Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-004778

First-tier Tribunal No: PA/53314/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
6th February 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE SINGER

Between

SB (BANGLADESH)
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Rafi, instructed by Gigalegal Solicitors
For the Respondent: Ms Kaerthy, Senior Presenting Officer

Heard at Field House on 13 January 2026

Anonymity

Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him, any of his witnesses or any member of his family. This direction applies to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings

DECISION AND REASONS

1. SB is a national of Bangladesh, aged 25, who appeals with permission granted by Upper Tribunal Judge Reeds, against the decision of the First-tier Tribunal (“the FTJ”) dated 2 September 2025 (“the decision”) to dismiss his appeal against the decision of the Respondent on 18 January 2024 to refuse his protection claim (“the refusal letter”).

2. The Appellant entered the UK on 16 February 2022 on a student visa and claimed asylum on 21 July 2022. His claim is based on his father’s political involvement with the Bangladesh Nationalist Party (“BNP”), whom he says held a vice‑presidential position in a local ward committee. He asserts that his father was targeted over many years by Awami League members, particularly the two individuals named at paragraphs 3 and 4 of his witness statement before the First-tier Tribunal, and that relatives were violently attacked. The Appellant claims that he was attacked in 2018 and chased in 2020, and that his father went into hiding. He claims false allegations have been brought against his father. He states that he left Bangladesh in fear for his life and would be at risk of being killed by Awami League members on return. He relied on various documents including a BNP committee list, police documents, a 2018 court complaint, letters from an advocate in Bangladesh, and press and human rights material concerning political violence and alleged targeting of BNP activists and their families.

3. In the decision the FTJ dismissed the appeal on all grounds. The FTJ accepted the Appellant’s identity and nationality and found that, applying s.32(2) of the Nationality and Borders Act 2022, the Appellant had a characteristic capable of giving rise to a fear of persecution and, at [18], appeared to make a finding that he did in fact fear such persecution. However, she made extensive adverse credibility findings.

4. The FTJ found that the Appellant had embellished his account of the 2018 attack; attached limited weight to the documentary evidence, referring to the prevalence of fraudulent documents in Bangladesh; and noted there was no credible evidence that the Appellant’s father had applied through a lawyer to the interim government to have the criminal charges against him withdrawn. The FTJ found inconsistencies in the evidence concerning family circumstances and SB’s claimed lack of contact with his father. She noted the absence of corroborative evidence demonstrating his father’s current BNP role in 2025. The FTJ noted a lack of corroborative evidence in particular regarding the claimed attack on his relatives and no statement from his father. The FTJ found that the Appellant had given inconsistent evidence regarding whether he had any brothers. The FTJ also found that while he used a student visa to enter the UK, he never actually had any intention to study.

5. The FTJ concluded that the Appellant had fabricated his claim; that there was no credible evidence that his father remained in a prominent position in the local branch of the BNP, that there was no ongoing interest in him from the Awami League; that the interim government in Bangladesh provided sufficient protection; and that the Appellant had no political profile. She rejected his risk on return, humanitarian protection, and Article 2/3 claims, and found no very significant obstacles to integration nor any disproportionate interference with Article 8 rights.

6. The Appellant advanced four grounds:

i. The Appellant contends that the FTJ erred by applying s.8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 at the wrong stage of the structured test under s.32 of the Nationality and Borders Act 2022, conflating the subjective and objective elements.

ii. The Appellant contends that the FTJ erred by making irrational and unreasoned credibility findings, contrary to the requirement to consider evidence holistically. The Appellant says that the FTJ wrongly treated the 2018 attack as embellished, failed properly to analyse the documentary evidence, placed undue weight on minor inconsistencies, and unfairly speculated regarding the use of the student visa.

iii. The Appellant contends that the FTJ erred by failing to make a proper assessment of sufficiency of protection following the change of government: It is argued that the FTJ failed to engage with up‑to‑date country evidence concerning political volatility following the 2024 collapse of the Awami League government, and misdirected herself in concluding that the interim government could provide protection to the standard in Horvath v SSHD [2000] UKHL 37.

iv. It is argued that the FTJ failed to apply anxious scrutiny to the risk on return, particularly in light of evidence of continuing violence by Awami League supporters and the alleged inability of the interim government to control non‑state actors.

