Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003310

First-tier Tribunal No: PA/57646/2023
LP/07038/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 20th February 2026

Before

UPPER TRIBUNAL JUDGE HOFFMAN

Between

S M NASIR UDDIN
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Z Malik KC of Counsel, instructed by Lawmatic Solicitors
For the Respondent: Ms S McKenzie, Senior Home Office Presenting Officer

Heard at Field House on 10 February 2026

DECISION AND REASONS
1. The appellant appeals with permission against the decision of First-tier Tribunal Judge F-M Cooper (“the judge”) promulgated on 27 March 2025 dismissing his appeal against the respondent’s decision dated 29 September 2023 to refuse his human rights claim.
Anonymity
2. The appellant was granted anonymity by the First-tier Tribunal. However, by the time of the hearing before that tribunal, he no longer sought to pursue his international protection claim, following the change of government in Bangladesh. In these circumstances, there is no longer a need to maintain the anonymity order and, taking into account the strong public interest in open justice, I rescind it.
Background
3. The appellant is a national of Bangladesh. He entered the United Kingdom on 18 June 2016 using a visit visa valid until November 2016. He subsequently overstayed. In November 2018, he claimed asylum on the basis that he had been a member of the Bangladesh Nationalist Party (BNP) between 2011 and 2013, during which time he served as joint secretary of his local ward in Dhaka. He stated that he had been forced to leave Bangladesh because he was wanted by security forces under the control of the Awami League. He left Bangladesh for Malaysia in 2014, remaining there until early June 2016, before briefly returning to Bangladesh, during which time he claims he was attacked by members of the Awami League. The appellant attended a screening interview on 10 December 2018.
4. A delay then followed in the processing of his claim. His substantive asylum interview did not take place until 22 November 2021, and a decision was not made until 29 September 2023. In refusing the claim, the respondent considered that the appellant had been a low‑level member of the BNP and rejected his assertion that he had come to the adverse attention of the Awami League, relying on several credibility issues arising from his account. She also refused his claim on human rights grounds.
The appeal to the First-tier Tribunal
5. The appellant lodged his appeal with the First-tier Tribunal on 4 October 2023. However, by the time it was listed before the First-tier Tribunal on 28 February 2025, the situation in Bangladesh had changed significantly. The Awami League government had been overthrown in August 2024 following a student uprising and replaced by an interim government. As a result, the appellant no longer sought to pursue his asylum appeal. Instead, his appeal focused on Article 8 of the European Convention on Human Rights. He argued that the delay in the consideration of his asylum claim had given rise to an historical injustice such that his removal to Bangladesh would amount to a disproportionate interference with his right to respect for his private life.
6. In dismissing the appeal, the judge accepted at [23] that the appellant had held a senior position within the BNP, but at [25] declined to make findings on whether he had been attacked by the Awami League or whether he would be at risk on return. In relation to Article 8, the judge accepted that the appellant enjoyed a private life in the United Kingdom, although she observed that there was limited evidence as to its nature (see [31]). At [37], the judge found that little weight could be attached to that private life because it had been established at a time when the appellant’s immigration status was precarious. Turning to the alleged historical injustice, the judge found that there was no evidence that the appellant had formed any significant relationships during the period when his asylum claim was pending (see [42]); that it was not possible to speculate on what decision the respondent might have reached had the claim been determined earlier (ibid); and that the delay was neither exceptional nor indicative of a dysfunctional immigration system (see [43]). Finally, the judge held that the case of Patel (historic injustice; NIAA Part 5A) [2020] UKUT 351 (IAC) was irrelevant on the facts of the appellant’s case (see [44]).
The appeal to the Upper Tribunal
7. Permission to appeal was granted by First-tier Tribunal Judge J M Dixon on 19 July 2025 on one ground, which Mr Malik has broken down into two parts:
a. Whether the judge adopted a legally flawed approach to the issue of historical injustice and delay; and
b. Whether the judge erred in holding that Patel was of no relevance?
8. At the hearing, I heard submissions from both advocates, which are recorded in the record of proceedings and are not repeated here. I also had before me the 1,158‑page composite hearing bundle, together with Mr Malik’s skeleton argument dated 5 February 2026.
Discussion – Error of Law
Historical injustice and delay
9. The appellant contends that he would have been recognised as a refugee if the respondent had:
a. considered the correct factual premise that he was a high-profile member of the BNP; and
b. not delayed considering his claim for five years, and his appeal had been heard prior to the change of government in Bangladesh in August 2024.
This, he says, amounts to an historical injustice.
10. In Patel, a presidential panel of the Upper Tribunal gave guidance on the difference between “historic injustice” and “historical injustice”:
