Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-000957
FIELD HOUSE, LONDON First-tier Tribunal No: HU/62291/2023
LP/02881/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 2 April 2026

Before

MR JUSTICE LAVENDER, CHAMBER PRESIDENT
DEPUTY CHAMBER PRESIDENT PLIMMER

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

BB
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms Nolan, Senior Home Office Presenting Officer
For the Respondent: Ms Fisher, Counsel instructed by Gillman-Smith Lee Solicitors

Heard at Field House on 14 January 2026

DECISION AND REASONS

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the respondent 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 respondent. Failure to comply with this order could amount to a contempt of court.

(1) Introduction
1. The Respondent (‘BB’) is a citizen of Myanmar who made a claim for asylum in the United Kingdom (‘the UK’) on 10 April 2022. The Appellant (‘the SSHD’) has appealed against the decision of a judge of the First-tier Tribunal (‘the FTTJ’) dated 25 November 2024, which allowed BB’s appeal against the SSHD’s decision dated 10 October 2023 to refuse her international protection and human rights claims.
2. We maintain the anonymity order made by the FTTJ because the importance of respecting the UK’s obligations under the Refugee Convention in this particular case outweighs the strong public interest in open justice.
(2) Background
3. BB claimed that she is at risk of persecution for reasons relating to her activities in opposition to the Myanmar military regime. The SSHD expressly accepted that BB supported (including financially) the National Unity Government (‘NUG’) and the People’s Defence Force (‘PDF’). The NUG were deposed following a military coup in February 2021. The PDF is the armed wing of the NUG and the military regime designated it as a terrorist organisation in May 2021.
4. In her decision letter, the SSHD did not accept that BB would be of adverse interest to the military regime, contending that BB’s accepted political activities are low level and that she does not meet the criteria outlined at [3.2.3] of the SSHD’s “Country Policy and Information Note - Myanmar (Burma): Critics of the military regime” dated June 2023 (‘the CPIN’). The SSHD provided four discrete reasons for disputing the credibility of parts of BB’s account:
(1) BB was unable to evidence her alleged connection to Ko Paing Htoo (‘KPH’);
(2) BB failed to evidence her claim that her father was detained for two days in April 2022;
(3) BB’s account in interview that the authorities began to watch her in March 2022 due to the arrest of KPH was inconsistent with the Facebook post which she provided suggesting that he was not arrested until April 2023 (although we note that the reference to 2023 appears to be a mistake, as the relevant post in the bundle, at p 464, is dated 23 April 2022);
(4) BB was able to pass through Yangon checkpoints without adverse interest being shown.
(3) The FTT Proceedings
5. BB relied upon additional evidence in support of her appeal to the First-tier Tribunal (“the FTT”). This included, inter alia: a witness statement dated 23 January 2024, in which she addressed in some detail the disputed credibility issues raised by the SSHD, as summarised above; copies of various pages from her Facebook account; a country expert’s report from Dr Judith Bayer dated 27 April 2024; and four witness statements from witnesses A to D (“the four statements”). Copies of the four statements were not provided to the SSHD, due to concerns about the potential risks for A to D if their identities and their evidence were to come to the attention of the Myanmar military government.
6. The FTTJ appears to have proactively case-managed this appeal up to the final hearing date. At a case management hearing on 28 June 2024, a confidentiality ring order was sought on behalf of BB regarding the four statements, but the SSHD did not put forward named individuals to be members of the confidentiality ring. In the absence of a confidentiality ring order, the FTTJ indicated that the matter would be listed for two days, with the first day to be treated as a reading day, to give the SSHD the opportunity to consider the four statements, which would not be disclosed before then, and to take instructions.
7. In another appeal concerning an asylum claimant from Myanmar, who relied upon three of the four statements, the FTTJ concluded at a case management hearing on 22 July 2024 that, whilst the risk of A to D’s evidence becoming generally known was low, if it happened, the risk to their families would be catastrophic. In that case, which we will refer to as “XYZ”, the FTTJ noted that the SSHD had been provided with opportunities to resolve this issue differently, but had been unable to do so.
8. BB’s solicitors made a written application dated 11 September 2024 for a direction prohibiting disclosure of the four statements under rule 13 of the Tribunal Procedure (FTT) (Immigration and Asylum Chamber) Rules 2014 (as amended). It was submitted that there was a risk, derived from the fact of uploading the four statements, which would leave them open to view from unidentified individuals at the Home Office and the FTT, that information would filter through to the Myanmar community. This application was opposed by the SSHD.
