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

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2024-001062 First-tier Tribunal No: PA/54290/2022 Case No: UI-2024-001063 First-tier Tribunal No: PA/54297/2022 Case No: UI-2024-001064 First-tier Tribunal No: PA/54300/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 19 ^th of July 2024

 

Before

 

UPPER TRIBUNAL JUDGE JACKSON

 

Between

 

MN

MJ

HM

(ANONYMITY ORDERS MADE)

Appellants

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellants: Mr P Jorro of Counsel, instructed by Saint Martin Solicitors

For the Respondent: Mr K Ojo, Senior Home Office Presenting Officer

 

Heard at Field House on 9 May 2024

 

 

Order Regarding Anonymity

 

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

 

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

DECISION AND REASONS

1.               The Appellants appeal with permission against the decision of First-tier Tribunal Judges Bulpitt and Hughes promulgated on 19 June 2023, in which the Appellants' appeals against the decision to refuse their protection and human rights claims dated 30 September 2022 were dismissed.

2.               The Appellants are all nationals of Bangladesh, consisting of a father and two children (originally there were three dependents on the claim, including the mother, but she was not included as an appellant in these appeals having not received a separate decision from the Respondent). The First Appellant (the father, hereinafter referred to as the 'Appellant' as the other two Appellants' appeals are entirely dependent on the outcome of the his main claim) arrived in the United Kingdom on 10 December 2017 as a Tier 4 dependent. He made an asylum claim with his family members as dependents on 3 December 2018. The claim was based on a fear of return to Bangladesh on the basis of political opinion, the Appellant claiming to have been a member of the Jamaat-e-Islami party from 2009 (and a student wing member since 2006), a party worker from 2010, an office secretary from 2016 and a publicity secretary/spokesperson from 2017. The Appellant claimed to have been arrested after a demonstration on 16 February 2023 (during which he was attacked and then tortured by the police following his arrest); attacked on 22 February 2013 by the police when attending a protest and again on 22 November 2015 when he was chased by the police at a demonstration and sustained an injury to his wrist. Further to this, the Appellant claimed that he was in hiding until he came to the United Kingdom. The Appellant also claimed that his mother had been threatened in October 2018 and January 2019 due to his sur place activity in the United Kingdom. The claimed fear was of the police, RAB and the Chattra league. In the United Kingdom, the Appellant claimed to have continued to support Jamaat-e-Islami and oppose the Awami League; posting on Facebook and attending demonstrations; as well as joining the organisations Universal Voice for Human Rights, Online Activist Forum UK and Nirapod Bangladesh Chaai. These matters led to a criminal complaint being filed against the Appellant in December 2022 in Bangladesh.

3.               The Respondent refused the application on 30 September 2022 on the basis overall that the protection claim was not credible and the Appellants would not be at risk on return to Bangladesh. In particular, the Respondent did not accept that the Appellant held a position of public secretary given the lack of supporting evidence and inconsistencies; the translations were not considered to be reliable as the company used was not found online; it was not accepted that the Appellant had already come to the adverse attention of the authorities in Bangladesh; and that the claimed encounters with the police were inconsistent and implausible. Further, whilst the Respondent accepted some of the claimed sur place activity in the United Kingdom, it was not accepted that the Appellant had a high profile, nor that there would be any reason for his family in Bangladesh to be visited many years after the Appellant's claimed political activity started. For essentially the same reasons, the Respondent refused the claim on humanitarian protection grounds and under Articles 2 and 3 of the European Convention on Human Rights.

4.               In the Respondent's review during the course of the appeal before the First-tier Tribunal, there was further consideration of new evidence about a criminal complaint in December 2022. The Respondent rejected this part of the claim on credibility grounds, not accepting that there was a complaint and overall not accepting that the Appellant had come to the adverse attention of the state authorities in Bangladesh.

5.               The Respondent considered and refused the Appellants' private and family life claims on the basis that none of the family members were settled in the United Kingdom and there were no very significant obstacles to reintegration in Bangladesh as the Appellant continued to speak the local language, had education and work experience as well as family support there. The child Appellants were at the time of decision aged 2 and 3 and it would be in their best interests to return to Bangladesh with their parents. The Respondent gave separate consideration to the Appellant's medical claim that he had depression and leg pain, concluding that treatment was available in Bangladesh and the high threshold in Article 3 medical claims was not met. The Appellant did not pursue an appeal against these human rights refusals before the First-tier Tribunal.