7. Upper Tribunal Judge Reeds granted permission to appeal on Ground 2, finding it arguable that the FTJ failed to assess the Appellant’s documentary evidence other than by relying on a general observation that false documents are easily obtainable in Bangladesh. UTJ Reeds observed that several documents were arguably relevant to past incidents involving the Appellant and his father. The UTJ also considered that it was arguable that the FTJ did not engage with the updated country evidence set out in the schedule at pages 6–13 of the Appellant’s bundle. UTJ Reeds observed that the s.8 challenge formed only one part of the credibility findings and would not be material unless the other grounds succeeded.

8. The Respondent submitted in her Rule 24 response that the FTJ directed herself appropriately and reached findings that were reasonably open to her. On Ground 1, the Respondent agrees with the grant of permission that any issue concerning the placement of s.8 considerations would not be material unless other grounds succeeded. It was argued that the FTJ assessed the evidence holistically. On Ground 2, the Respondent contended that the FTJ was entitled to find that the Appellant had exaggerated elements of the 2018 incident, relying on omissions in earlier accounts. It was argued that the FTJ was not required to address every document individually and that she expressly stated she had considered all the material before her. On Ground 3, the Respondent submitted that the FTJ made specific reference to relevant country material and that her conclusions regarding the interim government's capacity and the Appellant’s lack of political profile were reasonably open to her. On Ground 4, the Respondent argued that the FTJ considered the background evidence, the Appellant’s circumstances, and the political situation, and that the grounds amounted only to disagreement with findings properly open to her.

The submissions at the hearing on 13 January 2026

9. At the error of law hearing, Mr Rafi relied upon the four grounds of appeal, but commenced with Ground 2, noting the observation of UTJ Reeds that Ground 1 would not be material unless the other grounds succeeded, which he did not seek to resile from. He submitted that the FTJ’s credibility findings were irrational and failed to consider the evidence holistically. He argued the FTJ’s reliance on generalised evidence about the prevalence of fraudulent documentation in Bangladesh was impermissibly broad, and contended that no specific indication existed that the Appellant’s documents were fraudulent. The FTJ was said not to have applied the principles in Tanveer Ahmed [2002] Imm AR 318. The FTJ’s observation that there was no evidence of an application to withdraw the criminal charges post‑change of government was not, counsel submitted, a proper basis for attaching limited weight to the court/police documents. Counsel further submitted that the finding at [19]—that the Appellant had embellished the 2018 attack—was irrational given the Respondent’s acceptance of the fact of that attack. While there were discrepancies, Mr Rafi argued that credibility is not “a seamless robe”, relying on WAS (Pakistan) [2023] EWCA Civ 894 and Chiver (10758), 24 March 1994. With regard to Ground 3 Mr Rafi submitted that the FTJ misdirected herself in assessing sufficiency of protection, relying upon a CPIN from November 2023, pre-dating the August 2024 change in regime, and on an August 2024 report of limited utility. The FTJ, he contended, did not adequately evaluate the Appellant’s more recent country materials, including documents at pp.176–183 and 187–190 of the composite bundle, which post‑dated the December 2024 CPIN. Proper consideration of these materials, counsel argued, could not sustain the FTJ’s conclusion that the Horvath standard was met. Mr Rafi described Ground 4 as parasitic on Ground 3. He argued that the FTJ failed to consider whether the interim government could, in practice, prevent persecution by non‑state actors or remove individuals aligned with the former ruling party. Reliance was placed on the need to assess “practical realities” given the persistence of Awami League elements and the lower standard of proof applicable to risk assessments. With regard to Ground 1 Mr Rafi submitted that the FTJ erred in law by conducting its s.8 credibility assessment at the wrong stage of the statutory framework under s.32 NABA 2022. At [18] the FTJ found the Appellant “does in fact fear persecution”, whereas her later reliance on Section 8 at [32] was said to conflate the JCK test and rendered her reasoning inconsistent. Even if ultimately immaterial, counsel submitted that the point was of public importance and ought to be determined.

