United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-004252
	First-tier Tribunal No: PA/55848/2022

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 25 ^th of March 2025

 

 

Before

 

UPPER TRIBUNAL JUDGE LOUGHRAN

DEPUTY UPPER TRIBUNAL JUDGE HOWARTH

 

Between

 

MR (BANGLADESH)

(ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Ms. D Revill of Counsel instructed by Makka Solicitors Ltd

For the Respondent: Ms. A Nolan, Senior Home Office Presenting Officer

 

Heard at Field House on 6 March 2025

 

 

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

 

Introduction

 

1.              This is an appeal against the decision of First-tier Tribunal Judge Seelhoff promulgated on 29 September 2023, dismissing the appellant's appeal against the respondent's decision dated 9 November 2022, that the appellant was not entitled to asylum or humanitarian protection.

2.              Permission to appeal was granted on the papers by Upper Tribunal Judge O'Callaghan on 26 September 2024. At the error of law hearing, we asked the representatives whether they were aware of the reason for the delay in the case being considered by the Upper Tribunal. Neither representative knew the reasons for the delay, nor whether either party had actively enquired about the status of the appeal with the Upper Tribunal. We do not know the cause of the delay in this appeal coming before the Upper Tribunal but note it is a matter of regret.

3.              We are grateful to both advocates for their submissions at the hearing.

 

Anonymity Order

4.              An Anonymity Order is made in this case because this is a protection claim.

 

Relevant Facts

5.              The appellant is a citizen of Bangladesh. His date of birth is 25 September 1972. He came to the United Kingdom as a visitor in 2013. He did not claim asylum immediately. He made an application based on Article 8 ECHR which was refused by the respondent. He then made a claim for asylum on 19 December 2016 that was refused by the respondent. This was followed by a fresh claim for asylum in August 2020 which was also refused by the respondent. This case concerns his appeal against that fresh claim.

6.              The appellant's case is that he is a member of the Bangladeshi National Party (the "BNP") and that his profile within the party means that if he returns to Bangladesh, he will be at risk of physical harm contrary to Articles 2 and 3 of the Human Rights Act 1998 and to persecution because of his political opinion. The respondent takes the view that the appellant is not a high-level member of the BNP and so would not be at risk on return and therefore that he is not entitled to asylum.

 

First-tier Tribunal Decision

7.              The appellant's appeal has been considered twice by the First-tier Tribunal. His appeal against his initial asylum claim was heard by First-tier Tribunal Judge Sangha, who promulgated a decision on 11 June 2019, dismissing the appeal. On 18 September 2023, the appellant's appeal against the respondent's refusal of his fresh claim was heard by First-tier Tribunal Judge Seelhoff. First-tier Tribunal Judge Seelhoff (hereafter, "the judge") dismissed the appeal. The judge concluded that the appellant did not have a well-founded fear of persecution for a Convention reason and did not face a risk of serious harm for the purposes of Humanitarian Protection or Article 3. In reaching this conclusion, the judge:

 

i.                     Noted that Judge Sangha had made "serious adverse credibility findings including finding that false FIR and Court documents had been provided from Bangladesh in reliance on document verification reports completed by the respondent" and that "Judge Sangha did not accept the Appellant's account of past involvement with the BNP, or of material political activity being carried out in the UK" [5]. The judge did not depart from the adverse credibility findings made by First-tier Tribunal Judge Sangha [26] (credibility findings [15] - [25]).

ii.                   Relying on the evidence of two witnesses called at the hearing (referred to as "MWA" and "MSU") the judge did accept that "the Appellant had a "low level of involvement with the BNP prior to their departures from Bangladesh" [39].

iii.                 Found that the appellant's claims about events in Bangladesh prior to his departure were not reasonably likely to be true [40].

iv.                 Concluded that fresh evidence in relation to an ongoing interest in the appellant by the anti-BNP Awami League could not be treated "as reliable evidence of any ongoing interest in the Appellant" [40].

v.                   Found that the evidence that had been provided by the appellant did not show a "high level of involvement in political activity in the UK" and that the appellant "is at most a low level BNP activist" in the UK, "who has undertaken at most a low level of posting on Facebook in respect of political matters and who has attended some meetings" [47].

vi.                 Found that he "would not characterise the Appellant as a leader" and that the evidence did not show that he was "particularly active or vocal" at [56] and that "[h]e appears at most to be a low level organise who speaks on occasion most recently at an event in Luton" [56].

vii.               Recorded that the appellant's expert had asserted that: "BNP leaders and members who are active and vocal are highly sought for by the police" [55] but noted that assertions made in the expert report about the treatment of BNP activists were "largely unsupported by reference to evidence" [55], contained "very little reference to recent treatment of BNP activists" [52] and relied on old sources and data [49 and 53] and concluded that the expert report did not provide "significant support for the contention that his profile would leave him at risk of persecution on return" [56].

viii.             Concluded that the evidence did not show that "there is a real risk of persecution to someone of the Appellant's very low political profile" [58].

 

Grounds of Appeal

8.              There are three grounds of appeal:

9.              First, that the judge made an error of fact in relation to the evidence from the appellant's witnesses, which corroborated the appellant's case that he had a high-profile in the BNP when he lived in Bangladesh. The respondent did not dispute that high-profile members of the BNP would be at risk on return, and so the error of fact amounted to a material error of law.