9. In a decision dated 23 September 2024, the FTTJ made the rule 13(2) direction sought. This specified that, at the beginning of the substantive hearing, the FTT would be at liberty to make a direction to disclose the four statements to the presenting officer. The FTTJ also indicated that the SSHD was at liberty to ask for the matter to be listed for a short hearing on 18 October 2024 with a view to exploring the possibility of the presenting officer assigned to XYZ also dealing with the instant case. This is because three of the four statements had already been disclosed in XYZ and the FTTJ anticipated that the SSHD might elect to use the same presenting officer for both cases, thereby enabling access to the relevant material well in advance of the substantive hearing in the instant case.
10. The SSHD’s application to set aside the rule 13(2) direction was refused at a case management hearing on 24 October 2024. In written submissions dated 25 October 2024, the SSHD argued that, in order to prepare adequately, including conducting necessary checks and obtaining instructions from appropriate officials, she required access to the relevant evidence in advance of the final hearing date. The SSHD also identified safeguards in place to protect the four statements from onward disclosure: the four statements would not be uploaded online; a senior caseworker, Ms Afzal, had been appointed to handle the four statements in a secure manner; and the four statements would only be available to “restricted officials”. We note, however, that this list of “restricted officials” was very broadly drafted, did not specify named individuals and included categories as broad as “other government departments”.
11. The SSHD’s renewed application to set aside the rule 13(2) direction was refused at the beginning of the substantive hearing before the FTTJ on 28 October 2024, with the following reasons provided at [13] to [15] of the FTTJ’s decision: (i) whilst the SSHD proposed safeguards to protect evidence being disclosed beyond individuals who were “part of the appeal”, disclosure of the evidence could be “catastrophic” for the individuals giving evidence and their family members; (ii) there was no prejudice to the SSHD because her officials had already had access to the evidence in a separate appeal and the instant appeal had been listed over the course of two days to ensure the SSHD had sufficient time to prepare; (iii) the Carltona principle was irrelevant; (iv) there was no prejudice to the parties and further applications to amend could be made if necessary. The FTTJ expressly indicated that, if the SSHD considered that there was a need for the four statements to be disclosed beyond the presenting officer in the appeal, Ms Nolan, then an application could be made under rule 13(5).
12. The hearing proceeded in private and subject to the rule 13(2) direction. The FTTJ’s decision does not explain why it was considered necessary for the hearing to take place in private, but this has not been challenged before us. At the end of the hearing, Ms Nolan made an application for a direction permitting disclosure of the four statements to Ms Afzal and the FTT made a further rule 13 direction to that effect.
13. Of the four witnesses, only one was called to give evidence, witness C. During the course of her evidence, it became clear that she would require the services of an interpreter. Arrangements were made for this. The FTTJ made a confidentiality ring order for the purpose of ensuring that the interpreter did not disclose protected information to anyone outside the confidentiality ring.
14. The FTTJ allowed BB’s appeal, having accepted the expert’s evidence, concluding that it was consistent with the CPIN “insofar as the worsening of the circumstances for anyone considered to be a political opponent of the state.” The FTTJ concluded that there were very strong grounds, supported by cogent evidence, not to follow the extant country guidance decision, i.e. TS (Political opponents – risk) Burma (CG) [2013] UKUT 00281 (IAC) (‘TS’), which was held to remain appropriate in OO (Burma – TS remains appropriate CG) Burma [2018] UKUT 00052 (IAC), and the FTTJ identified the risks for political opponents of the regime in the light of the expert’s evidence and the CPIN, as supported by the evidence of witnesses A to D. The FTTJ dealt in detail with the evidence of witnesses A to D in a confidential appendix to her decision. The FTTJ went on to resolve the disputed issues regarding the credibility of BB’s account in her favour and accepted that she had been involved in sur place activities. The FTTJ concluded that the country background evidence relied upon supported BB’s claim that she faced a real of risk of persecution, given her accepted account and characteristics.
(4) The Appeal to the Upper Tribunal
(4)(a) The Grounds of Appeal to the Upper Tribunal
15. On 5 May 2025 an Upper Tribunal Judge (“the UTJ”) granted the SSHD permission to appeal on all of the grounds of appeal, which can be summarised as follows:
(1) Ground 1: The FTTJ materially misdirected herself in law in her application of rule 13 by failing: to make any finding as to the likelihood of harm, as required under rule 13(2)(a); to carry out a proportionality assessment, as required under rule 13(2)(b); or to identify a specific person, as required under rule 13(2).