10. For the Respondent, Ms Kaerthy submitted that the threshold for demonstrating perversity was very high. The FTJ, she said, did not depart from the acceptance of the 2018 attack but was entitled to find that the Appellant exaggerated aspects of the incident in oral evidence. She relied on inconsistencies between that oral account and earlier accounts. On documentary evidence, she submitted that the FTJ did consider the documents and applied appropriate weight, having regard to the CPIN evidence concerning document fraud in Bangladesh. The FTJ’s observation regarding the absence of evidence of steps taken to withdraw the criminal charges was said to be a further relevant consideration. She accepted that the phrasing at [18] did not fully align with the approach in JCK but argued that any error was immaterial provided the objective assessment resulted in the claim failing. With regard to Grounds 3 and 4, it was submitted that the FTJ undertook a proper assessment. She argued that there was no challenge to the finding at [28] that politically motivated violence affects only a small proportion of the population. The FTJ, Ms Kaerthy argued, had proper regard to the December 2024 CPIN and to reforms within the interim government, including police restructuring; and the FTJ was not required to address every country document; even if she had, it was argued, her conclusion would have been the same, because the background evidence showed police intervention to protect victims and continued political activity by the BNP. Ms Kaerthy argued that the Appellant lacked political profile, his family remained in Bangladesh without difficulty, and he had not demonstrated risk on return.

Legal principles

11. I remind myself of what was said by Lady Hale at paragraph 30 of SSHD v AH (Sudan) [2007] UKHL 49. What was said there about the restraint which must be exercised on appeal has been repeated in other cases, including HA(Iraq) and others v SSHD [2022] UKSC 22 at [72]. The approach I adopt to the First-tier Tribunal’s findings reflects what was said by Lewison LJ at [2] of Volpi v Volpi [2022] EWCA Civ 464:

i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.

ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.

iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.

iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.

v) An appeal court can therefore set aside a judgment on the basis that the FTJ failed to give the evidence a balanced consideration only if the FTJ's conclusion was rationally insupportable.

vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.

Analysis

12. Given the nature of the grant of permission, and the order in which submissions were made to me, it makes sense to determine grounds 2, 3 and 4, before considering Ground 1.

Ground 2

13. There is no requirement for the FtT to rehearse every detail or issue raised. I remind myself that in Budhathoki (reasons for decisions) [2014] UKUT 00341 (IAC), the Upper Tribunal held:

"It is generally unnecessary and unhelpful for First-tier Tribunal judgments to rehearse every detail or issue raised in a case. This leads to judgments becoming overly long and confused and is not a proportionate approach to deciding cases. It is, however, necessary for judges to identify and resolve key conflicts in the evidence and explain in clear and brief terms their reasons, so that the parties can understand why they have won or lost".

14. Looking at the decision as a whole, and applying the above principles, I am not satisfied that the overall credibility findings were irrational or unreasoned, or that they demonstrate that the FTJ failed to consider the evidence holistically. I remind myself that particular passages in a decision should not be analysed as though they emanated from a Parliamentary draftsman: Y v SSHD [2006] EWCA Civ 1223, per Keene LJ, at [24].

15. The FTJ noted that the Appellant, in his oral evidence, said that, after bystanders protected him from the 2018 attack and he ran away, two of his assailants had followed him but did not harm him. In my judgment, looking at the decision as a whole, the FTJ gave adequate and intelligible reasons at [19] for why the Appellant was said to have embellished the 2018 attack, namely that he had not mentioned being followed after the incident by two men who had tried to physically harm in in the attack, either (i) in interview or (ii) in the report of the incident made by the Appellant and his father. In doing so, in my judgment, she was not improperly departing from the Respondent’s concession in the refusal letter that the 2018 attack took place but rather responding to a development in the oral evidence which she was entitled to have regard to.

