Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000918

First-tier Tribunal: PA/58813/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

6th June 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

MR
(ANONYMITY ORDER MADe)
Appellant
v

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Rahman, Internations Legal LLP
For the Respondent: Ms Clewley, Senior Home Office Presenting Officer

Heard at Field House on 25 April 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, [the appellant] (and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) 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 (and/or other person). Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. The Appellant is a national of Bangladesh, born on 9.9.94. In March 2018 he states that he fled to Qatar and in September 2018 an arrest warrant was issued against him and his family. The Appellant states that in 2022 his father and two uncles were arrested and his family were evicted from their home on 1 November 2022. The Appellant arrived in the UK on 23 January 2023 and made a protection claim in September of that year, on the basis that he has a fear of persecution arising from a land dispute. He also claimed to have been a member of the BJCD student organisation affiliated with the BJP and that his neighbours, with whom he is involved in the land dispute, are members of the Awami League and threatened him and his family. The Appellant joined the UK branch of BNP and attended several protests. On 18 March 2024 his protection claim was refused. On 8 August 2024 a new caretaker government came into power in Bangladesh. The Appellant’s appeal hearing took place on 20 December 2024 and on 23 December 2024 a decision and reasons was issued dismissing his appeal. On 4 January 2025 the Appellant made an application for permission to appeal to the Upper Tribunal and in a decision dated 25 February 2025, permission to appeal was granted by First tier Tribunal Judge Tozzi.

2. The grounds in support of the application for permission to appeal assert:

2.1. Ground 1: the judge failed to make clear and unambiguous findings with clear and adequate reasons on the material evidence; failed to consider the Appellant’s sur place activity and failed to apply Karanakaran [2000] EWCA Civ 11. It was asserted at [5] that the judge failed to follow the CPIN: Actors of Protection November 2023 (law enforcement agencies materially work against the opposition like the Appellant and ruling party men influence the judiciary. At [6] it was asserted that the judge was heavily influenced by the level of political roles of the Appellant and section 8 adverse credibility which affected his ability to consider the Appellant’s material facts. At [7] there is reference to [26] and the finding that the Appellant is a low level member of the student wing of the BNP but not an activist and [8] asserts that the judge failed to take account of a significant document proving the Appellant was involved in sur place activities and had a significant role in street protests in London and would be easily identified by ruling party men. [10] asserted that the judge failed to address or make clear findings on the Appellant’s sur place activities.

2.2. Ground 2 asserted that the judge failed to consider proportionality in light of the correct factual background and at [12] that the judge erred in failing to consider a material fact – the risk of persecution – as part of significant obstacles and proportionality having rejected core claims.

3. In granting permission to appeal, Judge Tozzi held:

“3. … The FTJ recorded the Appellant’s reliance on letters from the BNP UK, Mirpur Union Branch and UK East London branch, however, it is arguable that the FTJ made no clear findings about the appellant’s alleged sur place activity, as to whether the appellant is an active member of the BNP UK and/or whether this places him at risk on return.”

Hearing

4. Mr Rahman sought to rely on the grounds of appeal. The Appellant explained in his witness statement at [8]-[17] how his family was persecuted and his father and uncle were in prison and facing politically motivated cases in Bangladesh and the judge referred to this but failed to assess this. Whilst in the judgment the judge does mention at [29] that he found that the Appellant had not established a likelihood that he would be persecuted for a Convention reason or be at a real risk of serious harm from his neighbours. However, there was a letter dated 15 December 2024 from the family’s lawyer in the additional bundle which was uploaded separately on 17.12.24 from Md Abu Taher who confirms there are still cases pending against the family. Mr Rahman submitted that if the current situation is considered there are still cases pending against the Appellant. The judge does not mention the lawyer’s letter at all even though it was before him.

5. Mr Rahman submitted that the reference by the judge at [24](d) was to the previous letter dated 11.1.24, also from Mr Taher. There is a supplementary letter because of the change in situation in Bangladesh in August 2024. An independent barrister, Foyez Ahmed, provided an expert report on 17.12.24 before the hearing where he explained the Bangladeshi legal process and why the Appellant would face persecution and how it is related to the Appellant. This was not raised in the grounds of appeal but it was before the Judge. We then checked CCD which showed that an additional bundle of 69 pages with the two reports and an additional witness statement of the Appellant had been uploaded on 17.12.24.

6. Mr Rahman’s first submission is that this significant evidence overlooked by the judge and so not assessed by the Tribunal. His second submission is that the Appellant provided evidence as to his sur place activities in the UK in the form of letters and photos at [56]-[71] in the hearing bundle and also letters from the UK BNP Secretary General: [8]-[10] of the grounds of appeal. He noted that permission to appeal had been granted on this basis.

7. Ms Clewley on behalf of the Home Office submitted that whether the judge considered the fact that the Appellant’s family were imprisoned it could be seen from [15] of the decision and reasons that the judge considered all the documentary evidence provided by the parties. She submitted that the fact he does not mention something does not mean he has not considered it. Whilst the grounds of appeal allege that the judge did not consider whether the family had been imprisoned due to a land dispute it can be seen that he did consider this at [25] lines 14 and 15.