(2) Ground 2: The FTTJ erred in law in seeking to distinguish the presenting officer from the SSHD, when they are indistinguishable in law: see Awuah and Others (Wasted Costs Orders – HOPOs – Tribunal Powers) [2017] UKFTT at [28] to [30].
(3) Ground 3: The FTTJ’s approach led to procedural fairness on the basis that: the SSHD’s ability to consult her own officials was significantly limited; the use of an appendix decision providing the FTT’s reasoning for accepting the evidence of witnesses A to D was not agreed and hampered the ability to draft grounds of appeal; the suggestion that the SSHD would breach her undertakings about handling sensitive information gave the impression of apparent bias and unfairness; and BB did not provide evidence to establish a risk of onward disclosure on the part of the SSHD’s officials. The SSHD relied upon a witness statement from Ms Afzal stating that the SSHD was unable to prepare adequately for the hearing, as officials were unable to conduct the necessary checks and obtain instructions from appropriate officials, such as the decision making team and the country policy and information team.
(4) Ground 4: The FTT provided inadequate reasoning for finding very strong grounds to depart from the country guidance decision on Myanmar, TS.
(5) Ground 5: The FTT failed to apply the guidance in: (i) Roba (OLF - MB confirmed) (CG) [2022] UKUT 00001 (IAT) (“Roba”) regarding departure from country guidance; and (ii) XX (PJAK, sur place activities, Facebook) (CG) [2022] UKUT 00023 (IAT) (“XX”) regarding Facebook evidence.
(6) Ground 6: The appeal raises points of general importance in relation to the SSHD’s handling of evidence in international protection appeals and the security of the FTT’s online system.
16. When granting permission to appeal, the UTJ observed that the SSHD had not fully engaged with the contention that the rule 13(2) direction was an “excluded decision” for the purposes of section 11 of the Tribunals, Courts and Enforcement Act 2007. The UTJ was nonetheless satisfied that it was arguable that the FTTJ's refusal to set aside the rule 13(2) direction and the allegation in the grounds of appeal that the maintenance of the rule 13(2) direction caused procedural unfairness meant that, at least arguably, it was not an excluded decision.
17. The SSHD’s appeal was opposed on behalf of BB in a rule 24 notice.
(4)(b) The Hearing
18. The hearing before us proceeded in public. There was no application for a private hearing or any other confidentiality order, although we maintain the anonymity order for the reasons we have set out above. The parties relied upon their skeleton arguments and expanded upon them in their oral submissions. We summarise these submissions at this stage, but address them in more detail in our analysis below.
19. Ms Nolan submitted that the appeal was not brought against the rule 13(2) direction, but rather against the substantive determination of the appeal, including “errors of approach by the FTT as to rule 13, which were material to the outcome of the appeal”. Ms Nolan relied upon the first three grounds together. She argued that the FTT hearing was unfair for reasons relating to the rule 13(2) direction and that the FTT decision should therefore be set aside. Ms Nolan accepted that decisions concerning the rule 13(2) direction in the period leading up to the hearing could be described as procedural or preliminary and were therefore excluded decisions, but she submitted that the decision not to set aside the rule 13(2) direction taken at the hearing itself was not an excluded decision and that it led to a procedurally unfair hearing. Ms Nolan sought to rely upon the Carltona principle to support her submission that the disclosure of documents to the presenting officer is, as a matter of law, disclosure to the SSHD. Ms Nolan argued that the decision to maintain non-disclosure beyond the presenting officer prevented the necessary consultation with the SSHD’s officials in order to obtain appropriate advice, directions and instructions on the four statements.
20. Irrespective of the submissions relating to non-disclosure of the four statements, Ms Nolan maintained reliance upon grounds 4 and 5, challenging the FTT’s approach to TS and XX. Ms Nolan accepted that ground 6 did not add anything to the other grounds, but simply articulated why permission to appeal should be granted. She said no more about it and neither do we.
21. Ms Fisher relied upon her skeleton argument in support of her submission that the decision to maintain the rule 13(2) direction at the hearing was an excluded decision. Ms Fisher argued in the alternative that the rule 13(2) direction did not lead to any material unfairness because the FTTJ left it open to Ms Nolan to make an application if she needed to take instructions regarding the evidence, but no such application was made. Ms Fisher submitted that the FTTJ was entitled to make the findings which she made regarding the country background evidence and BB’s credibility in the light of all of the evidence, even excluding the four statements.
