Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003601

First Tier Tribunal No: PA/60196/2024
LP/08008/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 24 February 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE BAGRAL

Between

NJ
(anonymity order made)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms G Balac, Counsel
For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer

Heard at Field House on 17 November 2025

DECISION AND REASONS
Background to the Appeal
1. The Appellant is a citizen of Bangladesh. He appeals with permission against the decision of First-tier Tribunal Judge Harris (“the judge”) dated 20 May 2025 to dismiss his appeal on protection and human rights grounds.
2. The Appellant arrived in the UK in September 2022. He claimed asylum on 28 March 2023. The primary basis of his claim is that he faces politically motivated and false criminal charges in Bangladesh as a BNP member.
3. Although the Respondent accepts the Appellant was a low-level member of the BNP, she did not accept that he was of adverse interest to the Awami League and took issue with the credibility of that claim.
4. At the hearing before the judge the Respondet was represented by a Presenting Officer and the Appellant was represented by Ms Balac. The Appellant gave oral evidence and the decision was reserved. The judge accepted the Appellant was a low-level member of the BNP in Bangladesh and in consequence that three criminal charges had been issued against him; that he was convicted and sentenced in his absence in respect of one charge and that a warrant was issued for his arrest. The judge agreed with the Respondent that the remaining account was not credible and in view of the change of regime in Bangladesh, the judge found the Appellant had not established he had a well-founded fear of persecution on return there.
5. The Appellant applied for permission to appeal to this Tribunal on the principle ground that the judge misapplied the guidance in JCK (Botswana) [2024] UKUT 00100. By her decision of 9 September 2025 Upper Tribunal Judge (UTJ) McWilliam granted permission to appeal in the following terms:
“Notwithstanding the change in government, having found that the appellant has been convicted and sentenced in absentia, arguably for political reasons, the judge arguably inadequately reasoned why he would not be at risk on return. The grounds are diffuse, but I find that what is said at para 18 identifies an arguable error which can be characterised as a reasons challenge. I grant permission on all grounds.”
The hearing before the Upper Tribunal
6. I had before me a composite bundle which included the documents relevant to the appeal. Ms Isherwood confirmed the Respondent had not filed a Rule 24 Response, but the appeal was nonetheless opposed. Having heard submissions from Ms Balac and Ms Isherwood I reserved my decision. It is not necessary to set out the submissions of the representatives here. I shall refer to them when necessary when setting out my reasoning below.
Discussion
7. The matter comes before me to determine whether the FtT’s decision contains an error(s) of law. If I conclude that it does, I must then consider whether to set aside the FtT’s decision. If I set aside the FtT’s decision, I must then either re-make the decision or remit the appeal to the FtT to do so.
8. I have considered the FtT’s decision, the composite bundle, the grounds of appeal, and the submissions made at the hearing before coming to a decision in this appeal.
9. I begin by reminding myself of the following principles. The Supreme Court in HA (Iraq) v SSHD [2022] UKSC 22 reiterated that judicial caution and restraint is required when considering whether to set aside a decision of a specialist tribunal. In particular, judges of the specialist tribunal are best placed to make factual findings. Appellate courts should not rush to find the Tribunal misdirected itself simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v SSHD [2007] UKHL 49 and KM v SSHD [2021] EWCA Civ 693. These principles have been reinforced in many subsequent authorities including Volpi & Anor v Volpi [2022] EWCA Civ 464, at [2-4], Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201, at [26], Yalcin v SSHD [2024] EWCA Civ 74, at [50]-[51], and Gadinala v SSHD [2024] EWCA Civ 1410, at [46]-[47].
10. Having applied the above principles and after careful consideration of the representatives’ submissions, I find the judge’s decision is not vitiated by material error(s) of law for the following reasons.
11. I agree with the observation made by UTJ McWilliam in her grant of permission that the grounds of appeal are diffuse. The grounds to this tribunal have been modified to some extent from those that were put before the First-tier Tribunal, but nonetheless the grounds primarily are critical of the judge’s assessment of the subjective test and his application of the guidance in JCK (Botswana) [2024] UKUT 00100. I will later address UTJ McWilliam’s view that the grounds arguably raise a reasons challenge.
12. I shall first deal with the judge’s assessment of credibility.
13. The grounds as pleaded assert that the judge’s positive credibility findings are inconsistent with his findings that the appellant does not in fact fear persecution and does not have a well-founded fear of persecution. In essence what the grounds attempt to argue is that the judge failed to properly apply the two-stage test mandated by section 32 of the Nationality and Borders Act 2022. The application of these provisions is explained in JCK as follows:
1. Sections 31-36 of the Nationality and Borders Act 2022 apply in an appeal where the claim for international protection was made after 28 June 2022.
2. In an appeal to which s32 NABA 2022 applies, the proper approach is to address each of the questions posed by the section expressly and sequentially.
3. Question 1 is whether, on the balance of probabilities, the claimant has a characteristic which could cause them to fear for one of the five reasons set out in the Refugee Convention. In simple terms: is there a Convention reason?
4. Question 2 is whether, on the balance of probabilities, the claimant “does in fact fear” such persecution. This is the ‘subjective fear’ test.
5. Questions 3-5 are matters of objective evaluation and must each be determined on the lower standard of proof: ‘a reasonable degree of likelihood’. Is it reasonably likely that there is:
