Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001689

First-tier Tribunal No: PA/60198/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 18th of June 2025

Before

UPPER TRIBUNAL JUDGE GREY

Between

TS (Myanmar)
Appellant
and

SECTRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P. Richardson, Counsel instructed by Mount Azure Solicitors
For the Respondent: Ms S. Nwachuku, Senior Presenting Officer

Heard at Field House on 11 June 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity because he is an asylum seeker.

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 is a national of Myanmar. This is an appeal brought by the appellant against the decision of First-tier Tribunal (‘FTT’) Judge Hawden-Beal (‘the Judge’) dated 13 February 2025 (‘the decision’) dismissing the appellant’s protection appeal.
2. The appellant claimed asylum on 26 September 2022 on the basis that a) she fears persecution from the authorities in Myanmar due to her political opinion, and b) because she is gay.
The decision under appeal
3. The Judge recorded that the respondent accepted that the appellant was a national of Myanmar and that she was a low level member of the National Unity Government (NUG), Civil Disobedience Movement (CDM) and the People Defence Force (PDF). The Judge accepted the appellant had established on the balance of probabilities that she was gay. The Judge found that members of the LGBTI1 community are seen as different and the appellant was therefore a member of a particular social group (‘PSG’).
4. The Judge noted the background evidence including that referred to in the respondent’s CPIN and, applying section 32(2)(b) of the Nationality and Borders Act 2022 (‘NABA’), found that the appellant has a subjective fear of persecution because of her membership of a PSG.
5. The Judge recorded that the appellant had never been arrested or detained for her political activities and found it is unlikely she would have come to the attention of the authorities in Myanmar. The Judge found the credibility of the appellant’s account regarding an arrest warrant to be severely damaged. The Judge found the appellant’s account that she had removed any incriminating material on her mobile telephone when leaving Myanmar but left behind at home an old mobile telephone with incriminating evidence of political activities to be implausible. Further, the Judge found the appellant was not at risk because of any sur place activities because she was a low-level participant in demonstrations and nothing more.
6. In relation to the appellant’s claim based on her sexuality, the Judge found there was no evidence the appellant’s sexuality gave rise to any interest from the authorities when she was in Myanmar and “no evidence to suggest that her sexuality is mentioned in any of the Facebook posts which the authorities may see if she is returned to Myanmar such that she is at risk of detention because of that”.
7. Having regard to the objective evidence before her the Judge found that the evidence relating to the treatment of members of the LGBTQ+ community in Myanmar was only in terms of those members of the community being arrested for participation in the anti-regime protests and there was no mention in the evidence to any issues amounting to persecution or serious harm outside of those protests [80]. The Judge observed that Myanmar is a conservative, religious society and that same sex sexual activity is illegal, punishable with up to 10 years in jail and or a fine, but that there was no information before her as to the enforcement of that law or how society and the authorities reacted to members of the LGBTQ+ community prior to the protests or since.
8. In relation to the appellant’s claim based on her sexuality, the Judge concluded that:
“In the absence of that information, albeit that I am satisfied that the appellant is gay and, according to her statement at paragraph 26 wishes to be able to enjoy her life as an openly gay woman, I cannot be satisfied that the appellant would be at risk of persecution because of her sexuality or would be forced to hide her sexuality to avoid such persecution as per HJ ([2010] UKSC 31).”
9. Having dismissed her asylum claim the Judge dismissed the appellant’s claim for humanitarian protection and in respect of Article 3 ECHR on the same basis and determined that the public interest outweighed the appellant’s right to private life in the UK for the purposes of Article 8 ECHR.
The grounds and permission
10. Permission to appeal was sought by the appellant on the following grounds:
1) In light of the objective material before the FTT the Judge reached unsustainable conclusions in respect of the country situation in Myanmar as relates to the appellant’s claim to be gay.
2) There was a material misdirection of law in respect of the principle in HJ (Iran) v SSHD [2010] UKSC 31 in light of the appellant’s evidence that she had to hide her sexuality in Myanmar.