22. At the end of the hearing we reserved our decision.
(5) Analysis
(5)(a) The Four Statements and the CPIN
23. It is important to recall the limited role which the four statements played at the FTT hearing and in the FTTJ’s decision. The issues in dispute before the FTTJ were relatively limited for two reasons:
(1) First, the SSHD had accepted material aspects of BB’s account and only disputed her credibility on the basis of four discrete matters. BB addressed these matters in detail in her witness statement. She did not rely upon the evidence of witnesses A to D in this respect: their evidence was only relevant to the determination of risk in Myanmar for political activists generally. Their evidence did not relate specifically to BB’s circumstances. Indeed, we were told that their evidence was being deployed in 37 other appeals before the FTT.
(2) Secondly, although the FTTJ considered that it was necessary to determine whether there were very strong grounds for not following the country guidance in TS, the updated country background evidence relied upon by both parties was to similar effect: (i) since the imposition of military rule in February 2021, harassment of, and violence against, those who oppose, or are perceived to oppose, the regime has increased; and (ii) it remained appropriate to conduct a holistic approach to prospective risk which arose from political activities in Myanmar and the UK, ethnicity and intention on return.
24. The CPIN in large measure provided a similar update to the country expert’s report, such that the FTTJ specifically found at [47] that they were consistent in outlining “the worsening of the circumstances for anyone considered to be a political opponent of the state”. Indeed, Ms Nolan invited the FTT to apply the guidance set out in the CPIN, in relation to which she is recorded as having submitted at [46] that this “sufficiently covered the profiles of those likely to be at risk”.
25. The FTTJ referred to detailed extracts from the CPIN. It is necessary to set these out in full (with our emphasis added).
“Executive summary
Min Aung Hlaing is leader of the country having taken control in a military coup in February 2021, which ousted the democratically elected government and prime minister Aung San Suu Kyi.
Since the imposition of military rule, harassment and violence against civilians has increased, focusing on those who oppose or are perceived to oppose the regime and in areas where there is armed conflict. Treatment includes violent oppression of peaceful protests, arbitrary arrests of protestors, and family members, property raids and seizures, enforced disappearances and extrajudicial killings. Whether a person is likely to be at risk of persecution from the military state will depend on a person’s location in Myanmar, profile, activities and future political behaviour.
The Country Guidance case TS (Political opponents –risk) Burma/Myanmar CG [2013] held
‘The spectrum of those potentially at-risk ranges from those who are (or are perceived to be) actively seeking to overthrow the government to those who are in outspoken and vexing opposition to it. Whether a person needs protection will depend upon past and future political behaviour.’ Decision makers should continue to follow the findings in TS but note the current situation and the low threshold for what the military consider as opposition to their rule.
The exact number of political detainees is unknown, but sources indicate an increase of those detained compared to pre-coup numbers, with estimates of around just under 18,000 remaining in detention by May 2023. Those detained can face lengthy prison sentences, including the death penalty, torture, and sexual violence. TS held that ‘Detention in Burma, even for a short period, carries with it a real risk of serious ill-treatment, contrary to Article 3 of the ECHR and amounting to persecution/serious harm...’.
A person is unlikely to be at risk of persecution or serious harm in relation to political activities undertaken in the UK (sur-place) alone. It will depend on their activities and profile in the UK, their past political activities in Myanmar, if they are of an ethnicity that is seen by the government to be de-stabilising the union and their intentions on return. TS held that ‘It is someone’s profile in the eyes of the state that is the key to determining risk. The more the person concerned maintains an active political profile in Burma, post-return, the greater the risk of significant monitoring, carrying with it a real risk of detention.’
For those who establish a well-founded fear of persecution from the military state, protection is unavailable and internal relocation is not reasonable.”
“3.2.2 ...each case must be considered on its facts and the onus is on the person to demonstrate that they would be at real risk of persecution and of serious harm on return.
3.2.3 It is someone’s profile in the eyes of the state that is key to determining risk. The more the person concerned maintains an active political profile in B, post return the greater the risk of significant monitoring carrying with it a real risk of detention. In general, none of the risks identified above is reasonably likely to arise if an individual’s international prominence is very high. The evidence shows that the government is keen to avoid adverse publicity resulting from the detention internationally well-known activist.