• a risk of harm
• an absence of state protection, and
• no reasonable internal flight alternative
14. At [18] of JCK, Upper Tribunal Judge Bruce concluded that in considering Question 2:
“18. The country background material is always going to be relevant here, because it provides context to assessing someone’s claimed fear. If a claimant is from, for instance, a particular ethnic group widely persecuted in his country of origin, that is going to be a relevant consideration when assessing whether or not he is in fact afraid. Again, it is important to remember that this is, at this stage, not an assessment of risk: this is an assessment of whether someone is afraid.”
15. There is no dispute the judge referred to the guidance in JCK and correctly directed himself in law (at [15]). The central tenure of Ms Balac’s submissions are that the judge misapplied that guidance in conflating issues relevant to the subjective test (Question 2) with matters relevant to the objective evaluation (Questions 3-5). Mr Isherwood submitted the judge committed no such error and the grounds are a disagreement with the judge’s findings.
16. I prefer Ms Isherwood’s submissions on this point. I am not satisfied on a holistic reading of the decision that the judge conflated issues relevant to risk in his assessment of credibility.
17. Ms Balac’s grounds refer to the following paragraphs of the judge’s decision which she submits demonstrates the judge’s misapplication of JCK:
“Issue: Fear of persecution as a result of characteristic
…
“19. The respondent attacks the reliability of the documentation produced by the appellant on the basis that country background evidence indicates forgery and falsification in official documentation in Bangladesh is widespread. While I take this into account, I am not persuaded this establishes that any document from Bangladesh should be treated as reliable without further assessment (sic).
…
21. The content of the 2023 letter is consistent with the appellant being a low level member of the BNP. Considering matters in the round, I find I am able to treat it as reliable. That said, I bear in mind that it was written prior to the fall of the Awami League government in 2024.
…
23. The appellant says that three false criminal allegations have been brought against him dating from 2013, 2015 and 2018. The first two allegations were made before the appellant joined the BNP and, on the appellant’s account, the 2013 case has been dismissed with only the latter two cases remaining against him. The appellant produces what he says is case documentation support of this part of his claim. What can be seen from the allegations made in each case is that the appellant is not ascribed any noteworthy leading role in events and is described as part of a large group. If the appellant had any significant leadership political role, I would expect his enemies to make up false allegations against him where he is the focus. That this has not happened, particularly as regards the 2018 allegation, is consistent with him being a low level BNP member. In the circumstances, I am prepared to accept the appellant has produced reliable documentary evidence about facing the three charges claimed.
…
31. The appellant claims that a warrant for arrest was issued against him in February 2023 for non-attendance at trial and that in March 2023 he was convicted and sentenced in his absence for it would appear the 2015 allegation. He has produced case documentary evidence in support about this. I bear in mind that I have accepted above that the appellant has produced reliable evidence about the claimed criminal charges against him although I also found that because of his behaviour I am not satisfied the appellant feared persecution as a result. In the circumstances, I accept there is credible evidence that in 2023 a warrant of arrest has been issued against the appellant and that he was convicted and sentenced in his absence.
…
48. I am not satisfied it is demonstrated that the appellant came to this country in fear of persecution or that since his arrival he has developed a genuine fear of persecution. On the evidence in this appeal I am not satisfied on the balance of probabilities that the appellant does in fact fear persecution in his home country as a result of the characteristic of his political opinion.
…
Issue: Well founded fear?
…
50. Even were the appellant to have the claimed subjective fear, on the basis of the country background evidence which I have already mentioned indicating the significant loss of power and influence suffered by the Awami League in Bangladesh, I am not satisfied that at present there is a real likelihood that Awami League members would target the appellant with serious harm as claimed, that they would influence police or other state officials to ill treat the appellant because of the remaining criminal case matters or that there would be a lack of sufficient state protection available to the appellant.”
18. Ms Balac submits in the grounds as pleaded that in light of the judge’s positive findings that it was not open to the judge to find the Appellant was not in fact afraid and had the judge considered that issue separate to the issue of risk, he ought to have found the Appellant did in fact fear persecution. I have not found this circular submission easy to follow and it is weakened in my view by its failure to adopt a holistic consideration of the judge’s overall findings and the reasons given for them.
19. It is evident from the sub‑headings employed by the judge that he addressed the required questions in a sequential manner. Although he combined Questions 1 and 2, it is neither asserted nor, in the circumstances of this case, does it amount to a material error.
20. At [17] the judge noted that “[t]he central dispute here is whether the appellant fears persecution because he is of adverse interest to the Awami League in Bangladesh”. What follows from [18]-[48] is a detailed analysis of the evidence in consideration of whether that question ought to be answered in the affirmative. That analysis shows that the judge was plainly mindful of the question he was required to answer at this stage, and to what standard of proof, namely, the balance of probabilities.