3) There was a material misdirection in respect of the Judge’s conclusion that an activist with a low profile would not face a risk of persecution in Myanmar in light of the relevant Country Guidance.
11. Permission was granted by FTT Judge Athwal in respect of grounds 1 and 2 only in relation to the appellant’s protection claim based on her sexuality. In the permission decision Judge Athwal states:
“2. The first ground asserts that the Judge erred in law by making unsustainable conclusions in respect of the country situation in Burma for people who are LGTBQ+. This ground raises an arguable and material error of law. The findings at [80], “there is no information before me as to the enforcement of that law or how society and the authorities reacted to members of the LGBTI community prior to the protests or indeed since,” is not consistent with her summary of the country information at [44].
3. The second ground asserts that the Judge: “appears to have missed the Appellant’s evidence that she had to hide her sexuality in Myanmar in order to avoid discrimination”; and she failed to determine how the Appellant would behave upon return to Myanmar and why she would conceal her sexuality. I am granting permission because this ground overlaps with ground 1, in that the findings at [80] informed the Judges staged HJ (Iran) assessment.
4. The third ground is difficult to understand. I believe the assertion is that the Judge misdirected herself on the country guidance in relation to low-level political activists and failed to adequately consider her sur place activities. As drafted, the ground does not raise an arguable error of law. At [18] the Judge sets out the Appellant’s sur place activities, including her attendance at demonstrations, at [72-75] she adequately addressed the Appellant’s attendance at demonstrations and gave reasons for why she was not satisfied that it brought the Appellant to the attention of the authorities.”
12. No Rule 24 response has been filed by the respondent.
Error of law hearing
13. Mr Richardson indicated that he wished to raise a preliminary matter which had not been raised in the grounds (or grant of permission) which he submitted amounted to a “Robinson obvious” point (R v Secretary of State for the Home Department ex parte Robinson [1997] 3 WLR 1162).
14. Mr Richardson referred me to the Judge’s summary of the respondent’s position on the appellant’s political activities at [3] of the decision which records that the respondent accepts the appellant is a low level supporter of the NUG, CDM and PDF. Mr Ricardson then referred to [74] of the decision which sets out the headnote of TS (Political opponents – risk) CG [2013] UKUT 281(IAC) (‘TS’). For convenience I set out the full headnote of TS here:
1. In order to decide whether a person would be at risk of persecution in Burma because of opposition to the current government, it is necessary to assess whether such activity is reasonably likely to lead to a risk of detention. 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 within the meaning of the Qualification Directive.
2. A person is at real risk of being detained in Burma where the authorities regard him or her to be a threat to the stability of the regime or of the Burmese Union.
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.
10. In the light of these conclusions, TL and Others (Burma CG) [2009] UKAIT 00017 can no longer be relied on for Country Guidance. The issue of illegal exit and its consequences considered in HM (risk factors for Burmese Citizens) Burma CG [2006] UKAIT 00012 were not addressed by the parties and the guidance in that decision remains in force for the time being.
11. There is evidence of positive changes in Burma which as they become embedded may result in the need for the present country guidance to be revisited by the Upper Tribunal in the short to medium term.
15. In Mr Richardson’s submission the Judge failed to consider the appellant’s future political behaviour on return to Myanmar in the context of the respondent’s acceptance that she was a low level political activist and her attendance at demonstrations in the United Kingdom, particularly in the context of a far less liberal regime in Myanmar than there was at the time TS was decided (see headnote 11 above). In Mr Richardson’s submission the Judge erred in failing to make findings on the appellant’s likely political behaviour on return to Myanmar and failed to assess those findings applying the principles from HJ (Iran).
16. Mr Richardson did not have instructions on why the point he now raises was not raised in the original grounds for permission or why the appellant did not make a renewed application for permission in the Upper Tribunal in respect of ground 3 of the original grounds.