6.               Judges Bulpitt and Hughes dismissed the appeal in a decision promulgated on 19 June 2023 on all grounds. In summary, the First-tier Tribunal found that the Appellant's claim lacked cogency and consistency, with the overall account shifting and indicative of an account constructed for the purpose of staying in the United Kingdom. In particular, the claim as later made was inconsistent with the information in the Appellant's visa application and in his initial asylum screening interview; his claimed activities in Bangladesh were inconsistent with his claim to be in hiding from 2015 to 2017; and little weight was given to letters of support which were not contemporaneous and contained only vague references without any substantive details of the Appellant's activity or experiences; or about which explanations changed over time (such as in relation to a photograph). The absence of any evidence from the Appellant's wife, without explanation, who is in the United Kingdom and was well placed to support the claim; was also noted by the First-tier Tribunal.

7.               In relation to the Facebook evidence, the First-tier Tribunal found that the limited extracts suffered from the deficiencies identified in paragraphs 7 and 9 of the headnote of XX (PJAK - sur place activities - Facebook) Iran CG [2022] UKUT 23 (IAC) and therefore attracted little weight. In relation to the Respondent's criticism of translation of documents, the First-tier Tribunal considered further evidence about Language Voice, which contained different contact information and an inconsistent account as to who carried out the translations; as well as a new translator being used for later documents without any details of that company. The First-tier Tribunal treated translated documents with a great deal of circumspection given the lack of evidence as to how the documents were obtained and as to their translations.

8.               In relation to the Appellant's claimed sur place activities, the First-tier Tribunal was concerned that supporting evidence was in template format, was vague and used obscure language; without any supporting contemporaneous records. The authors did not attend the First-tier Tribunal hearing to give oral evidence. The First-tier Tribunal accepted that the Appellant had some presence at demonstrations in the United Kingdom, but found the evidence supporting his involvement to be limited and the participation contrived to support the asylum claim rather than demonstrating any significant role in such activities. Overall, the First-tier Tribunal found that the Appellant sympathises with those opposed to the Bangladeshi government, but not that he had or would come to the adverse attention of the authorities for that reason.

9.               Finally in relation to the criminal complaint in December 2022, the First-tier Tribunal found that it was not reasonably likely that the police received a complaint against the Appellant, nor that they visited and vandalised the Appellant's family home. There was a lack of supporting evidence or explanation for how certain evidence was obtained and a concern that a barrister who reported on the genuineness of a document from the police did so in a way which would risk those involved and amounted only to assertion that a persecutory police officer had accepted a persecutory police complaint.

The appeal

10.           The Appellants appeal on seven grounds, that the First-tier Tribunal has erred in law as follows:

(i) that is was irrational for the First-tier Tribunal to reject evidence on the basis that it was 'created' to support the Appellant's claim and appeal, given that evidence will always be gathered for such a purpose even in a genuine claim and may not necessarily be contemporaneous;

(ii) that the First-tier Tribunal failed to take into account certain supporting evidence submitted by the Appellant, including newspaper reports from 2013; transcripts and DVDs; Facebook evidence and failed to attach proper weight to the letters about sur place activity or the qualifications of the barrister who verified the criminal complaint in December 2022;

(iii) that the First-tier Tribunal unfairly relied on the Appellant's visa application and screening interview when assessing his credibility;

(iv) that the First-tier Tribunal reached irrational conclusions as to the supporting letters based on their similar styles when they carried different logos and were written by different authors;

(v) that the First-tier Tribunal erred in comparing what the Respondent could or should do to verify documents with the authorities in Bangladesh with what an independent barrister did, who was not bound to act under any duty of confidentiality and could not otherwise have done anything to verify the documents;

(vi) that the First-tier Tribunal erred in rejecting the Appellant's claim when it was consistent with background country evidence; and

(vii) that the First-tier Tribunal erred in finding that the Appellant was not at risk on return to Bangladesh as a support of Jamaat-e-Islami given the background evidence of risk even to supporters.

11.           At the oral hearing, Mr Jorro made submissions in line with the detailed written grounds of appeal summarised above.