21. The difficulty with the grounds is that they omit to refer to salient paragraphs of the judge’s decision, and which explain why he ultimately reached the conclusion that the Appellant does not in fact fear persecution notwithstanding the positive findings he made in respect of the claim. At [20] & [22] the judge reasoned why the evidence did not establish the Appellant had an active role in the BNP. After accepting the Appellant had produced reliable evidence of three charges at [23], the judge at [24]-[26] then said this:
“24. It is noticeable that the bringing of the false criminal allegations against the appellant in 2013, 2015 and 2018 did not make him so fear for his safety that he fled Bangladesh soon after the commencement of these cases. That the appellant did not leave Bangladesh until August 2022 weighs against the criminal allegations causing him to fear persecution because of his political opinion.
25. Nor was it the remaining criminal cases that by the appellant's own account made him decide to claim asylum. Rather the appellant now says it was an event that happened after he came to the UK. This again weighs against the cases causing the appellant to fear persecution in Bangladesh.
26. What the appellant says caused him to decide to claim asylum in the UK was the claimed attacked by Awami League members on his father in March 2023. The appellant seeks to explain that this is why he did not claim asylum until that same month and not earlier whilst in the UK.”
22. The judge then proceeded to consider the claimed attack on the Appellant’s father in 2023 and a further attack in 2025, and rejected those claims for the reasons given at [27]-[30] and [40]-[45]. The judge concluded his analysis of the subjective test at [46]-[48] and stated:
“46. On the evidence produced, I find the respondent is right to describe the appellant as a low level member of the BNP. I am prepared to accept that there are the two remaining criminal cases against the appellant and that there has been the issue of an arrest warrant, the claimed conviction and the claimed sentence. However, weighing up the evidence before me, I find the appellant’s claimed fear of persecution by state official influenced by or sympathetic to the Awami League in the circumstances of these cases to lack credibility.
47. I consider the doubts I have about the remaining disputed parts of the appellant’s claim stop me finding them to be credible..
48. I am not satisfied it is demonstrated that the appellant came to this country in fear of persecution or that since his arrival he has developed a genuine fear of persecution. On the evidence in this appeal I am not satisfied on the balance of probabilities that the appellant does in fact fear persecution in his home country as a result of the characteristic of his political opinion.”
23. I am satisfied that, when the judge’s references are considered holistically and in conjunction with the positive findings he made, no inconsistency arises in either his reasoning or his application of the subjective test. At paragraphs [24]–[26], the judge set out clearly why he concluded that the Appellant did not, in fact, fear persecution arising from the criminal proceedings in Bangladesh, noting in particular that the Appellant had neither been compelled to leave the country nor to claim asylum as a consequence of those matters.
24. In her submissions, Ms Balac, in developing the grounds, referred to paragraphs [35]–[38] of the judge’s decision and contended that here the judge had conflated the subjective test with the assessment of risk of harm. Although I note that the grounds themselves do not specifically identify these paragraphs, I am nevertheless not satisfied that any such conflation occurred. In my judgment, the judge was, in these passages, evaluating the background evidence in order to address the question posed at [32], namely: “Is it credible that the appellant fears ill-treatment by the Awami League if the Bangladeshi authorities detain him because of the outstanding criminal cases?” In referring to the background evidence, the judge was, in my view, situating the Appellant’s asserted fear within the wider evidential context—an approach endorsed as relevant in JCK at [18].
25. For these reasons, I am not satisfied that the judge erred in law in rejecting the credibility of the Appellant’s claimed fear.
26. It is this asserted error that was the focus of Ms Balac’s submissions. She did not advance oral submissions on the arguable error in respect of the assessment of risk that UTJ McWilliam identified in her grant of permission. UTJ McWilliam characterised paragraph 18 of the grounds as a reasons challenge. Paragraph 18 of the renewed grounds state as follows:
“18. At paragraphs [19], [21], [23] and [31] the FTTJ explained their reasoning for finding that the Appellant was on the balance of probabilities, politically active and had provided a credible account of the events and false cases he had encountered, giving rise to his fear of persecution from the Awami League.”
27. I find it difficult to characterise this ground as a reasons challenge. In any event, I am not satisfied that the judge’s assessment of risk was inadequately reasoned. The background evidence before the judge was limited. At paragraphs [36]–[38], the judge considered that material (within the context of assessing credibility) and gave reasons for concluding that the reports relied upon by the appellant did not displace the Respondent’s evidence. That evaluation, in my view, was sufficient to support the judge’s alternative conclusion on risk at [50] (set out above). Neither representative drew attention to any evidence before the judge suggesting that, notwithstanding the change in government, the Appellant would face a real risk of serious harm on return in consequence of the criminal cases or the arrest warrant.
28. Consequently for the reasons set out above the Appellant has not established that the First-tier Tribunal’s decision involved the making of an error on a point of law, therefore its decision shall stand. The appellant’s appeal is dismissed.
Notice of Decision
The decision of the First-tier Tribunal did not involve the making of an error on a point of law; its decision stands. The appellant’s appeal is dismissed.

Deputy Upper Tribunal Judge Bagral
Immigration and Asylum Chamber
6 February 2026