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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-004881
	First-tier Tribunal No: PA/52094/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 11 ^th of February 2025

 

Before

 

UPPER TRIBUNAL JUDGE KHAN

DEPUTY UPPER TRIBUNAL JUDGE SMEATON

 

Between

 

AM

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr Uddin of Counsel instructed by Syed Shaheen Solicitors

For the Respondent: Ms Lecointe, Senior Home Office Presenting Officer

 

Heard at Field House on 20 January 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

 

1.              The Appellant appeals with the permission of First-tier Tribunal ('FtT') Judge Monoghan against the decision of FtT Judge Burnett. By his decision promulgated on 24 May 2024 ('the Decision'), Judge Burnett dismissed the Appellant's appeal against the Respondent's refusal dated 2 March 2023 of his protection and human rights claim.

 

Background

2.              The Appellant is a national of Bangladesh.

3.              The Appellant arrived in the UK as a visitor. He now says that he arrived in the UK on 17 December 2009. He previously claimed to have arrived on 11 May 2010. That inconsistency is relevant to this appeal.

 

4.              In 2013, the Appellant made a human rights claim based on his private and family life, which was refused with no right of appeal.

 

5.              In 2018, the Appellant made a protection claim, which was refused on 7 August 2019. The Appellant claimed to be an active member of the Bangladeshi Nationalist Party ('BNP') and claimed that there was an outstanding warrant for his arrest due to a false case being brought against him by the Awami League. His appeal to the FtT was refused by FtT Judge Monson in a decision promulgated on 27 September 2019, largely on credibility grounds.

6.              The Appellant made further submissions in May 2020. The basis of his protection claim remained the same but he produced documentary evidence which had not been before the Respondent (or Judge Monson) in 2019. Those further submissions were refused on 23 March 2023 and form the basis of this appeal ('the Refusal Decision').

The appeal to the FtT

7.              The Appellant appealed against the Refusal Decision to the FtT and his appeal was heard by Judge Burnett, sitting in Taylor House, on 24 May 2024. Mr Uddin represented the Appellant, as he did before us. The Respondent was unrepresented at the hearing. Judge Burnett heard oral evidence from the Appellant and his brother-in-law, Mr AU, and submissions from Mr Uddin. He reserved his decision.

8.              In the Decision dismissing the appeal, Judge Burnett:

 

8.1.     questioned why the Appellant had not provided documentary evidence of the false allegation said to have been made against him in Bangladesh at the hearing before Judge Monson and noted that the Appellant had not had the documents verified by a lawyer in Bangladesh, despite Judge Monson referring to that as a possibility;

8.2.     noted that the Appellant had been identified in the alleged First Incident Report ('FIR') and arrest warrant as both 'Inus Miah' and 'AM' and questioned how that could be consistent with the Appellant's claim before Judge Monson that he had used the name AM on the instruction of his agent in March 2010;

8.3.     noted that the Appellant had said in his Screening Interview that he had entered the UK in May 2010 and changed his account to December 2009 only after the Respondent relied on his ability to remain in Bangladesh between December 2009 and May 2010 as undermining his claim to be at risk;

8.4.     noted that the BNP were very active in the UK, that no committee member had attended the appeal hearing to support the Appellant's claim and that no letters of support from the party confirming his membership had been produced.

 

The appeal to the Upper Tribunal ('the UT')

9.              The Appellant appealed on six grounds. Permission to appeal was granted by Judge Monoghan on 22 October 2024 on grounds one-three only and in the following terms:

 

(1)     it is arguable that Judge Burnett failed to make a clear finding as to whether the documents presented were accepted or not and to give adequate reasons for his conclusion, instead referencing the earlier decision of Judge Monson and questioning why matters raised in that decision were not dealt with;

(2)     it is arguable that Judge Burnett misinterpreted the previous finding of Judge Monson that the Appellant was known by two different names in Bangladesh, and having done so, reached perverse findings;

(3)     it is arguable that Judge Burnett acted in a procedurally unfair manner in failing to make a finding about the date the Appellant entered the United Kingdom ('the UK') and its relevance to whether it was credible that he had been accused of murder in Bangladesh. Another FtT Judge (Judge Brannan) had given directions for the Respondent to clarify the date of entry, noting the possible relevance of that matter to credibility.