a. “Historic injustice” was to be reserved for a class of persons that had been adversely affected by what the British government now recognised as unfair or unjust treatment. In the context of Patel, it was the denial of citizenship in the late 1960s to Gurkhas and the subsequent impact on their family members. Such a case would not depend on the particular interaction between the individual member of the class and the Secretary of State.
b. “Historical injustice” involved an individual suffering as the result of the wrongful operation (or non-operation) by the Secretary of State of their immigration functions. For example, it may arise where (i) the Secretary of State failed to give the individual the benefit of a relevant immigration policy; (ii) the delay in reaching a decision was the result of a dysfunctional immigration system; or (iii) where the Secretary of State had formed the mistaken view about an individual’s activities or behaviour, which led to an adverse immigration decision.
11. In the present case, the appellant’s grounds assert that he has been subjected to an historical injustice for the first and third reasons given in Patel:
a. The respondent failed to give him the benefit of a relevant immigration policy, i.e. she failed to grant him asylum as a senior member of the BNP in accordance with her Country Policy and Information Note Bangladesh: Political parties and affiliation (Version 3.0; September 2020) (“the CPIN”).
b. The respondent’s decision to refuse him asylum was tainted by her mistaken view about his activities, i.e. that he was a low-level rather than high-level member of the BNP.
12. I consider that the clearest way to determine the appellant’s appeal is to address in turn the five factors identified at paragraph 16 of Mr Malik’s skeleton argument, which he submits cumulatively demonstrate the respondent’s wrongful exercise of her immigration functions.
(1) The respondent, when refusing the appellant’s protection claim in 2024, failed to give the appellant the benefit of a relevant immigration policy, namely, the pre-2024 CPIN
13. Mr Malik placed emphasis on the fact that the judge accepted at [23] that the appellant held a senior position within the BNP. He therefore argued that had the appellant’s appeal been heard before the Awami League government was ousted, it would have been allowed on asylum grounds and he would have been entitled to refugee status in accordance with the pre-2024 CPIN. However, the CPIN did not say that every person accepted to be a high-level member of the BNP was to be granted asylum. Instead, it required applications to be considered on a case-by-case basis:
“2.4.7 In general, low-level members of opposition groups are unlikely to be of ongoing interest to the authorities and are unlikely to be subject to treatment that is sufficiently serious, by its nature or repetition, to amount to persecution. Opposition party activists, particularly those whose position and activities challenge and threaten the government and raises their profile, may be subject to treatment, including harassment, arrest and politically motivated criminal charges by the police or non-state actors, which amounts to persecution.
2.4.8 Decision makers must consider whether there are particular factors specific to the person which would place them at real risk. Each case must be considered on its facts with the onus on the person to show that they would be at real risk of serious harm or persecution on account of their actual or perceived political affiliation.” [Underlining added]
14. Accordingly, the fact that the First‑tier Tribunal accepted that the appellant had been a senior BNP member (at least at ward level) does not mean that, had the appeal been decided earlier than August 2024, he would necessarily have been granted refugee status. Reaching such a conclusion would require an unduly speculative assessment, particularly given that the respondent had rejected the credibility of the appellant’s account of the persecutory events he described, and the judge declined to make any findings on that aspect of the case: see [25]. It cannot be discounted that a hypothetical judge hearing the appeal earlier than August 2024 might also have found the appellant’s claim of persecution to be incredible.
15. I also take into account that, in Patel, the Upper Tribunal identified AA v Secretary of State for the Home Department [2007] EWCA Civ 12 as an example of a case in which an historical injustice arose from the failure to afford an individual the benefit of a relevant immigration policy. However, in AA, the appellant was indisputably entitled to, yet did not receive, a grant of exceptional leave to remain as an unaccompanied minor. That situation is materially different from the present case, where the mere acceptance that the appellant was a high‑level member of the BNP was not, in itself, sufficient to warrant a grant of refugee status.
16. In the circumstances, the judge was entitled to find at [42] that it was not possible to speculate as to what the outcome would have been had the claim been considered earlier.
(2) If the respondent had not formed the mistaken view in 2023 as to the level of the appellant’s political activism, he would have been granted leave to remain
17. In Patel, the Upper Tribunal explained that an historical injustice may arise where the respondent mistakenly forms a view about a person’s “activities or behaviour”, leading to an adverse immigration decision: see [46]. In illustrating that principle, the Tribunal referred to Arshan v Secretary of State for the Home Department [2017] EWCA Civ 2009. However, that case concerned allegations of deception made by the respondent. That is materially different from the present case, where the respondent assessed the factual basis of the appellant’s asylum claim and reached conclusions with which the First-tier Tribunal later disagreed. Having considered the authorities, I am unpersuaded that the phrase “activities and behaviour” is intended to encompass a person’s account of their activities in their home country forming part of their asylum claim. Moreover, at [47] of Patel, the Upper Tribunal stated:
“Although not immediately apparent, one way in which this kind of erroneous treatment of an individual can have a bearing on Article 8 proportionality is in an ensuing human rights appeal, as was envisaged by Underhill LJ [in Ahsan]. In such an appeal, the individual would be able to argue that, if the respondent had not formed the mistaken view of their conduct, he or she would have been given leave to remain; and that this should be given weight in the balancing exercise, comparably with how the Court of Appeal, in AA (Afghanistan) etc, spoke of the respondent taking account of past mistakes in deciding whether to exercise discretion in the individual’s favour.” [Underlining added]
However, for the reasons set out above, even had the respondent accepted that the appellant was a high‑level member of the BNP, it does not follow that he would have been granted asylum, given that the respondent also rejected the credibility of his claimed persecution.
(3) The respondent unlawfully and unreasonably delayed making a decision on the appellant’s protection claim for five years, which meant that his appeal could not be heard until 2025
18. As to the delay, the judge found at [43] that no explanation for it had been provided1. However, she went on to conclude that the delay was not “exceptional” and that she did not accept that it resulted from a dysfunctional system.
19. Mr Malik submitted that the delay did not need to be “exceptional”. In my view, his submissions tended to conflate two distinct issues: first, whether delay amounts to a failure by the respondent properly to operate her immigration functions so as to give rise to an historical injustice; and second, whether delay is a factor relevant to the proportionality assessment under Article 8. I am satisfied that the correct test for determining whether delay is unlawful on public law grounds is that set out in R (FH & Others) v Secretary of State for the Home Department [2007] EWHC 1571 (Admin), where Collins J held at [30] that “claims such as these based on delay are unlikely, save in very exceptional circumstances, to succeed and are likely to be regarded as unarguable.” By contrast, for the purposes of Article 8, an “unreasonable” delay may be relevant to the proportionality assessment: see EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41 (per Bingham LJ, as he then was) at [13]–[14].
20. At [30] of FH & Others, Collins J held that a delay would only be unlawful if it “is so excessive as to be regarded as manifestly unreasonable and to fall outside any proper application of the policy or if the claimant is suffering from some particular detriment which the Home Office has failed to alleviate.” It was not suggested before the judge that the respondent had failed to comply with any specific policy governing the processing of asylum claims. Consequently, she was entitled to conclude at [43] that the delay had not been prejudicial to the appellant because it had not produced an inconsistent or unfair outcome.
21. In any event, the judge was entitled to conclude that the delay was insufficient to tip the scales of the Article 8 balance in the appellant’s favour. In EB (Kosovo) at [14]–[16], Bingham LJ identified three ways in which delay may be material to an Article 8 claim: first, an applicant may develop stronger personal and social ties during the period of delay; second, any sense of impermanence attached to a relationship formed while the person’s immigration status is precarious may diminish over time; and third, prolonged delay may reduce the weight ordinarily afforded to the public interest in maintaining effective immigration control. In the present case, however, the judge expressly considered these factors at [40]–[42] and was entitled to conclude that there was no evidence that the appellant had formed any significant relationships in the United Kingdom during the relevant period. It is also relevant that, as noted at [31], there was in general limited evidence of any private life before the Tribunal.
22. To the extent that Mr Malik emphasised that in EB (Kosovo) the four‑and‑a‑half‑year delay – which was shorter than the delay in the present case – contributed to EB succeeding on Article 8 grounds, that case is readily distinguishable. The relevance of the delay in EB (Kosovo) did not arise from changes in country conditions by the time the asylum claim was decided. Rather, the prejudice lay in the fact that the delay meant EB’s claim was determined only after he had turned 18, depriving him of the opportunity to obtain exceptional leave to remain as an unaccompanied minor – status which would have put him in a position to apply for further leave to remain. That is materially different from the present case, where it cannot be said, without engaging in an unrealistically speculative exercise, that the appellant would have been granted asylum had his claim been determined sooner.
23. Mr Malik also relied on FH & Others at [27], where Collins J expressed concern about a five‑year delay in considering an initial human rights application. However, Collins J did not find that delay to be unlawful.
(4) If the First-tier Tribunal had heard the appellant’s appeal prior to the change of government in 2024, his appeal would have been allowed on the finding that he was a high-profile member of the BNP and on the objective evidence in the pre-2024 CPIN