12.           On behalf of the Respondent, Mr Ojo opposed the appeal on the basis that there were no material errors of law in the First-tier Tribunal's decision. In particular he highlighted the high threshold for a perversity finding against the First-tier Tribunal's conclusions and reasons and that the First-tier Tribunal took a holistic approach to all of the evidence, with detailed reasons for adverse credibility findings which went far beyond a simple rejection of evidence on a theory that the claim was concocted. Mr Ojo submitted that the First-tier Tribunal clearly had in mind the principles in Tanveer Ahmed when considering the documentary evidence and when such documents were found to be unreliable, then it was a natural conclusion that the claim was concocted.

13.           Overall, Mr Ojo submitted that the First-tier Tribunal gave clear and adequate reasons for the findings made, which resolved all key conflicts. It is not necessary for a decision to include reference to each and every piece of evidence before the First-tier Tribunal and the decision stated that all evidence was considered even if not expressly mentioned. A holistic view of the evidence was unarguably taken.

14.           In relation to specific points of detail raised in the grounds, Mr Ojo made reference to particular parts of the First-tier Tribunal decision with submissions supporting the findings made therein as rational ones open to the First-tier Tribunal on the evidence, including by reference to the background country evidence in the CPIN and quoted in the Respondent's decision letter, that supported the overall conclusion that a low level supporter would not be at risk on return to Bangladesh.

15.           As part of the documentation submitted by the Appellant for the hearing in the Upper Tribunal, there was an application under rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 to adduce further evidence. The additional evidence all related to matters which post-dated the appeal before the First-tier Tribunal and it was not suggested that any of it was relevant to the issue of whether there was an error of law in the First-tier Tribunal's decision. As such, it was not admitted for the purposes of the error of law hearing and has not been considered for this decision. The material would only be relevant to any re-hearing of the appeal if an error of law were to be found.

Findings and reasons

16.           In relation to the first ground of appeal, there was no error of law by the First-tier Tribunal in referring, as part of their reasoning, to the lack of contemporaneous evidence and that certain pieces of evidence were created for the sole purpose of the Appellant's claim or appeal. An example of this is in relation to an 'injury certificate' from Sylhet MAG Osmani Medical College Hospital dated 25 April 2019 in relation to the claimed incident on 22 February 2013; which was noted not to be contemporaneous and with no explanation or how the document was created other than it being apparent that it was for the sole purpose of the claim. That is a reasonable and rational conclusion, but in any event, as is clear from paragraph 34 of the decision, there were wider reasons as to why significant weight was not attached to that and a discharge letter from 2013 that was contemporaneous; which included that not all pages had been provided and neither document supported or undermined the Appellant's assertion about the cause being mistreatment from the police.

17.           Further examples are in paragraphs 35 and following of the First-tier Tribunal's decision in relation to letters of support which were specifically to support the Appellant's claim but written many years after events referred to therein with a lack of detail in the documents. It was rationally open to the First-tier Tribunal to attach little weight to such documents for the combined reasons of the late timing of the documents; the vagueness of the contents and lack of contemporaneous records or supporting documents. Although the point is implied rather than express in the First-tier Tribunal's decision, it would be reasonable to consider that documents created specifically to support a claim and/or appeal would contain more detail given their purpose. It is trite to remember that short of a perverse decision, the weight to be attached to evidence is primarily a matter for the First-tier Tribunal who heard and considered it. In the present case, the first ground of challenge falls very far short of the perversity threshold, particularly because the timing of documents created in support of the claim was one of many different reasons (which varied depending on the evidence considered) and not the sole reason for little weight being attached.

18.           The second ground of appeal is that the First-tier Tribunal failed to take into account certain supporting evidence submitted by the Appellant. First, that three newspaper reports from 2013 were not considered. The three reports deal generally with violence at a demonstration on 22 February 2013, with one of the articles naming the Appellant as one of the injured persons from it. Whilst there is no specific reference to the articles in the decision, it is not necessary for each and every piece of evidence in what was a bundle of papers exceeding 600 pages to be referred to in the decision, particularly given the statement that all was considered even if not expressly referred to. This point applies equally to other aspects of this second ground of appeal.

19.           In any event, the one article that named the Appellant referred to those injured as 'participants in the process and pedestrians', without specifying the capacity in which the Appellant was present or injured; nor did the article say anything about arrests or anything that happened after the incident. At its highest, the article is consistent with the Appellant's claim that he was at the site of the protest, but no more than that. The grounds of appeal put this far too high suggesting this is credible evidence of the heart of the Appellant's claims to have been beaten and detained; it was not and it was not an error of law to fail to expressly refer to it. There is nothing to suggest that these articles were not properly considered.