16. As to the complaint that the FTJ did not properly consider the evidence, I am satisfied from [17] and [29] of her decision that she made it clear that she was considering all of the material in the round. There is no reason to think that the FTJ was unaware of Tanveer Ahmed, a starred decision of the Immigration Appeal Tribunal, or that she failed to apply it. In Tanveer Ahmed the following principles were set out after a careful assessment of the case law.

"38. In summary the principles set out in this determination are:

1. In asylum and human rights cases it is for an individual claimant to show that a document on which he seeks to rely can be relied on.

2. The decision maker should consider whether a document is one on which reliance should properly be placed after looking at all the evidence in the round.

3. Only very rarely will there be the need to make an allegation of forgery, or evidence strong enough to support it. The allegation should not be made without such evidence. Failure to establish the allegation on the balance of probabilities to the higher civil standard does not show that a document is reliable. The decision maker still needs to apply principles 1 and 2."

17. In my judgment the FTJ was entitled to have regard to the CPIN on Documentation when assessing whether the material put foward was reliable, but I am satisfied that this was not the only factor she had to regard to in this assessment. The last sentence of paragraph 21 demonstrates she also relied on the lack of evidence of seeking to have the charges dismissed as an adverse credibility factor; and I am further satisfied that she also was, perfectly properly, taking into account her other adverse credibility findings when assessing the documentary evidence in the round. I find that the complaint made regarding (i) the FTJ’s findings about the student visa (at [32]-[34]), and (ii) what is said to be a “minor inconsistency” regarding the use of the term “brother” versus “cousin brother” (at [31], [37], are both no more than disagreements about weight. I also note that it is not pleaded in the grounds that the FTJ was wrong when she recorded that Appellant said “brother”, as opposed to “cousin brother” at that point in his oral evidence. It may be that a different Judge might not have attached weight to that part of the evidence, but, in my judgment, the findings in both regards were reasonably open to the FTJ to make and were adequately explained and anchored to the other adverse credibility findings.

18. In my judgment the FTJ at [34] gave adequate and sustainable reasoning for why she found the Appellant was not credible about his intentions regarding his student visa and at [36] that he had fabricated his asylum claim. These findings were open to her on the evidence and the complaint in the grounds is no more than disagreement.

Grounds 3 and 4

19. Looking at the decision as a whole, I am not satisfied that the FTJ misdirected herself as to the effect of a change in government in relation to the issue of state protection, or that she failed to adopt the approach of ‘anxious scrutiny’ in relation to the issue of risk on return.

20. Paragraph 20 of the grounds for permission to appeal to the Upper Tribunal argues that the FTJ failed to grapple with the fact that it is “highly unlikely”, within a year of coming into power, for the interim government of Bangladesh to effectively be “able to remove all threatening individuals within the state infrastructure of Bangladesh”. However that is not the correct test for sufficiency of protection.

21. In Horvath [2001] 1 AC 489, Lord Hope said that the standard of protection to be applied is

“not that which would eliminate all risk and would thus amount to a guarantee of protection in the home state. Rather it is a practical standard which takes account of the duty which the state owes its nationals…It is axiomatic that we live in an imperfect world. Certain levels of ill-treatment may still appear even if steps to prevent this are taken by the state…”.

Lord Craig endorsed the formulation of Stuart Smith LJ in the court below on the level of protection required and said

“In my judgment there must be in force in the country in question a criminal law which makes violent attacks by the persecutors punishable by sentences commensurate with the gravity of the crimes. There must be a reasonable willingness by the law enforcement agencies, that is the police and courts, to detect prosecute and punish offenders”.

However, in relation to unwillingness, he pointed out that inefficiency and incompetence by the police and law enforcement officials are not the same as unwillingness; there may be various sound reasons why criminals are not brought to justice; and the corruption, sympathy and weakness of some individuals in the system of justice does not mean that the state is unwilling to afford protection.