24. The first difficulty with this aspect of the appellant’s case concerns the timing of the respondent’s decision. Had the delay in considering his claim resulted in the respondent’s decision being taken only after the fall of the Awami League government, and had the respondent then refused the claim solely because of the change in country conditions, one could understand why the appellant might feel aggrieved (although that would not, of itself, amount to an historical injustice: see, for example, EB (Kosovo) at [13]). But that is not what occurred here. The respondent made her decision on 29 September 2023, at which point the Awami League remained in power. As set out above, the respondent refused the claim for two reasons: first, because she considered the appellant to have been only a low‑level member of the BNP; and second, because she rejected as incredible his account of persecution by the Awami League.
25. The appellant was, in any event, able to lodge his appeal with the First-tier Tribunal on 4 October 2023, several months before the Awami League was removed from power. Even if he had been able to lodge his appeal sooner, the listing of the hearing was still a matter outside the respondent’s control. Moreover, attempting to speculate about the outcome of any appeal had it been listed prior to August 2024 is a hopeless task. There are numerous reasons for this, three of which are as follows:
a. The appellant has not identified what would have constituted a reasonable period for the respondent to consider his asylum claim. As Ms McKenzie submitted, it is not for the courts to impose their own time limits on executive decision-making: see FH & Others at [11]. In these circumstances, it is impossible to determine when the respondent ought to have made a decision, when the appellant would then have lodged any appeal, how long it would have taken to list, or whether any such appeal would have been heard before or after the fall of the Awami League government.
b. Mr Malik submitted that the presenting officer did not cross‑examine the appellant about his membership of the BNP. That is likely because the appellant was no longer pursuing his asylum appeal. Consequently, the fact that the judge accepted that the appellant was a senior member of the BNP does not mean that a different judge, hearing the substantive asylum appeal and faced with a respondent actively challenging the appellant’s evidence, would necessarily have reached the same conclusion.
c. It is impossible to predict what findings a judge would have made on the appellant’s claim to have been attacked by the Awami League, which was disputed by the respondent.
26. Again, the judge was entitled to find at [42] that it was not possible to speculate on what might have happened with the appellant’s case were it decided sooner.
(5) There was a wrongful operation by the respondent of her immigration functions, which prejudiced the appellant in a significant manner
27. This point is, in substance, contingent upon the success of the others. It is therefore unnecessary for me to repeat my findings above.
28. Accordingly, to the extent that it is implied at [44] that there had been no wrongful operation by the respondent of her immigration functions, I am satisfied that the judge was entitled to reach that conclusion.
Whether the judge erred in holding that Patel was of no relevance
29. The short answer to this is: no.
30. At [44], the judge said as follows:
“I was referred to Patel (historic injustice; NIAA Part 5A) India [2020] UKUT 351 (IAC) (25 November 2020) and in particular Paragraph 3 of the headnote. This deals with cases of historic injustice, where the individual has suffered as a result of the wrongful operation (or non-operation) by the Secretary of State of her immigration functions. I am not persuaded that this case is relevant to the facts of the case before me.” [Emphasis as in the original]
31. It can be implied from that passage that the judge was not satisfied on the evidence that there had been any wrongful operation by the respondent of her immigration functions. As already explained, she was entitled to reach that view: the material before her did not demonstrate that the appellant had suffered an historical injustice. In particular, at [42] she held that it was not possible to speculate about the outcome had the appellant’s claim been considered earlier, and at [43] she found that the delay had not rendered the respondent’s decision inconsistent or unfair. In these circumstances, I am satisfied that the judge did not materially err in her treatment of Patel, as her reasoning makes clear that no historical injustice was established.
Conclusion
32. I am satisfied that the judge was plainly entitled to decide the appeal as she did. On any reasonable view of the case, the appellant had suffered no prejudice as the result of a wrongful operation by the respondent of her immigration functions. By the time of his appeal hearing, even the appellant accepted that there was no risk of harm to him in Bangladesh. It was left unsaid why the appellant still wished to remain in the United Kingdom rather than return to Bangladesh and resume his political activities there now that the Awami League had been deposed. His Article 8 claim was, therefore, entirely predicated on his claim that he should have been granted refugee status that even he acknowledged he no longer required.
33. Ultimately, it was open to the judge to take into account that there was limited evidence of any private life established by the appellant in the United Kingdom, and that such private life had been formed while his immigration status was precarious, and therefore attracted little weight: see [31] and [37]. The judge was also entitled to conclude, at [39]–[42], that notwithstanding the length of time taken to determine the asylum claim, there was no evidence that the appellant had formed any significant relationships during that period, and that his case could be distinguished from EB (Kosovo). The judge therefore made no error of law in dismissing the appellant’s Article 8 appeal.
Notice of Decision
The appeal is dismissed.

M R Hoffman

Judge of the Upper Tribunal
Immigration and Asylum Chamber

12th February 2026