17. Having had the opportunity to take instructions Ms Nwachukwu indicated that the respondent accepted Mr Richardson’s point could now be raised as one that was “Robinson obvious”. She also indicated the respondent conceded the matter amounted to a material error of law. In the circumstances I was prepared to proceed on this basis that an error of law had been established in relation to the decision on risk to the appellant arising from her political activities but I make the following observations.
18. In R v Secretary of State for the Home Department ex parte Robinson [1998] QB 929, the Court of Appeal held as follows:
“39. Because the rules place an onus on the asylum-seeker to state his grounds of appeal, we consider that it would be wrong to say that merely arguability should be the criterion to be applied for the grant of leave in such circumstances. A higher hurdle is required. The appellate authorities should of course focus primarily on the arguments adduced before them, whether these are to be found in the oral argument before the special adjudicator or, so far as the Tribunal is concerned, in the written grounds of appeal on which leave to appeal is sought. They are not required to engage in a search for new points. If there is readily discernible an obvious point of Convention law which favours the applicant although he has not taken it, then the special adjudicator should apply it in his favour, but he should feel under no obligation to prolong the hearing by asking the parties for submissions on points which they have not taken but which could be properly categorised as merely "arguable" as opposed to "obvious". Similarly, if when the Tribunal reads the Special Adjudicator's decision there is an obvious point of Convention law favourable to the asylum-seeker which does not appear in the decision, it should grant leave to appeal. If it does not do so, there will be a danger that this country will be in breach of its obligations under the Convention. When we refer to an obvious point we mean a point which has a strong prospect of success if it is argued. Nothing less will do. It follows that leave to apply for judicial review of a refusal by the Tribunal to grant leave to appeal should be granted if the judge is of the opinion that it is properly arguable that a point not raised in the Grounds of Appeal to the Tribunal had a strong prospect of success if leave to appeal were to be granted.”
19. In AZ (error of law: jurisdiction; PTA practice) [2018] UKUT 245 (IAC) the Upper Tribunal held as follows (headnote):
“(3) Permission to appeal to the Upper Tribunal should be granted on a ground that was not advanced by an applicant for permission, only if:
(a) the judge is satisfied that the ground he or she has identified is one which has a strong prospect of success:
(i) for the original appellant; or
(ii) for the Secretary of State, where the ground relates to a decision which, if undisturbed, would breach the United Kingdom’s international Treaty obligations; or
(b) (possibly) the ground relates to an issue of general importance, which the Upper Tribunal needs to address.”
20. Applying AZ it would appear that any Robinson obvious point needs to be both obvious (as opposed to merely arguable) and one that carries a strong prospect of success. In view of Ms Nwachuku’s concession on behalf of the respondent these matters were not explored at the hearing. However, I consider it appropriate to record that Robinson should not be used as a carte blanche for either party to raise new arguments which had not been raised at the permission to appeal stage or in an attempt circumvent the required permission and renewal process, or to remedy previously defective grounds. It appears to me arguable that this is the case in hand.
21. As an additional but related point, in relation to the appellant’s claimed sur place activity I have regard to the Judge’s findings at [72] – [73]:
“72. I have also considered her attendance at the demonstrations in light of BA (CG [2011] UKUT 36(IAC)) and I will say at the outset that I do not consider she is at risk because of those sur place activities. She claims to be very active in her support for the NGU, attending fundraisers, demonstrations and so on but other than the demonstrations, there is nothing to show that her activities for the NGU will be known to the Myanmar authorities. Her witness Mr TS says that when she attended the demonstrations, she must have been photographed by those at the embassy because he organises these demonstrations and he knows what those at the embassy do. With respect to Mr TS, he cannot possibly know that the appellant must have been photographed. He may suspect but he cannot know. There is no evidence that the Myanmar authorities have expended their intelligence gathering activities to the UK unlike the Iranian authorities, whom it is known have done so.