3.2.4 The regime reportedly monitors private electronic communications through online surveillance targeting critics, protesters, and pro-democracy activists in Myanmar. CCTV surveillance, reportedly including facial recognition, exists in 5 cities across Myanmar with reports of further rollout planned.
3.2.5 The country information does not suggest a significant change in monitoring ability or interest in sur place activities since TS was heard. Therefore, decision makers should continue to follow those findings, considering recent events as documented in this note, including that the military are less concerned with attracting adverse publicity from the arrest of internationally well-known individuals.”
26. It is against this background that we turn to the two substantive grounds of appeal (grounds 4 and 5) first, before addressing the grounds relating to the rule 13(2) direction and procedural unfairness (grounds 1-3).
(5)(b) Ground 4: Not Following the Country Guidance in TS
27. Ground 4 asserts that the FTTJ failed to provide adequate reasons for departing from TS. The relevant guidance, as set out in paragraphs 3 to 9 of the headnote in TS, is as follows:
“3. The spectrum of those potentially at risk ranges from those who are (or are perceived to be) actively seeking to overthrow the government to those who are in outspoken and vexing opposition to it. Whether a person is in need of protection will depend upon past and future political behaviour. This assessment has to be made against the background of a recently reforming government that carries a legacy of repression and continues to closely monitor those in opposition. The evidence points to a continuing anxiety over the break up of the state and the loss of its power.
4. The question of risk of ill-treatment will in general turn upon whether a returnee is detained by the authorities at any stage after return.
5. A person who has a profile of voicing opposition to the government in the United Kingdom through participation in demonstrations or attendance at political meetings will not for this reason alone be of sufficient concern to the Burmese authorities to result in detention immediately upon arrival. This is irrespective of whether the UK activity has been driven by opportunistic or genuinely held views and is regardless of the prominence of the profile in this country.
6. A person who has a profile of voicing opposition to the Burmese government in the United Kingdom can expect to be monitored upon return by the Burmese authorities. The intensity of that monitoring will in general depend upon the extent of opposition activity abroad.
7. Whether there is a real risk that monitoring will lead to detention following return will in each case depend on the Burmese authorities’ view of the information it already possesses coupled with what it receives as the result of any post-arrival monitoring. Their view will be shaped by (i) how active the person had been in the United Kingdom, for example by leading demonstrations or becoming a prominent voice in political meetings, (ii) what he/she did before leaving Burma, (iii) what that person does on return, (iv)the profile of the people he or she mixes with and (v) whether a person is of an ethnicity that is seen by the government to be de-stabilising the union, or if the person’s activity is of a kind that has an ethnic, geo-political or economic regional component, which is regarded by the Burmese government as a sensitive issue.
8. It is someone’s profile in the eyes of the state that is the key to determining risk. The more the person concerned maintains an active political profile in Burma, post-return, the greater the risk of significant monitoring, carrying with it a real risk of detention.
9. In general, none of the risks identified above is reasonably likely to arise if an individual’s international prominence is very high. The evidence shows that the government is keen to avoid adverse publicity resulting from the detention of internationally well-known activists…”
28. Ground 4 makes three points in support of the overarching submission on inadequate reasons: (i) the reasons provided for accepting the evidence of witnesses A to D are set out in an appendix decision that has only been disclosed to three people and therefore the reasons provided by the FTT at [48] for accepting their evidence are inadequate; (ii) it is unclear how the expert’s evidence on the amendment to the penal code establishes that BB’s sur place activities would be known to the authorities; and (iii) BB does not have a public profile and would not be at risk of termination of citizenship.
29. Ms Nolan did not advance points (ii) and (iii) orally and there is no reference to these points in the SSHD’s skeleton. The FTT’s primary reason for finding that the evidence met the “very strong grounds” threshold is contained in [51]: since OO was decided, “there has been a change in government as a result of the coup in 2021 and this has led to increased hypervigilance against any opposition”. That reflects the position adopted by both the expert and the CPIN and is to be contrasted with the guidance in TS, as set out in headnote 3, which we have quoted above, that the assessment has to be made against the background of a recently reforming government. Points (ii) and (iii) were not, on a proper analysis, directed to the FTTJ’s finding that there were very strong grounds for departing from the country guidance in TS. Rather, they were concerned with the facts of BB’s own case and, in particular, whether her activities would come to the attention of, or be of interest to, the government in Myanmar.