22. In R (Bagdanavicius) v SSHD [2003] EWCA Civ 1605, at para. 55(2)-(6) of his judgment, with which Lord Woolf CJ and Arden LJ agreed, Auld LJ summarised the applicable principles as follows:

"(2) An asylum seeker who claims to be in fear of persecution is entitled to asylum if he can show a well-founded fear of persecution for a Refugee Convention reason and that there would be insufficiency of state protection to meet it; Horvath.

(3) Fear of persecution is well-founded if there is a 'reasonable degree of likelihood' that it will materialise; R v. SSHD, ex p. Sivakumaran [1988] AC 956, per Lord Goff at 1000F-G;

(4) Sufficiency of state protection, whether from state agents or non-state actors, means a willingness and ability on the part of the receiving state to provide through its legal system a reasonable level of protection from ill-treatment of which the claimant for asylum has a well-founded fear; Osman [Osman v United Kingdom (1998) 29 EHRR 245], Horvath, Dhima [R (Dhima) v Immigration Appeal Tribunal [2002] EWHC 80 (Admin)].

(5) The effectiveness of the system provided is to be judged normally by its systemic ability to deter and/or to prevent the form of persecution of which there is a risk, not just punishment of it after the event; Horvath; Banomova [Banomova v Secretary of State for the Home Department [2001] EWCA Civ 175], McPherson [McPherson v Secretary of State for the Home Department [2001] EWCA Civ 1955] and Kinuthia [Kinuthia v Secretary of State for the Home Department [2001] EWCA Civ 2100].

(6) Notwithstanding systemic sufficiency of state protection in the receiving state, a claimant may still have a well-founded fear of persecution if he can show that its authorities know or ought to know of circumstances particular to his case giving rise to his fear, but are unlikely to provide the additional protection his particular circumstances reasonably require; Osman."

23. In my judgment there is nothing before me to point to the FTJ being unaware of these principles or departing from this approach, when she considered sufficiency of protection and risk on return.

24. It was not incumbent upon the FTJ to set out chapter and verse on each and every piece of country information evidence before her. At [26-29] the FTJ did specifically refer to the supplementary bundle and some of the background evidence within it and other country information evidence:

“In the Appellant’s supplementary bundle, it states that BNP members and their families continue to face serious risks of persecution, harassment, and targeted violence, underscoring the volatile political environment in Bangladesh. Reliance is placed on The Odhikar – Quarterly Human Rights Report for April-June 2025 dated 24 July 2025 which states that the Awami League continues to be involved in violent incidents and political thuggery. I take into account the press articles referred to in the bundle.”

25. The FTJ noted and was in my judgment well aware of the evidence that the Awami League continued to be involved in violence since the interim government in Bangladesh had taken over in August 2024. The FTJ also noted A’s legal representative’s submission on the political landscape since the interim government took over (as can be seen from [30]). She made specific reference to the Odhikar Quarterly Human Rights Report, April-June 2025 as set out above, from which parts of the report were quoted in the Appellant’s ‘Note on current situation in Bangladesh’ (“the Note”) in the supplementary bundle (CB176-183). There was evidence in the accessible hyperlinks that the authorities were taking the violence seriously and were deploying resources to address it and ensure that those responsible faced justice, (and I also note that some of the articles were not in English) for example:

(a) The article cited at paragraph 3(i) of the Note, “‘Awami League men vandalise BNP leaders’ homes, offices in Narail’ Prothom Alo (27 July 2025)”, stated, inter alia that, “both Khokon and his son face multiple charges in Narail’s Lohagara Police Station and Dhaka’s Jatrabari Police Station. … Residents of Ula village expressed concern over the disruption caused by Khokon Chowdhury, saying he has brought unrest to the area since his recent release from jail in connection with a sabotage case. …Efforts to get a statement from the accused were unsuccessful, as they have gone into hiding following the incident. … Shariful Islam, officer-in-charge (OC) of Lohagara Police Station, said an investigation is underway and legal measures will be taken”.