8. Ms Clewley submitted that it could be seen that the judge considered this matter in the round with the other evidence and has looked at the fact that the other family members had been arrested but had been released and bailed and were able to live elsewhere in the country and remained in contact with the Appellant and essentially everyone else in the family is still there in Bangladesh. Ms Clewley submitted that the judge has recorded that the Appellant has not discharged the burden of showing why he would not be able to do so in the same situation.

9. She noted that the burden is upon the Appellant to demonstrate the prosecution was politically motivated and he has not done so. Ms Clewley submitted that it could also be seen at [30] that the judge found that there would be sufficient protection for the Appellant. She submitted that the grounds of appeal were a mere disagreement with the judge’s decision.

10. Ms Clewley submitted that in effect Mr Rahman had extended the grounds of appeal in his submissions and the supplementary bundle. She submitted with regard to the letter from the advocate in Bangladesh that the judge is not disputing that the claims are ongoing just that they are not politically motivated so it does not take the matter any further. Therefore any risk of politically motivated charges are not material to the judge’s finding.

11. With regard to the Appellant’s asserted sur place activity Ms Clewley noted that this relies on a changed country situation as the Awami League are no longer in power and so the grounds of appeal are flawed. By the time of the date of hearing on 20 December 2024 there had been a change of situation in the judge’s mind: see [9]. She submitted the Appellant’s claim at its highest when looking at the evidence is that he is a regular member of the BNP without power or influence. There are photographs of him at the crowd but there is nothing to show his images have been disseminated by the press or that he is an organiser or leader and there is nothing to show he has authority or a role at all.

12. Ms Clewley submitted that it could be seen from the updated CPIN that neither leaders nor supporters of the BNP are at risk. At its highest the Appellant’s claim is that he is a regular member. He is not of a high profile and it would not have made any difference to the judge’s finding given his level of involvement in the UK is the same as in Bangladesh and does not increase the risk level and there is no evidence he has come to the attention of the State: HK at [44] and the judge would have reached the same conclusion. It is clear from the Appellant’s witness statement at [36] about his political activities that there is nothing prominent or a leadership role. In the judge’s determination at [24](a) he considered the UK BNP letter and East London branch and the judgment in Karanakaran (op cit) was referred to at [15].

13. Ms Clewley noted that Article 8 proportionality had not been relied upon. She submitted that there was no error of law and any error in the alternative was not material.

14. In his reply Mr Rahman submitted that the judge had failed to take account of material evidence and if the judge had considered the expert report and recent letters it may make a difference. With regard to the Appellant’s sur place activities two letters had been mentioned but there had been no assessment of those letters. Therefore, there was much material evidence that had not been addressed by the Judge.

15. I reserved my decision which I now give with my reasons.

Findings

16. It is regrettable that the First tier Tribunal Judge overlooked the contents of the additional bundle which had been uploaded on 17 December 2024, 3 working days before the hearing. It is unclear why his attention does not appear to have been drawn to the updating letter from the Appellant’s lawyer, Mr Md Taher and the report from the barrister, Foyez Ahmed, given that these were key documents in any assessment of the risk to the Appellant on return to Bangladesh.

17. Ms Clewley is correct to point out that this was, also inexplicably, not a matter raised in the grounds of appeal. I note that the Appellant has changed his representatives since that time so an explanation for these omissions by his previous representatives will not be forthcoming. However, I find that the failure to take account of this material evidence is such a clear example of procedural unfairness as to amount to a Robinson obvious point and I heard submissions from both parties on the point. I have concluded that this failure amounts to a material error of law.

18. I further find that the judge failed to give reasons for his findings at [25] and [26] rejecting the political aspects of the Appellant’s protection claim, in relation to risk on return and bearing in mind that there was a previous letter from Mr Md Taher stating that the Appellant was facing ongoing cases, yet the judge entirely failed to engage with this evidence.

19. Whilst the judge concluded that the Appellant could internally relocate away from his home area as the male members of his family have done, in order to escape the land dispute with their neighbours, this fails to take account of the fact that in the updating letter of 15 December 2024 Mr Md Taher states that an arrest warrant has been issued for the Appellant. If that is correct then the issue of internal relocation would not arise as the Appellant would be arrested immediately on return to Bangladesh in pursuance of the warrant.

20. I further find that the judge erred materially in law for the reasons in the grant of permission to appeal in that he noted at 24(a) that there was evidence as to the Appellant’s involvement with the BNP in the UK but the judge failed to make any findings on this evidence, as set out in Ground 2 of the grounds of appeal.

Notice of Decision

21. The judge made material errors of law. In light of the procedural fairness issue relating to the failure to take account of additional bundle of evidence submitted three days before the hearing, which renders the judge’s findings concerning credibility and risk on return unreliable, applying Begum [2023] UKUT 00046 (IAC) I set the decision aside in its entirety and remit the appeal for a hearing de novo before a different First tier Tribunal Judge.

Rebecca Chapman

Deputy Upper Tribunal Judge Chapman

29 May 2025