30. We can therefore turn to point (i). At the beginning of the hearing, we clarified Ms Nolan’s approach to the FTT’s findings on witnesses A to D. She confirmed that the appropriate way to approach those findings was that the witnesses’ evidence did no more than support the country background evidence already available within the expert’s report and the CPIN. This is clear from [48], where the FTTJ said this about these witnesses’ evidence:
“I am satisfied the evidence supports the fact that since the coup the circumstances for those perceived to be in opposition have worsened with increased monitoring of sur place activities using what is known of the military junta’s sophisticated intelligence gathering capabilities - see CPIN [3.2.4-3.2.6] and [11.5].”
31. For completeness, [11.5] of the CPIN states:
“11.5.1 The UN Special Rapporteur noted in March 2023 ‘The SAC has forged ahead with its plans to require the registration of SIM cards and mobile phone IMEI numbers, which will greatly enhance surveillance capabilities.’
11.5.2 Reuters reported on 11 July 2022: ‘Since the February 2021 coup, local authorities have started new camera surveillance projects for at least five cities including Mawlamyine - the country’s fourth-largest city…[ according to information from the three people who are or were involved in projects to install camera surveillance systems in Myanmar].
‘The new projects are in addition to five cities where camera systems touted as crime prevention measures were either installed or planned by the previous government led by Aung San Suu Kyi…’
11.5.3 DW reported on 28 July 2023 ‘Myanmar’s junta is expanding its public surveillance capabilities by using facial recognition technology, raising fresh concerns about the safety of democracy activists and resistance groups in Myanmar… Experts and activists on the ground fear that the military’s increased access to this technology could have consequences for the safety of anyone opposing the junta.’”
32. We note that the FTTJ referred to the evidence of these witnesses again at [52] and [63], but, when the FTTJ decision is read as a whole, together with the country expert’s report and the CPIN, we agree with Ms Nolan that this evidence merely supported the evidence already available to and accepted by the FTTJ. We are satisfied that the FTTJ’s reasons for departing from TS are tolerably clear. Ms Nolan accepted that the FTTJ directed herself properly as to the high threshold required. We agree with Ms Fisher that, on the evidence available, the FTTJ was entitled to depart from TS for the reasons provided.
33. It is convenient to address point (i) in ground 4 together with ground 5, insofar as that ground alleged that the FTTJ failed to apply the guidance set out in Roba at [headnote 1(2)], which states that:
“An assessment as to whether to depart from a CG decision is to be undertaken as to: (i) whether material circumstances have changed; and (ii) whether such changes are well established evidentially and durable.”
34. The FTTJ clearly grappled with the first of these points and found that the material circumstances had changed. Whilst the FTT did not expressly address the second of these points, it is clear from the decision read as a whole that the FTTJ regarded the change as well established evidentially, including through the SSHD’s own evidence in the CPIN, and as durable, given the long-standing military rule since February 2021.
35. It is significant that the FTTJ made an alternative finding at [65] that, even if she had not accepted that there was increased hypervigilance following the military coup, “even on current country guidance”, BB’s “profile is of someone who would be of an interest on return”. The SSHD has not challenged this alternative finding, which we find was open to the FTTJ in the light of BB’s accepted account of political activism in Myanmar and in the UK over an extended period of time and her Mon ethnicity.
(5)(c) Ground 5: Approach to Facebook Evidence
36. As set out in ground 5, BB relied on Facebook evidence in two respects. First, as the FTT recorded at [62], she produced hard copies of her own Facebook pages indicating that she had attended anti-regime demonstrations in the UK (including specific events in 2024) and had participated in other anti-regime activities. Secondly, as the FTT acknowledged at [58] and [59], she relied on a copy of a Facebook page from “KPH Thanbyuzayat Watch” dated 23 April 2022, announcing KPH’s arrest.
37. Ground 5 submits, without particularisation, that the FTT failed to apply XX to the Facebook evidence, despite submissions being made about this. The SSHD’s skeleton and Ms Nolan’s submissions to us took this point little further. Ms Nolan relied upon [7 and 8] of the headnote in XX. These state as follows:
“Guidance on social media evidence generally
7) Social media evidence is often limited to production of printed photographs, without full disclosure in electronic format. Production of a small part of a Facebook or social media account, for example, photocopied photographs, may be of very limited evidential value in a protection claim, when such a wealth of wider information, including a person’s locations of access to Facebook and full timeline of social media activities, readily available on the “Download Your Information” function of Facebook in a matter of moments, has not been disclosed.