10.          Second, that the judge had failed to have regard to important evidence in relation to the appellant's sur place activities which showed that he was a high-profile member of the BNP in the UK. Likewise, as the respondent did not dispute that high-profile members of the BNP would be at risk on return, the failure to have regard to that evidence amounted to a material error of law.

 

11.          Third, that the judge had materially erred in treating the ability of one of the appellant's witnesses to return to Bangladesh without suffering any harm as undermining the appellant's claim to be at risk on return.

 

Discussion

Ground 1

12.          We find that the judge made an error of fact in relation to the evidence from the appellant's witnesses. The judge made an error of fact because he incorrectly found that MWA could not corroborate "the Appellant's account of what he did between either 1995 or 1999 and his departure from Bangladesh encompassing all the time in which key events are said to have happened, and including some of the time period covered by the 2002 letter" [35]. However, MWA did not leave Bangladesh until 2009, and his evidence was that he was the author of the "2002 letter" and so his evidence was at least capable of providing some corroboration of the appellant's account about his activity with the BNP up until MWA left Bangladesh in 2009.

13.          In determining whether an error of law is material, we remind ourselves of the test endorsed by the Court of Appeal in ASO (Iraq) v Secretary of State for the Home Department [2023] EWCA Civ 1282 at [43] which is, "whether 'it is clear on the materials before [the FtT] any rational tribunal must have come to the same conclusion'. If that is clear, then any error of law would be immaterial, and the appeal should fail".

14.          In our view, it is not clear that any rational tribunal would have been impelled to come to the same conclusion as the judge. Taken at its highest the evidence of MWA is capable of supporting the appellant's case that he held positions of responsibility in Bangladesh prior to 2009. Were a tribunal to come to that conclusion, this could in turn influence the assessment of the appellant's evidence about the events in 2012, in respect to which he had explained that he had been appointed as a "joint general secretary" which was a "level of activity" that "caught the attention of the opposition party" (Refusal Letter, at paragraph 15, referring to the judgment of First-tier Judge Sangha at paragraph 11).

 

Ground 2

15.          We find that the judge made another error of fact in failing to have regard to some of the evidence about the appellant's sur place activities, which had been before him at the hearing. The judge made an error of fact because in his analysis he missed that there were photographs from the appellant which showed the appellant delivering a speech in London in 2022 and standing next to Tareq Zia, who is said to have been the BNP's acting chair that year. The judge indicated that the appellant's evidence had only demonstrated that he had "sporadic involvement and nothing in the last two years" [54] (emphasis added). However, this was incorrect. The hearing took place in September 2023, but the photographs were from sometime in 2022 (there is no month on the photographs, which simply say "2022"). Thus, there had been some involvement in the last two years, albeit there was no evidence of involvement in 2023.

16.          Ms. Revill, for the appellant, submitted that this amounted to a material error of law, with reference to the appellant having said in his witness statement that "[i]t is impossible even for a small BNP leader to stand beside [Mr Zia] in a BNP gathering. This particular picture is sufficient to show my profile in the BNP politics". We agree. A rational tribunal considering this evidence, in addition to the other evidence provided by the appellant about his activities with the BNP in the United Kingdom, would not have been bound to come to the same conclusion as the judge. In other words, if the appellant's evidence about delivering a speech in London in 2022 standing next to the BNP's acting chair was accepted, a rational tribunal might come to a different assessment about the appellant's profile in BNP, United Kingdom.

 

Ground 3

17.          We do not find that the judge materially erred in stating at [48] that: "In terms of a point of comparison I noted the witness MSU returned to Bangladesh in 2018 on his own evidence and had no problems although he appears to have a more senior role than the Appellant".

 

18.          Ms. Revill initially suggested that the judge had impliedly reached an adverse credibility finding against the appellant by making a comparison between MUS and the appellant. We reject that submission. There is nothing in the judgment to suggest that the judge made an adverse credibility finding on that point. Ms. Revill then submitted that just because a risk did not materialise for MUS that did not mean that there would not be a risk to the appellant, and referred to MAH (Egypt) v Secretary of State for the Home Department [2023] EWCA Civ 216, in which Singh LJ delivering the judgment of the Court of Appeal, at [52] noted that "[e]ven a 10% chance that an applicant will face persecution for a Convention reason may satisfy the relevant test". We agree that just because a risk did not arise for MUS does not mean that a risk would not arise for somebody else. However, we do not find that the judge has materially erred. The judge's conclusion about the likelihood of risk to the appellant upon return to Bangladesh, is clearly based on his detailed analysis of the expert report [49] - [58] coupled with his conclusion that the appellant was a "low level BNP activist" / "low level organiser" [47] and [56], and not on any comparison with MUS.

 

19.          We have considered whether to retain the matter for remaking in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President's Practice Statement and AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC). We are satisfied that it is appropriate to remit the appeal to the First tier Tribunal because substantial findings of fact will need to be made.

 

Notice of Decision

 

1.               The First-tier Tribunal decision involved the making of an error of law. Accordingly, the decision of the First-tier Tribunal dated 29 September 2023 is set aside.

 

2.               The decision will be remitted to the First-tier Tribunal to be heard by a different judge. No findings of fact are preserved.

 

 

Kathryn Howarth

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

17 March 2025