20.           Secondly, the Appellant claims that the First-tier Tribunal has failed to give sufficient weight to the evidence of Khairul Afian Chowdhury dated 10 April 2019 and of Al Mumin; including for failing to consider their positions and roles. These two pieces of evidence were expressly considered in the First-tier Tribunal's decision in paragraphs 35 to 38 (which included a wider point about evidence being inconsistent with the Appellant's original claim about a photograph). Regardless of the roles of the two authors, the First-tier Tribunal's reasons for attaching little weight to the letters is entirely clear, primarily that the contents were vague and lacked supporting detail and evidence. That was a conclusion which was rationally open to the First-tier Tribunal and there was no need at all to refer in any further detail about the authors themselves, it was sufficiently clear that the poor quality of the evidence was such that it carried little evidential weight.

21.           Thirdly, that the First-tier Tribunal failed to consider DVDs, albeit it appears that there was no actual DVD before the First-tier Tribunal, only a transcript of a series of video clips of speeches made by the Appellant. Again, it is not necessary for the First-tier Tribunal to refer to each and every piece of evidence and the Appellant has not identified the relevance of this evidence or how, considering the evidence holistically, it could have materially affected the assessment even of his sur place activities. It is not for example identified whether there was any publication of these speeches or whether the Appellant could or had been identified through them by the authorities in Bangladesh. In any event, it was accepted that the Appellant had engaged in some sur place activities, but that these were at a low level and would not create a risk on return.

22.           Fourthly, that the First-tier Tribunal failed to have regard to threats made on Facebook to the Appellant. For the reasons given by the First-tier Tribunal in paragraphs 43 and 60 to 62, the Facebook evidence suffered from the same deficits as those identified in XX and little weight could be attached to it. In any event, it was rationally open to the First-tier Tribunal to find that there was little engagement with the Appellant's Facebook posts, given that there was frequently only a single comment or share on posts, with likes either in single or low double digit numbers (the highest being 51 likes). Again, the weight to be attached to this evidence and findings made in relation to it, which did not need to refer expressly to specific every post made, was rationally open to the First-tier Tribunal.

23.           Finally, that the First-tier Tribunal failed to consider the reliability of Mr Solaiman's report verifying the criminal complaint in 2022 by reference to his professional qualifications and memberships and that he was instructed by the Appellant's solicitors. The report was given express consideration in paragraphs 68 and following in the First-tier Tribunal decision. The findings made therein focused on the methodology by which the information was said to have been obtained, which was inconsistent both with the methods identified in the CPIN for safety reasons and the risks identified by Mr Solaiman himself in such matters and weight was therefore attached to the document by reference to its substantive content. It was not an error of law for the First-tier Tribunal not to expressly consider in the decision the author's qualifications or memberships in these circumstances; this was at most a minor point which could not have affected the weight to be attached to the document for the reasons given.

24.           Overall, the Appellant has failed to identify any evidence which had not been properly considered or rational weight attached to it by the First-tier Tribunal; even in the absence of express reference to it in the decision (which was not necessary for every piece of evidence) and in any event, none of the points referred to in the second ground of appeal could have made any material difference to the outcome or particular findings when the evidence before the First-tier Tribunal is considered as a whole.

25.           The third ground of appeal is entirely without merit. It was unarguably lawful, rational and reasonable for the First-tier Tribunal as part of its findings on credibility to rely on the Appellant's claim being inconsistent with his visa application and that his screening interview lacked even the very basic details of circumstances and events he later relied upon. On the former, the application gave information as to a consistent residential address and being able to obtain a new passport; which could not be reconciled with the Appellant's claim to have been moving to different locations and being in hiding from the authorities whom he claimed to be at risk of between 2015 and 2017. This was the material relied upon by the First-tier Tribunal, not, as mischaracterised in the grounds of appeal, a failure at that time to disclose pre-existing political problems.

26.           In relation to the screening interview, the First-tier Tribunal expressly acknowledged in paragraph 29 that an applicant is not expected at that stage to give a comprehensive account of his claim, but that it was notable in this case that the initial claim was extremely vague and imprecise, with no mention at all of any claim to have been tortured, detained, assaulted or even which political party he supported. Again, this is also a point which formed only a small part of the overall reasoning of the First-tier Tribunal which gave broad and detailed reasons overall for the adverse credibility findings made. The grounds of appeal mischaracterise this point as relating to delay in the Respondent undertaking the substantive asylum interview, but the point relied upon was the lack of any detail in the original claim.