(b) The article cited at paragraph 3(ii) of the Note, “‘Over 50 injured in AL-BNP clash in Habiganj’ The New Age BD (25 April 2025)”, stated inter alia that, “Ajmiriganj police station officer-in-charge ABM Maidul Hasan told New Age that they reached the spot after being informed by local people and brought the situation under control at about 10:00am. …. ‘A team of police was also deployed in the area to avert further clash,’ he said, adding that no written complaint was filed with the police station till Friday afternoon.”

(c) The articles cited at paragraph 3(iii) and 3(xv) of the Note were not in English when the links are accessed.

(d) The article cited at paragraph 3(iv) of the Note, “‘10 hurt as AL, BNP clash in Faridpur; The Daily Star (04 April 2025)”, stated inter alia that, “Confirming the incident Md Ataur Rahman, officer-in-charge of Saltha Police Station, said on information police went to the spot and brought the situation under control. ... Additional police have been deployed in the area to prevent further violence.”

(e) The article cited at paragraph 3(v) of the Note, “AL, BNP supporters clash in Faridpur, 30 houses vandalised’”, stated inter alia, “Later, members of the joint forces, including the police, army and the Rapid Action Battalion (RAB) reached the village and brought the situation under control. … Faridpur Kotwali police station officer-in-charge (OC) Asaduzzaman said additional police forces have been deployed in the area. No complaint has been filed over the incident so far.”

(f) The article cited at paragraph 3(vii) of the Note, “25 hurt in BNP factional clash Hatia’ The Daily Star (11 June 2025)”, stated inter alia, “Upon information, Hatia police and Navy personnel went to the spot and brought the situation under control. ... At least, 15-16 people were injured in this incident. Additional police have been deployed at the scene.”

(g) The article cited at paragraph 3(x) of the Note, “‘Case against Hasina withdrawn in Tangail within 2 days’ bdnews24.com (21 May 2025)”, was in fact an article about the BNP ordering its own people to drop a legal case against Sheikh Hasina, and if anything pointed to some senior individuals trying to make the political situation less volatile.

(h) The article cited at paragraph 3(xi) of the Note, “‘Key Bangladesh party protests against govt’ Dawn (22 May 2025)”, was about the BNP protesting against the caretaker government, but there was no evidence in that article that the caretaker government responded oppressively to this in consequence.

26. The FTJ’s finding that there was sufficiency of protection to the relevant standard was one that was reasonably open to her on the evidence, in my judgment.

27. Because Grounds 2, 3 and 4 are not made out, I am not satisfied that Ground 1 can succeed, but I address it on its own merits for completeness’ sake.

Ground 1

28. In my judgment the Appellant’s failure to express his fear of the Awami League upon entry to the UK with a student visa was also a factor to which the FTJ was entitled to have regard when assessing credibility. The Respondent at paragraphs 16-17 of the refusal letter noted that the Appellant, at part 3.4 of his screening interview, said that he had decided he was going to claim asylum before he applied for his student visa (see pages 60 and 263 of the consolidated bundle). He did not however claim asylum on arrival. The refusal letter stated:

“This impacts your claim because you state that you decided you were going to claim asylum before you applied for your student visa (SCR 3.4). It is considered that applying for a student visa with the intention of claiming asylum in the United Kingdom is a behaviour designed to mislead. This is because you did not claim asylum at the earliest opportunity, despite having ample time to present yourself to an immigration officer.”

In my judgment a fair reading of the determination points to the FTJ assessing the s.8 factor in accordance with the principles in JT (Cameroon) v SSHD [2008] EWCA Civ 878, as part of her global assessment of credibility, and not as either determinative or as a starting point; indeed, it came towards the end of her findings.

29. In JCK (s.32 NABA 2022) (Botswana) [2024] UKUT 00100 (IAC) it was held in the headnote:

“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”.

30. Mr Rafi argues that the final sentence in paragraph 18, where the FTJ found that the Appellant subjectively “does in fact fear persecution”, is on its face confusing and not consistent with the later findings rejecting the Appellant’s credibility and the finding that he had fabricated his asylum claim.

