appellant and his partner being active in the LGBTQ community which would allow them all to form a view about their sexuality and the relationship and to take a view as to the genuineness of the same.
9. The FTTJ further errs in his consideration of the evidence of Mr SH and Mr MH. He refers at paragraph 59 to the witnesses attempting to conceal the fact that they were close associates of the appellant and doing so only after being confronted with undeniable evidence that this was not true. The FTTJ makes no reference to what he considers the “undeniable evidence” to be and what makes it “undeniable” at [59]. It can only be assumed that the FTTJ is referring to the visa applications that were lodged on the morning of the hearing by the SSHD. He refers to the explanations given by Mr SH, Mr MH and the appellant about the circumstances of how and when they first met and how those explanations impacted on the “undeniable evidence” and the conclusions he drew at [42]. He is critical of corrections not being made until the morning of the hearing, but fails to take into account that that was when they all first became aware of the fact that they all had the same or similar addresses on their application forms. They had never seen each other’s applications before and it was their evidence that they had never lived together and that a holding address was given by the college on their applications and over 50 students had all given the same or similar addresses, as accommodation was not to be specifically allocated until arrival in the UK. There is no mention of this evidence in the FTTJ’s evaluation or any reference to any submissions made on the point on behalf of the appellant that the SSHD had clearly not rejected any of the visa applications on the basis 10 of numerous student visa applicants all providing the same accommodation address. It is of concern that he describes the visa evidence as undeniable when it was clearly denied and challenged and submissions made on the point and explained clearly by all the witnesses who gave a consistent account.
10. Further to the above, even had the FTTJ not erred in his assessment of the evidence of Mr SH and Mr MH, the evidence of Mr H did not suffer from the same deficiencies as he had confirmed that he knew the appellant since 2014 and so it could not be said that he had attempted to conceal that he was a close associate of the appellant and therefore his evidence was of support to the appellant and the FTTJ gave no alternative reasons for rejecting it.
11. The FTTJ suggests that as the appellant was aware that several of his friends had claimed asylum due to sexuality and had been successful he himself has decided to do the same and fabricated a claim [64]. The reasoning of the FTTJ is flawed based on the evidence before him. The evidence of all of the witnesses was that they were granted refugee status in July and October 2018 (and their permits appeared in the bundle) which was prior to the appellants refusal of asylum and his first appeal hearing before the FTTJ Henderson. If the reasoning of the FTTJ is correct and the appellant had fabricated his claim on the basis of knowing that his friends had been successful on the same basis, he would have arguably raised his sexuality claim within his initial asylum claim and at his appeal if the reasoning is correct.
12. The FTTJ materially errs in failing entirely to consider the evidence of the appellants partner in relation to the issue of sexuality. He is someone who gave direct evidence of the relationship he is involved in with the appellant and who has direct knowledge of the appellants sexuality. The FTTJ simply refers to the evidence of SS at paragraph 35 and 36 but makes no findings on that evidence. He considers the issue of the weight he gives to all of the evidence at paragraphs 57 to 65 and at no point does he refer to the evidence of SS and the weight he gives to that evidence. In failing to deal with the evidence from SS and make findings on that evidence he materially errs.
9. Whilst Ms Young referred to some findings made by the Judge which are not disputed, the issue is that there was evidence from a person who claimed to be the Appellant’s partner, who had direct knowledge and gave direct evidence as to the relationship he is involved in with the Appellant, and who therefore was qualified to comment upon in relation if credible, in relation to which a reader of the determination is unable to understand what the Judge made of that evidence. At no point does the Judge refer to the evidence of that witness or indicate what weight was given to that evidence, supported by adequate reasons. I find that to be material omission by the Judge.
10. The Appellant is entitled to have all the evidence not only considered with the required degree of anxious scrutiny but also factored into the decision-making process. I find the omission by the Judge raises an issue of fairness in the manner in which the evidence was considered and findings made. I find that the issue of fairness affects the determination as a whole as it appears a core part of the evidence was not properly factored into the decision-making process.
11. It is likely on the next occasion that there will have to be detailed cross-examination of the nature of the relationship to test the credibility of the claims being made, followed by very extensive fact-finding incorporating the conclusions reached by the judge on the next occasion in relation to this witness’s evidence, with those findings that may otherwise be available on the basis of the evidence as a whole.
12. Having considered the joint Presidential guidance relating to remittals of appeals, and the Upper Tribunal case law in relation to the same, whilst accepting that the default position would be that an appeal should remain within the Upper Tribunal if at all possible, I find in light of the extent of the failure to consider a material aspect of the evidence that it is appropriate in the circumstances for the appeal to be remitted to the First-tier Tribunal to be heard afresh by a different judge.
Notice of Decision
13. The First-tier Tribunal has been shown to have materially erred in law. The determination is set aside with no preserved findings.
14. The appeal shall be remitted to the First-tier Tribunal (IAC) sitting at Newcastle to be determined by a different judge, de novo.

C J Hanson

Judge of the Upper Tribunal
Immigration and Asylum Chamber

20 June 2025