27.           The fourth ground of appeal is that the First-tier Tribunal reached irrational conclusions as to the weight to be attached by supporting letters due to their similarities. The First-tier Tribunal found in paragraph 50 that a number of letters, as well as facing difficulties with obscured explanations for translations (covered earlier in the decision) had "an identical template and each follow the same format and structure. They are all vague and all use the same obscure language to talk about the appellant's involvement. None are supported by other evidence such as contemporaneous records from the organisation and none are supported by their author making himself available for testing." Having considered that evidence, on any view, this was a fair and rational assessment of these documents. The letters were remarkably similar, despite the different authors and organisations from which they came and all lacked specific detail and content. In any event, the First-tier Tribunal did not dismiss them as a whole for this reason and gave further specific consideration of each letter in paragraphs 51 to 53 of the decision; with a conclusion in paragraph 54 that the contents of the letters were not reliable. This ground of appeal is no more than disagreement with unarguably rational findings.

28.           The fifth ground of appeal concerned the assessment of the verification report by Mr Solaiman. This overlaps to some extent with part of the second ground of appeal which has already been covered above. The focus in this ground was as to the method of verification and the different position that Mr Solaiman was in compared to the Respondent in relation to document verification. It is however entirely unexplained by the Appellant as to how the methods used would not create a similar risk to the Appellant or his family through contacting those who he claims to be corrupt and one of the sources of risk to him on return to Bangladesh; who have already attended his family home and vandalised it. The reference to not being bound by a duty of confidentiality does not explain this, particularly in light of what Mr Solaiman says are the potential risks to political opponents and their families. The concerns raised by the First-tier Tribunal in paragraph 68 of the decision in particular were ones which were open to the Judge to consider as part of the assessment of what weight should be attached to the document. That consideration discloses no error of law in the decision, particularly given the further reasons in paragraph 69 as to the substance of the criminal complaint, its coincidental timing in relation to the Respondent's refusal of the asylum claim and the lack of explanation as to how the complaint was originally acquired. The findings in relation to the report and news article were rationally open to the First-tier Tribunal.

29.           The final two grounds of appeal can be taken together, as both raise issues as to consideration of the background country evidence, first that it was consistent with the Appellant's claim and secondly, whether even on the limited positive findings made in relation to the Appellant, that he was a low-level supporter of Jamaat-e-Islami, he would be at risk on return to Bangladesh.

30.           On the first point, the fact that an Appellant's claim to be at risk in Bangladesh as an opposition political supporter is something that rationally carries little positive weight in his favour in the context of this appeal (unlike in some other cases where it may be carry more weight) and there is no error of law by the First-tier Tribunal in failing to give any specific credit for this in its overall assessment of a much wider range of evidence submitted as specific to the Appellant's particular circumstances and claim. It would not in any event even arguably outweigh the much more specific findings made on the detail of the Appellant's claim or reasons for its rejection.

31.           On the second point, in paragraph 23 of the First-tier Tribunal's decision, there is express reference to having considered the background country evidence and that there was no dispute that politically motivated violence is an issue in Bangladesh and there is indication that law enforcement agencies can be used as political instruments to silence the opposition. It was however rationally open to the First-tier Tribunal for the detailed reasons given, to find that the Appellant had not yet come to the adverse attention of the authorities in Bangladesh before his departure, nor due to any sur place activities. On the limited findings of some sur place activity at a low level, not in an organisational or promotional capacity and with very limited online engagement; the background country evidence did not support a finding that the Appellant would be at risk on return for these reasons.

32.           The grounds as a whole do not identify any error of law in the decision of the First-tier Tribunal, despite their length. As observed by the First-tier Tribunal, quantity and quality are different things and in this case, the long list of matters raised were in substance no more than disagreement with the First-tier Tribunal's findings and fell very far short of the perversity threshold. The First-tier Tribunal gave clear, cogent and detailed reasons on all key issues; with findings that were rationally open to it on the evidence available.

Notice of Decision

 

The making of the decision of the First-tier Tribunal did not involve the making of a material error of law. As such it is not necessary to set aside the decision.

 

The decision to dismiss the appeal is therefore confirmed.

 

 

G Jackson

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

16 ^th July 2024