8) It is easy for an apparent printout or electronic excerpt of an internet page to be manipulated by changing the page source data. For the same reason, where a decision maker does not have access to an actual account, purported printouts from such an account may also have very limited evidential value.”
38. The International Association of Refugee and Migration Judges’ Judicial Guidelines for the Analysis of Social Media (‘the IARMJ guidelines’) provide helpful context and guidance on the use of social media in the determination of asylum claims. The IARMJ guidelines refer to XX with approval at [20-21] and summarise the potential relevance of evidence from social media such as Facebook at [9] as follows:
“Social media evidence may be relevant in asylum determination in various ways, most obviously:
(a) In corroborating the truth of an account, because events asserted to have taken place are verifiably documented online.
(b) In controverting the truth of an account, because information comes to light which is inconsistent with the asylum seeker’s story.
(c) In determining the level of exposure a person’s profile or views may have had, via the extent of their social network and via any express threats received.
(d) In determining whether the fact that a person’s profile or views may have come to the attention of their national authorities will lead to any adverse reaction giving rise to a real risk of serious harm.
(e) In assessing whether the foreseeable reaction of the authorities in the country of origin would be because of an actual, or attributed, Convention reason, such as political opinion or religion.
(f) An individual who was a previously active blogger in their home country may cease posting in the country of refuge out of fear for their family members, or they may start posting under an anonymous name.
(g) An asylum seeker with no genuine political views and no prior social media presence begins to publish posts which are inconsistent with their previous behaviour.”
39. It is important to note the SSHD’s concession, clearly recorded in the decision letter and by the FTTJ, that BB was a genuine political activist, supporting the parties in direct opposition to the military regime. Whilst that activism was alleged to be at a low level, it extended to financial support. The fact that BB attended demonstrations in the UK and participated in other anti-regime activities and began posting about these whilst living within the freedoms offered in the UK was a natural progression for her. We enquired of Ms Nolan whether the SSHD disputed the fact, as asserted by BB in her evidence, that she engaged in these activities. Ms Nolan candidly explained that cross-examination focussed upon the allegedly low level of BB’s activities referred to in the Facebook posts and that the SSHD’s position in the FTT was that the regime would attach little weight to such low level activities.
40. It is against that background that we turn to the SSHD’s submission in ground 5 that the FTT failed to have regard to BB’s failure to provide full disclosure of her Facebook account and to address the possibility of manipulation. The difficulty with this submission is that Ms Nolan accepted that she did not challenge the veracity of BB’s claim to have attended the demonstrations or participated in the anti-regime activities referred to in the Facebook pages. To adopt the framework of [9] of the IARMJ guidelines, the role of the Facebook posts showing BB at demonstrations was not for purpose (a), to corroborate the truth of her account of attendance. Rather, Ms Nolan focused upon purpose (d) and submitted that BB’s personal Facebook profile would not lead to any adverse reaction giving rise to a real risk of serious harm on the part of the regime. In those circumstances, this was not one of those cases in which full disclosure of the Facebook account was necessary.
41. Consistent with XX, the IARMJ Guidelines caution at [25] that screenshots of posts can be falsified or presented selectively and can thus only represent one component in a larger body of evidence. The IARMJ Guidelines offer suggestions as to how to address this, including providing the actual account and associated metadata. However, the instant case did not require such steps to be taken, given the issues in dispute, with the Facebook posts primarily being relied on as showing BB’s allegedly low level political activism. The IARMJ Guidelines state at [24] that it will usually be desirable for a hard copy (or its equivalent in the modern era of electronic filing) to be available so that the legal representatives for the government and the asylum seeker, as well as the judge, can ensure that they are literally “on the same page” when reviewing the evidence. Extensive hard copies were provided, together with a chronology of relevant events, within BB’s bundle of evidence. In a case which was pro-actively case-managed by the FTTJ, no directions were sought or given regarding disclosure of the full Facebook account or the use of the “Download Your Information” function. This is because no questions or concerns were raised that the material was presented in a selective manner. Instead, the issue in dispute was whether the posts would increase BB’s risk on return.
42. The KPH Facebook post is an entirely separate issue. The FTTJ accepted that this post corroborated BB’s claim that KPH was arrested in April 2022 and not when his house was raided at an earlier date. This evidence emanated from a public Facebook post unrelated to BB ‘s account and took the form of country background evidence supporting BB’s claim. Ms Nolan was unable to explain how the FTTJ’s acceptance of this evidence breached the XX guidance.
