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

A black background with a black square Description automatically generated with medium confidence

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005036
	First-tier Tribunal No: PA/00232/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 17 ^th of January 2025

 

Before

 

UPPER TRIBUNAL JUDGE BULPITT

DEPUTY UPPER TRIBUNAL JUDGE BUTLER

 

Between

 

HR

(ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr M Aslam (Direct Access counsel)

For the Respondent: Ms A Ahmed (Home Office Presenting Officer)

 

Heard at Field House on 7 January 2025

 

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, [the appellant] ( and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) 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 ( and/or other person). Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

 

1.              The Appellant is a citizen of Bangladesh. He appeals against the decision of First-tier Tribunal Judges Haria and Murdoch dated 28 July 2023 (' the Judges').

The decision of the FTT

2.              In the First-tier Tribunal the Appellant advanced both a protection claim, based on his political activism on behalf of Chatra-Shibir, the student wing of Jamaat-e-Islam (a political party in Bangladesh), and a claim under Article 8 ECHR based on his relationship with his British partner and her adult daughter.

 

3.              In its determination, the First-tier Tribunal dismissed the Appellant's appeal on all grounds. Regarding the protection claim, the Judges found that:

 

1. The Appellant had likely been a student member or worker for Chatra-Shibir but it was unlikely that he was a senior member or leader.
2. The Appellant's credibility had been damaged by inconsistencies, a lack of sufficient detail, and his failure to claim asylum between the expiry of his visa on 25 May 2013 and being arrested following a traffic stop on 11 May 2018.
3. While the Appellant gave evidence that he was hit on the head by a stone at a protest in 2007, this was not likely to be because he was specifically targeted by the Awami League (political opponents of Jamaat-e-Islam).
4. The Appellant's account of police coming to his home in 2010-2011 to look for him was not credible.
5. The Appellant is not politically active in the UK and it is reasonably likely that he would make the same choice in Bangladesh.
6. In the alternative, even if the Appellant's account were accepted, he would not be at risk in Bangladesh because the alleged incidents were historic and his profile was not sufficient to give rise to a real risk of serious harm.

 

4.              In relation to the Appellant's Article 8 claim, the Judges found:

1. The Appellant met his British partner in 2018 and they had an Islamic marriage on 6 April 2018.
2. The couple live together. They also usually live with the partner's adult daughter (albeit she was in a mother and child unit at the time of the hearing after having a baby).
3. The adult daughter had learning difficulties but there was no independent evidence about the nature or extent of the support provided to her by the Appellant.
4. The partner would not relocate to Bangladesh with the Appellant were he removed.
5. The Appellant had been working in the UK as a carer.
6. The Appellant still had family, cultural, and linguistic ties to Bangladesh and there would be no very significant obstacles to his reintegration there.
7. Any separation from his partner would only be temporary as he could apply for entry clearance from Bangladesh.
8. In these circumstances, his removal would be proportionate and there would not be very significant obstacles to his reintegration.

5.              On 9 August 2023 the Appellant sought permission to appeal on various grounds. That application was mistakenly sent to Hendon Magistrates Court. After the Appellant wrote to the Tribunal to request an update on his application and was informed it had not been received, he filed his application on 5 July 2024.

6.              On 23 October 2024 First-tier Tribunal Judge Cox extended time for the application, recognising that the Appellant was acting as a litigant in person. Judge Cox refused permission on the pleaded grounds and granted permission on the sole ground that the First-tier Tribunal's decision contained arguable errors of law by making findings by reference to whether they were " likely" or " unlikely". Judge Cox considered that this arguably showed that the Tribunal had misapplied the standard of proof.

 

The hearing

 

7.              At the hearing before us, the Appellant was represented by Mr Aslam (direct access counsel) and the Respondent by Ms Ahmed. We thank them both for their helpful submissions.

 

8.              Mr Aslam argued that the Judges had not applied the correct test and had instead applied the civil standard of balance of probabilities. He also made reference to the recent changes in Bangladeshi politics, with the Awami League's fall from power and argued that notwithstanding those changes the error was material.

