Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002417
First-tier Tribunal No: PA/63608/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 4 August 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE WALSH

Between

RA
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr. J Collins, Counsel, instructed by Internations Legal LLP
For the Respondent: Ms. J Isherwood, Senior Home Office Presenting Officer

Heard at Field House on 22 July 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The appellant appeals with permission the decision of the First-tier Tribunal promulgated on 2 March 2026 dismissing his appeal against the decision of the respondent to refuse his protection claim.
2. For the reasons set out at [19] to [43] this appeal is allowed.
Anonymity Order
3. The First-tier Tribunal made an anonymity order in this appeal because the appellant has made a claim for international protection. No party asked for this to be set aside and I consider it appropriate for that order to continue because the public interest in the UK’s compliance with its international obligations and in the confidentiality of the asylum system outweigh the public interest in open justice in this case
Background
4. The appellant is a Bangladeshi national. He arrived in the UK on 10 December 2022 on a student visa and claimed asylum on 25 February 2023 which was refused on 30 April 2024.
5. The appellant claimed he was at risk of persecution/serious harm as result of his political activities as president of the local chapter of Bangladesh Islami Chhatra Shibir (ICS), the student wing of Bangladesh Jamaat-e-Islami (JI). The appellant claimed that as a result of his activities, he was arrested on 26 March 2022 and released the following day on a bribe with a warning to cease all political activities otherwise he would be forcibly disappeared by the police or the Rapid Action Battalion (RAB). The appellant left Bangladesh on 10 December 2022 arriving in the UK the same day. He claimed to have remained politically active. The appellant claimed that following his departure and after the respondent’s refusal of his asylum claim, politically motivated criminal cases were lodged against him as a result of his online activism. Notwithstanding the change in government since his departure, the appellant claims that he remains at risk of persecution/serious harm from state and non/state actors.
6. The appellant also claimed that his removal would breach his Convention rights under article 3 on mental health grounds. The appellant’s bundle before the FtT contained an expert report from consultant psychologist and psychotherapist, Jum Nazmul Hossain, who found the appellant to meet the threshold for Major Depressive Disorder (Severe) and Generalised Anxiety Disorder with features of Post Traumatic Stress Disorder and recurrent suicidal ideation.
7. In the Reasons for Refusal Letter, the respondent stated that she did not accept the credibility of the appellant’s account and in particular did not accept that the appellant was the president of the ICS or that he was wanted by authorities. The respondent also did not accept that the appellant demonstrated that his mental health condition met the article 3 threshold.
First-tier Tribunal Decision
8. At [7] to [10] the FtTJ sets out the procedural history which included a failure to comply with directions and a non-compliance hearing at which the appellant was legally represented by ZYBA Law. The appellant’s bundle and skeleton argument were filed late. ZYBA Law came off record on 26 November 2025, two days before the hearing listed before the FtT. The appellant did not attend the hearing.
9. The FtTJ took the decision to proceed in the appellant’s absence. In respect of that decision the FtTJ says at [10]:
On 26 November 2025, the Appellant’s representatives came off record and the Appellant did not attend the hearing. Ms Aihie appeared for the Respondent. I am satisfied that the Appellant was sent a Notice of Hearing as per Rule 26 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, (‘the Procedure Rules’). Having not received any contact from the Appellant, I determined that it is in the interests of justice to proceed with the hearing under Rule 28(b) of the Procedure Rules.
10. The hearing proceeded by way of submissions on behalf of the respondent with reliance placed on the Reasons for Refusal Letter, the Respondent’s Review and Country Policy Information Note Bangladesh: CPIN Political Situation, December 2024 (Version 1.0) December 2024.
11. At [13] the FtTJ set out the applicable standard of proof. The FtTJ summarises the appellant’s claim and evidence relied on at [18] to [22].
12. The FtTJ finds at [24] that the appellant’s credibility is undermined by his late claim for asylum. At [25] the FtTJ finds the evidence relied upon by the appellant to be unreliable and rejects the evidence of a psychologist on the basis that he was not a suitably qualified health professional to make the diagnoses that he did.
13. At [26] the FtTJ states:
I also find the reliability of the documents adduced to be materially undermined by the fact that the Appellant has elected not to offer the evidence under cross-examination particularly as Ms. Aihie indicated that she did intend to challenge the evidence.
14. The FtTJ went on to make adverse credibility findings against the appellant on the lower standard of proof, stating regardless of the credibility or lack thereof of his claim, the appellant’s political ambitions had been realised by the change in government. He dismissed the appellant’s protection and human rights claims.
Grounds of Appeal and Rule 24 Response
15. Permission to appeal was granted on limited grounds summarised as follows:
a. Procedural Unfairness – the FtTJ failed to consider an adjournment when the appellant failed to attend and erred in making an adverse credibility finding on the basis of the appellant’s non-attendance