(5)(d) Ground 3
43. As we have said, ground 3 contends that the FTTJ’s approach led to procedural fairness on the basis that: the SSHD’s ability to consult her own officials was significantly limited; the use of an appendix decision providing the FTT’s reasoning for accepting the evidence of witnesses A to D was not agreed and hampered the ability to draft grounds of appeal; the suggestion that the SSHD would breach her undertakings about handling sensitive information gave the impression of apparent bias and unfairness; and BB did not provide evidence to establish a risk of onward disclosure on the part of the SSHD’s officials.
44. Ms Nolan accepted that the appendix to the FTTJ’s decision offered no material additional reasons for the FTTJ’s conclusions. At the hearing, Ms Nolan clarified that she was not alleging bias, and we therefore need to say no more about that. The contention that there was a lack of evidence does not relate to the alleged unfairness caused by the rule 13(2) direction, but is instead a contention that the decision to make the rule 13(2) direction was itself erroneous in law or unfair. This is a point which is made within, and is better suited to, ground 1.
45. The SSHD’s skeleton argument takes the matter further by submitting that the presenting officer was effectively barred from consulting officials and obtaining appropriate advice, directions and instructions. It is said that the presenting officer was also prevented from verifying the reliability of the four statements or obtaining country information on issues arising from them. Ms Nolan expanded on this submission orally. When asked to particularise precisely what enquiries needed to be made and of whom, Ms Nolan was unable to assist. There was a short statement from Ms Afzal, who said that instructions could not be taken, but this was not particularised. We note that the FTTJ was satisfied that there was no prejudice to any of the parties as a result of the rule 13(2) direction remaining in place and indicated that, if there was a need for the four statements to be disclosed beyond the presenting officer, then an application could be made under rule 13(5). When we enquired further, we were told that no such application was made either before or during the hearing, although an application for permission to disclose the four statements to another presenting officer with conduct of a similar appeal, XYZ, was granted: see [15] to [18] of the FTT’s decision.
46. Ms Fisher reminded us that at no point during the hearing before the FTTJ, did Ms Nolan say that she was unprepared or disadvantaged or needed to take instructions. Indeed, Ms Nolan indicated that she was ready to proceed on the first day of the hearing and did not need to utilise all the reading time provided. Ms Fisher’s skeleton argument sets out further background to the instant case. This was not an isolated appeal. Rather, the four statements had been disclosed to a presenting officer in another case, XYZ. In addition, the FTTJ had taken steps in directions to ensure that the presenting officer in this case had time to consider the four statements at the hearing.
47. In all the circumstances, we do not consider that Ms Nolan has identified any procedural unfairness caused by the rule 13(2) direction in this particular appeal before the FTT. We dismiss ground 3.
(5)(e) Grounds 1 and 2
48. It follows that it is unnecessary for us to determine grounds 1 and 2. Without any actual procedural unfairness before the FTT, grounds 1 and 2 must fail together with ground 3. In particular, we have not found it necessary to determine whether a decision not to set aside a rule 13(2) direction at a hearing, in circumstances where that is said to impact on the mode of the hearing and the reasons provided for the decision, is an excluded decision.
(6) Final Points
49. We are concerned that the SSHD may have adopted an unduly inflexible approach to the suggestion of a confidentiality ring order during the case management of the appeal before the FTT. We were unpersuaded by Ms Nolan’s suggestion that it was impossible to provide specific names in the light of the large size of the teams employed by the SSHD. We bear in mind that an order can be made expanding a confidentiality ring if the need for such an order can be shown.
50. The SSHD’s approach placed the FTTJ in an unenviable position and probably led to a rule 13(2) direction being made in circumstances where a confidentiality ring order would have been more suitable. Ms Nolan told us that there are 37 other appeals before the FTT raising similar issues and including reliance on the four statements. We encourage the SSHD to reflect on her approach and to reconsider whether there are named individuals in the various relevant departments who could, at least initially, be identified as the appropriate individuals to address the issues involved in a case such as this. As we observed during the hearing, if individuals need to be added to that list, the relevant application to the FTT should be capable of being resolved efficiently and promptly.
(7) Notice of Decision
51. The FTTJ’s decision does not contain a material error of law and the SSHD’s appeal is dismissed.

Deputy Chamber President Plimmer

Judge of the Upper Tribunal
Immigration and Asylum Chamber

30 March 2026