 

9.              Ms Ahmed opposed the appeal and relied on the Respondent's Rule 24 response. She argued that this was an issue of semantics rather than substance. She pointed to [13] of the determination, in which the Judges noted that they have applied the lower standard of proof. She characterised the use of terms such as "likely" as natural everyday language.

 

10.          At the end of the hearing, we reserved our judgment.

 

Our decision

 

11.          We do not consider that the First-tier Tribunal's decision contains an error of law. At [13] the Judges expressly state " we have applied the lower standard of proof". They accurately defined that lower standard of proof at [10] of the decision as "a reasonable degree of likelihood, which can also be expressed as a reasonable chance or serious possibility". While it is still necessary to consider the substance of the decision, it is clear that the Judges identified and intended to apply the correct standard of proof.

 

12.          The determination then uses the following language:

 

1. At [16], the Judges found it " reasonably likely" that Chatra-Shibir was present on the Appellant's student campus and " likely" that he was a student member. They find it " unlikely" that he was a senior member or leader.
2. At [18], the Judges found it " unlikely" that the Appellant was specifically targeted by the Awami League when he was hit with a brick.
3. At [19], the Judges found it " reasonably unlikely" that the authorities had come looking for the Appellant.
4. At [20], the Judges found it " not reasonably likely" that the Appellant would continue to be of interest to the authorities.
5. At [21], the Judges concluded that the Appellant's political activism in the UK (if any) was " likely to be of such a low level that it was unlikely to have come to the attention of the Bangladeshi authorities and unlikely to create any risk for the appellant on return".
6. At [24], the Judges found it " reasonably likely" that the Appellant would not become involved in politics on return to Bangladesh.

 

13.          We acknowledge that the First-tier Tribunal repeatedly made reference to the language of likelihood, which may in some circumstances connote the application of the balance of probabilities. However, likelihood is a feature common to both the lower stand and the civil standard of balance of probabilities, the distinction being the lower standard requires things only to be reasonably likely rather than more likely than not. We do not accept that the use of the terms "likely" and "unlikely" or even "reasonably unlikely" demonstrate that the Judges were, contrary to their explicit self-direction, applying a higher standard of proof. Instead, when the decision is considered as a whole, we conclude that in substance it is clear that the Judges were not applying that higher civil standard but were applying the lower standard of proof.

14.          As noted the Judges referred themselves to the relevant standard of proof at the outset of their judgment. At [19] and [26] they correctly referred to " a well-founded fear of persecution" and a " real risk of serious harm". It therefore cannot be said that the Judges did not have the low threshold in mind or were unaware of the test they were to apply. Many of the uses of 'likely' and 'unlikely' are preceded by " reasonably", which appears on its face to be a reference to the reasonable likelihood standard. In this context, we agree with Ms Ahmed that the handful of instances in which the Judges refer to a matter being " likely" or " unlikely", should be understood as natural and ordinary language reflecting the relevant test as it had been identified by the Judges. It is further noteworthy that at [27] when they moved on to consider the appellant's human rights claim the Judge's explicitly and accurately self-directed that at that stage they were applying the civil standard of the balance of probabilities, further demonstrating their careful attention to the relevant standard of proof that applied to the appellant's multi-faceted claims.

 

15.          We consider that, absent something more in the determination suggesting that the Judges were unaware of and / or had failed to apply the relevant test, it would be unduly restrictive to require specific reference to the threshold of reasonable likelihood every time it is being applied. Judges should be encouraged to write in clear and natural language, rather than artificially repeating technical terms every time they are applied.

 

16.          In any event, as we pointed out during the hearing, the Judges alternative findings that even if the Appellant's account were accepted, he would not be at risk in Bangladesh because the incidents described were historic and his profile was not sufficient to give rise to a real risk of serious harm now, mean that even if the Judges had erred in the way asserted any such error would be immaterial.

 

17.          In conclusion, there is nothing in the judgment which shows that the Judge failed to apply the relevant test and the Appellant's appeal must fail on that ground.

 

Notice of Decision

 

18.    The decision of the First-tier Tribunal did not involve the making of an error of law and stands.

 

 

M Butler

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

Signed 10 January 2025