b. The FtTJ failed to apply the correct standard of proof
c. The FtTJ failed to engage with material evidence, namely extant criminal proceedings and erred in making findings inconsistent with the respondent’s concession
16. The respondent filed a Rule 24 response dated 25 June 2026 resisting all three grounds of appeal averring that in the event the Tribunal found errors of law, any such errors would not be material to the decision.
The Hearing
17. The combined bundle consisted of 568 pages, including the respondent’s Rule 24 response.
18. I heard submissions from Mr. Collins and Ms. Isherwood. I have taken their submissions into account in making my decision, but I do not rehearse them here. I will refer in the discussion below to the aspects of those submissions I consider to be material.
Discussion and Findings
19. I will deal with the Grounds slightly out of turn.
20. At the outset of the hearing, Mr. Collins clarified that whilst he did not have instructions to abandon Ground 2, that is the failure of the FtTJ to apply the correct standard of proof, he accepted that the FtTJ had repeatedly and properly referred to the lower standard of proof in the decision. He was unable to point to any examples in the decision where the FtTJ had applied the wrong standard of proof. Ms. Isherwood, in her submissions, took me to the specific paragraphs in the decision where the FtTJ properly applied the correct standard of proof.
21. As will become apparent, it is not necessary for me to make a determination on this ground, however as it was raised at the outset and for clarity, Mr. Collins was right to accept that the FtTJ had referred to the correct standard of proof throughout the decision and accordingly I find there is no merit in this ground.
22. It was agreed by the parties that the principal challenge was Ground 1, namely, the FtTJ’s decision to proceed in the appellant’s absence. Accepting that there had been no application for an adjournment, Mr. Collins reframed the ground as a reasons challenge rather than procedural unfairness as the FtTJ had failed to provide any reasons for finding that it was in the interests of justice to proceed in the appellant’s absence.
23. Ms Isherwood relied upon and developed the respondent’s Rule 24 response. She submitted that it was apparent from the FtTJ’s decision that they had taken into account the previous history of non-compliance and the fact that his solicitors had come off the record. She further submitted that the FtTJ had clearly considered the appellant’s evidence, as evidenced by express reference to it in the decision.
24. Ms. Isherwood also effectively invited me to take judicial notice that enquiries are made when an appellant does not attend. She further argued that significant weight should be placed on the fact that the appellant has provided no explanation for his non-attendance. She further drew my attention to the appellant’s skeleton argument where it states that the appellant was too mentally unwell to be cross examined. Given the appellant’s own case, Ms. Isherwood submitted, his non-attendance made no difference to the adverse credibility finding made as a result.
25. In response Mr. Collins stated that he had no instructions as to why the appellant did not attend. However, he pointed out that the appellant did go on to instruct legal representative for this hearing. Mr. Collins argued that had the appellant been represented before the FtT, submissions could have been made on his behalf as to the relevance and authenticity of the documents relied on, even if the appellant was not fit to give evidence. Mr. Collins robustly resisted the suggestion that it is safe to assume that enquiries are always made on the non-attendance of an appellant.
26. I reminded myself of the The Senior President of the Tribunals Practice Decision on Reasons for Decisions 4 June 2024 and in particular [5] which states:
Where reasons are given, they must always be adequate, clear, appropriately concise, and focused upon the principal controversial issues on which the outcome of the case has turned. To be adequate, the reasons for a judicial decision must explain to the parties why they have won and lost. The reasons must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the main issues in dispute. They must always enable an appellate body to understand why the decision was reached, so that it is able to assess whether the decision involved the making of an error on a point of law. These fundamental principles apply to the tribunals as well as to the courts.
27. In recording the decision to proceed in the appellant’s absence, the only apparent reason the FtTJ gives is that the appellant had not made contact. From this short statement I am not clear if the FtTJ took any other factors into account in arriving at the decision and certainly, in my judgment, it cannot be read into the decision that enquiries were made. On my reading it suggests quite the opposite. There is no doubt, as Ms. Isherwood impliedly accepted, that such enquiries ought to have been made prior to taking the decision to proceed in absence. There is simply nothing in the decision allowing an inference that enquiries were made.
28. Whilst it is correct that there was a poor history of compliance with directions, there is no evidence to support an inference that the fault lies with the appellant rather than with his legal representatives. Similarly, the reasons for the appellant’s solicitors coming off record are not known. Without more, this history, in my judgment could not justify on its own a decision to proceed in absence. But again, given the brevity of the decision in this respect it is unclear whether, if at all, these factors were taken into account.