31. In my judgment, however, assessing whether an applicant has a subjective fear is slightly different to assessing whether past events in fact occurred. It was stated at [15]-[17] in JCK:

“15. Section 32(2)(b) requires the decision-maker to also determine, on the balance of probabilities:

(b) whether the asylum seeker does in fact fear such persecution in their country of nationality (or in a case where they do not have a nationality, the country of their former habitual residence) as a result of that characteristic.

(See also section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (asylum claims etc: behaviour damaging to claimant's credibility).)

16. Given the reference here to section 8 AITCA 2004, decision makers could be forgiven for thinking that this question is all about the credibility of the claim. Certainly, this sub-section was, during the Act's passage through parliament, widely trailed as applying the civil standard to claims of past persecution, and in its published guidance Assessing credibility and refugee status in asylum claims lodged on or after 28 June 2022 (Version 13.0) the Home Office instructs caseworkers that "this is an assessment of the material facts which the claimant is presenting to you". That is not however what sub-section 32(2)(b) says.

17. The provision simply requires the decision maker to consider whether the asylum seeker "does in fact fear": it is what is otherwise referred to as the 'subjective fear' test. Assessing that fear is a discrete exercise from assessing whether past events occurred. Consider a claimant who has been horribly persecuted in the past but whose persecutors have now fallen from power: he could prove, on balance, that the material facts he has presented are true, but he may no longer in fact be afraid. Conversely it is well understood in this jurisdiction that claimants who are "in fact afraid" may seek to exaggerate, or even falsify, past events in order to prove their case. There will be cases in which the acceptance or rejection of historical facts presented by a claimant will inform the decision on whether or not he is "in fact afraid". As it happens, this is one of them. That is not however always the case. Section s32(2)(b) asks decision-makers to consider a different question, and in doing so relegates the matter of 'credibility' to where it belongs in the refugee risk assessment: it can be relevant, but will not on its own be determinative.”

[emphasis added]

32. At paragraph 25 of JCK it was stated:

“25. The proper approach to s32 is then to address each question expressly and sequentially. If a matter is agreed, that simply needs to be recorded by a single sentence. Addressing each question under a separate heading will aid decision-makers in identifying matters in issue between the parties, and setting out competing arguments and conclusions. Moving between the varying standards is an intellectual exercise which will require discipline, but it does not, cannot, change what decision-makers have always done in taking an ultimate, holistic view of the evidence. It is not possible to evaluate subjective fear – and in many cases Convention ground - without having some regard to the context in which that fear is said to arise. Decision makers will therefore need to consider the country background material twice over. In evaluating the matters raised in s32(2) that material will provide vital context to deciding whether, on a balance of probabilities, the tests are met. The decision-maker must then revisit that material afresh when considering s32(4), and apply the lower refugee standard of proof to the question of risk. This may prove laborious, but it is necessary in order to avoid conflating the matters of subjective fear and actual risk, or conversely, to avoid overlooking important context.”

33. I note that immediately after the comment at [18] that the Appellant “does in fact fear” such persecution, at [19] the FTJ detailed what past persecution she accepted had occurred (the 2018 attack). In my judgment the FTJ did not materially err in stating that the Appellant had a subjective fear, given that she accepted that he had been attacked in 2018 (as did the Respondent) by the Awami League, (see [31] and [36]), but found inter alia that he had embellished the account. What fears the Appellant subjectively held, were found to be limited and to have been exaggerated, and were held in any event to not be objectively well-founded, given there was now sufficiency of protection available from the interim government. It is clear from a fair reading of the determination as a whole, that the FTJ roundly rejected the credibility of the Appellant and gave sufficiently detailed reasons for doing so, and she did not in reality improperly conflate any parts of the JCK assessment.

34. In summary, the findings of fact and the conclusions on risk on return were reasonably open to the FTJ on the evidence before her, and the FTJ did not materially err in law.

Notice of Decision

The decision does not contain a material error of law.

The appeal is dismissed.

R Singer

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
30.1.26