73. Putting it bluntly, she is a low-level participant in the demonstrations outside the embassy. She may have attended a few demonstrations and nothing more and the fact that she has attended demonstrations proves nothing. She attended and that is it. She has provided no evidence to show that she organised them or did anything other than turn up on the day in question, no doubt, with many others and mere attendance would not mark her out to the Myanmar authorities.”
22. The decision of the Court of Appeal in MH (Bangladesh) v Secretary of State for the Home Department [2025] EWCA Civ 688 (‘MH’) was promulgated on 9 June 2025 this week. The issue addressed by the Court of Appeal was whether the First-tier Tribunal had erred in its treatment of evidence of surveillance and monitoring by the then Bangladeshi government of the appellant's sur place activities. At [37] of the decision it states:
“It can be seen from the cases considered above that the FTT (and the Upper Tribunal if remaking an FTT decision) must not impose an unrealistic evidential burden upon asylum applicants who rely upon sur place activities. It is inherently unlikely that an applicant for asylum will be able to adduce direct evidence of covert surveillance and monitoring by a foreign state. Accordingly, tribunals are not merely entitled, but required, to use their common sense.”
23. MH then sets out at [38] matters on which a tribunal could take judicial notice such as the ease with which persons attending a demonstration can be photographed and filmed and the resulting photographs and films transmitted abroad, as well as the fact that publicly-accessible websites and social media postings can readily be monitored by electronic means. It refers to the requirement for expert evidence on the technical capabilities of targeting monitoring (as opposed to “bulk monitoring”). At [39] it states that the question of the capacity of a foreign state to carry out surveillance and monitoring cannot realistically be divorced from the questions of whether the person in question is already of interest to the regime and, if not, whether the activities relied on are likely to make the person of interest to the regime. It states at [40] that an applicant for asylum can be expected to produce evidence to put news media coverage, social media posts and the like into context.
24. On a brief examination of this very recent Court of Appeal decision it would appear that the Judge’s finding at [73] that mere attendance by the appellant at demonstrations outside the Myanmar Embassy would not bring her to the attention of the authorities, may need revisiting (through no fault of the Judge).
25. In conclusion, despite the limited grant of permission to appeal, in view of the respondent’s concession of an error of law in relation to what was referred to as a “Robinson obvious” point, the appellant’s asylum claim in relation to her political opinion requires further examination of her likely behaviour on return to Myanmar applying the provisions of HJ (Iran). In addition, in light of MH (Bangladesh), the extent to which the appellant would have come to the attention of the authorities of Myanmar (if at all) on account of her attendance at demonstrations outside the embassy should also be re-examined.
Grounds 1 and 2
26. Grounds 1 and 2 relate to the appellant’s claim in relation to her sexuality. On behalf of the respondent Ms Nwachuku conceded ground 2 relating to the application of HJ (Iran) in respect of the appellant’s likely behaviour on return to Myanmar and whether she would conceal her sexual identity in order to avoid persecution, or whether that would be a material factor in her so doing.
27. Although Ms Nwachuku initially indicated that the respondent opposed the appeal on ground 1, on closer examination of the Judge’s findings and the observations recorded in the decision on the country evidence before her, Ms Nwachuku, quite properly, did not pursue her opposition further. It was accepted in light of the concession on ground 2 and the other matters in relation to the appellant’s political activities, that the Judge’s conclusions on the country evidence insofar as they relate to these matters can now reasonably be regarded as potentially unsafe. As identified in the permission decision there is potential overlap between ground 1 and ground 2. In addition, the objective evidence indicates that a politically active person’s treatment may be aggravated on account of their sexuality. At [80] the decision states:
“The little objective evidence which is before me about the treatment of members of the LGBTI community in Myanmar is only mentioned in terms of those members of the community being arrested for participation in the anti-regime protests. There is no mention of any issues amounting to persecution or serious harm which they may have with society or the authorities outside of those protests, other than the fact that Myanmar is a conservative, religious society and same sex is illegal punishable with up to 10 years in jail and or a fine. There is no information before me as to the enforcement of that law or how society and the authorities reacted to members of the LGBTI community prior to the protests or indeed since.”