29. In addition to the general requirement to give adequate reasons, there are two interlinked factors in this case making it particularly important for the FtTJ’s reasons to be fully set out.
30. Firstly, the FtTJ made adverse credibility findings in the appellant’s absence. Whilst this would not necessarily be fatal, it is significant, in my judgment that the appellant’s documentary evidence was said by the FtTJ to be materially undermined by the appellant having elected not to offer to give evidence under cross-examination.
31. It is not clear to me, when the FtTJ states the appellant “elected” not to submit to cross-examination, whether the FtTJ is referring to what is averred in the appellant’s skeleton argument or his non-attendance at court. If it was the latter, in my judgment there was not sufficient evidence to be satisfied that the appellant “elected” not to attend.
32. If the FtTJ was referring to the appellant averring that he was unfit to be cross-examined, I do accept the submissions that weight attached to documents is a matter which could have been addressed in submissions on his behalf if he had instructed another legal representative has he did in this appeal. I find therefore that the assessment of the reliability of the appellant’s documentary evidence would not necessarily have been the same.
33. Secondly, this is a protection claim requiring the application of anxious scrutiny in the decision making process. This is all the more so when an appellant’s credibility is in issue. In my judgment, it cannot be said on the basis of the reasoning set out at [10] that anxious scrutiny was applied to that decision.
34. I find therefore that the FtTJ erred in failing to provide adequate reasons in respect of the decision to proceed in the appellant’s absence.
35. It was argued by Ms. Isherwood that if I were to find an error in respect of Ground 1, the appellant’s appeal was doomed to failure in any event given the change of government in Bangladesh, relying on MU v Secretary of State for the Home Department [2025] EWCA Civ 812. Any error, Ms. Isherwood submitted, is therefore not material.
36. Mr. Collins submitted that the appellant’s case falls to be distinguished from MU in two respects. Firstly, in the instant case there are outstanding criminal charges against the appellant and therefore he remains at risk of imprisonment on return, where prison conditions are said to be life-threatening.
37. As part of the Rule 24 response, the respondent submitted an article from the Daily Star in Bangladesh reporting that the interim government plans to revoke all politically motivated cases. However, as I pointed out to Ms. Isherwood at the start of the hearing, this article is new evidence and therefore should have been the subject of an application under Rule 15 (2A) of The Tribunal Procedure (Upper Tribunal) Rules 2008. Ms. Isherwood acknowledged this and, in my judgment correctly, did not make an oral application or endeavour to place any reliance on that article. I therefore do not take that article into consideration.
38. Mr. Collins referenced the pending country guidance addressing the issue of extant arrest warrants in Bangladesh AZ and WU UI-2024-005988, UI-2025-002246, although he did not robustly pursue the submission in the grounds of appeal that the appeal should be stayed.
39. Ms. Isherwood submitted that it was not open to the appellant to argue the hearing should have been adjourned or that this appeal should be allowed to await the promulgation of that guidance. That is not correct. As the Court of Appeal recognised in AB (Sudan) v Secretary of State for the Home Department [2013] EWCA Civ 921, the pendency of an authoritative decision likely to have a critical impact on the outcome of a case may constitute a proper basis for an adjournment. Whilst that may well be the case here, I make clear that the pending country guidance has not formed any part of my decision in this case.
40. Secondly, Mr. Collins submitted that the appellant’s case is that notwithstanding the change in government, the appellant remains at risk of serious harm/persecution from non-state actors. In his witness statement, the appellant refers to the risk of persecution from religious extremists on account of his religious identity. The appellant’s skeleton argument avers that there is a continuing risk to the appellant from supporters of the previous regime.
41. I note firstly that the FtTJ did not refer to MU, apparently basing the determination on the CPIN. Nor is the risk from non-state actors addressed by the FtTJ. The country information in the CPIN (Political Situation), as opposed to the assessment criteria, does not specifically address the risk by non-state actors.
42. Applying anxious scrutiny as I must, I find that the current legal and evidential landscape is insufficient for me to conclude that another tribunal would be bound to reach the same decision had the appellant attended and put his case before the FtT.
43. Accordingly I find the FtTJ’s failure to give adequate reasons to be a material error of law.
44. As I have found a material error on Ground 1 I have not needed to consider Ground 3.
45. Both Mr. Collins and Ms. Isherwood agreed that were I to find a material error of law in respect of Ground 1 the matter should be remitted to the First-tier for a hearing de novo.
Notice of Decision
46. The appeal is allowed. The decision of the First-tier Tribunal is set aside.
47. Having considered the submissions on behalf of the appellant and respondent and applying the principles set out in the Practice Direction, according to the guidance given in Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC) I consider it appropriate to remit the Decision to the First-tier Tribunal given the nature and the extent of the findings to be made.

M Walsh

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

26 July 2026