Disposal
28. In light of the errors of law identified above I invited submissions from the parties on the onward disposal of the appeal. In Ms Nwachuku’s submission the matter could properly be retained in the Upper Tribunal for remaking since although further fact finding would be required, it would likely be relatively limited. Mr Richardson submitted that the matter should be remitted to the FTT for rehearing so that the appellant could benefit from the two stage appeal process.
29. After considerable thought and taking into account paragraph 7.2 (b) of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal and the principles in Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC), I am of the view that the nature and extent of the factfinding required is such that remittal for a de novo hearing is the appropriate course of action and that to do otherwise would deny the appellant the benefit of the two stage appeal process.
30. In view of the fact that there will be a de novo hearing, after careful consideration I have not formally preserved findings for the rehearing because I do not wish to metaphorically ‘tie the hands’ of the FTT. I record that the parties agreed the focus of a remake or rehearing should be in respect of the appellant’s future behaviour on return to Myanmar in relation to her political activities and sexuality applying HJ (Iran) and to what extent, if at all, the Myanmar authorities would be aware of the appellant’s attendance at demonstrations in the UK and the relevance of this to any risk to the appellant on return. In my decision not to preserve any findings I observe that the appellant’s past activities (and what it known by the authorities in this regard) are likely in part to inform a decision maker as to the appellant’s likely future behaviour on return to Myanmar.
31. It may, however, be of assistance to the FTT to record some observations arising from my consideration of the decision under appeal and the error of law hearing. Although the respondent has conceded some errors of law at the error of law hearing, it is my view that the Judge overall provided a detailed decision with cogent reasoning. There were a number of adverse credibility findings made on aspects of the appellant’s account as well as some positive findings, such as an acceptance of the appellant’s sexuality and attendance at demonstrations in the UK. Many of the issues which were disputed in the hearing before the FTT were not challenged in the proceedings in the Upper Tribunal. In my view it would be neither attractive nor appropriate for the parties to take a ‘second run’ on those matters which have not been challenged in proceedings in the Upper Tribunal and on which the Judge has reached detailed and well-reasoned findings. In furtherance of the overriding objective it would be expected that the parties do not attempt to relitigate such issues in the absence of further evidence which was not previously before the FTT. The FTT may consider it appropriate to issue directions to the parties prior to a rehearing requesting them to indicate in writing their acceptance of the following unchallenged findings in the decision:
a. The appellant is a low-level supporter of the NGU, CDM and PDF and the treatment she fears upon return amounts to persecution and she is in fear (‘the subjective fear’) because of her political opinion under section 32(2)(b) of the Nationality and Borders Act 2022 - [39].
b. Members of the LGBTQ+ community in Myanmar are seen as different in society and can suffer discrimination - [43] and [44].
c. The appellant is gay and she is a member of a PSG on this basis – [48] and [49]
d. The appellant’s credibility was not damaged as a result of any delay in making her asylum claim and she had brought her claim just 10 days after her arrival in the UK – [52].
e. The appellant has never been arrested or detained for her political activities – [54].
f. The respondent made an error in her interpretation of the arrest warrant – [57]
g. The credibility of the appellant’s account examined at [58] to 63] was “severely damaged and thus the weight which can be attached to the warrant”.
h. The appellant worked as a medical technologist for WHO from 2020 to 2022 – [65].
32. In view of my decision to remit the matter for rehearing in the FTT and to not preserve any findings (for the reasons set out above) I set aside the decision of Judge Hawden-Beal.
Notice of Decision

The appeal is allowed. The decision of the First-tier Tribunal involved the making of a material error of law. The appeal is to be remitted to be heard by a Judge other than Judge Hawden-Beal.

Sarah Grey

Judge of the Upper Tribunal
Immigration and Asylum Chamber

12 June 2025