 

10.          The Appellant sought unsuccessfully to renew his application for permission to appeal in respect of grounds four-six before the UT.

 

11.          The matter was listed for a hearing before this Tribunal Panel on 20 January 2025.

 

12.          We heard submissions from both representatives. Mr Uddin relied on a skeleton argument which had been handed up on the day of the hearing. We do not propose to rehearse the submissions made here, but will consider what was said during our analysis of the grounds of appeal.

 

Discussion/analysis

Ground 1

 

13.          Applying Devaseelan [2002] UKIAT 00702, the findings of Judge Monson must necessarily have formed Judge Burnett's starting point. Both representatives before us acknowledged that to be correct. Judge Burnett correctly identified Devaseelan as being of relevance to the appeal.

 

14.          The Appellant did, however, produce evidence which had not been before Judge Monson. In this appeal, he argues that Judge Burnett failed to make clear findings as to the authenticity of those documents and failed to give adequate reasons for his conclusion that the documents were not credible. In his oral submissions, Mr Uddin suggested that Judge Burnett did not rely on, or consider, the documents at all but simply referred to Judge Monson's decision.

 

15.          We do not agree. In considering the documentary evidence, Judge Burnett was obliged to consider it in the round and in light of all the evidence in the case, following the approach in Tanveer Ahmed v SSHD [2002] Imm AR 318, as endorsed by Ouseley J in CJ (on the application of R) v Cardiff County Council [2011] EWHC 23. Documentary evidence does not carry with it a presumption of authenticity, which specific evidence must disprove, failing which its content must be accepted. Nor does oral evidence. What is required is an appraisal by the Tribunal of the weight that can be given to a particular element of the evidence taking into account its nature, provenance, timing, and background evidence, in the light of all the other available evidence in the case, especially that given by the Appellant.

 

16.          Whilst no express mention was made of that principle in the Decision, it is clear that Judge Burnett did have it in mind. He reached a clear finding (at [31]) that no weight could be placed on the documents. In reaching that conclusion, he took into account the Appellant's failure to have the documents verified by a lawyer in Bangladesh (despite Judge Monson alerting him to the possibility of doing so), the Appellant's failure to explain why the documents were not produced before Judge Monson, the lack of explanation for why charges would be brought eight years after the Appellant left Bangladesh, the unexplained appearance of two names (AM and IM) on the documents, the inconsistent dates of arrival in the UK, and the lack of independent evidence to demonstrate that the Appellant is (and was) an active member of the BNP. That was a proper and lawful approach to the documentary evidence.

 

17.          In his oral submissions before us, Mr Uddin argued that Judge Burnett was wrong to say that no explanation had been given for the failure to produce the documents before Judge Monson. This was not a ground of appeal but, for completeness, we do not accept it. The Appellant proffered an explanation in his witness statement but Judge Burnett did not accept that a clear explanation had been given.

 

Ground 2

 

18.          At [12], in reciting the material history to the appeal, Judge Monson stated that the Appellant is recorded as claiming asylum in the identity of AM, with a date of birth of 4 February 1970 but agreed that his fingerprints matched those of IM with a date of birth of 22 November 1977. Judge Monson records that the Appellant ' explained that this was his name "also" in Bangladesh. His passport in the name of AM was "made" by an agent as he had lost his previous passport and he had been told to "make it" in a new name'. This quote is taken directly from the Appellant's Screening Interview.

 

19.          At [18], in setting out what took place at the appeal hearing, Judge Monson records the Appellant's evidence as follows: ' The reason for the change of his name and date of birth was purely because this was on the instructions of the agent who had made him a new passport (on 3 March 2010).

 

20.          Judge Burnett relied on the name change as a reason to doubt the reliability of the new documents. Citing [18] of Judge Monson's decision only, he queried how both the names IM and AM could appear in the FIR and arrest warrants, said to have been issued in December 2009, if the name AM was given to the Appellant on the instructions of the agent who made the passport in March 2010.

 

21.          The Appellant argues that, applying Devaseelan, Judge Burnett ought to have had regard to [12] of Judge Monson's decision, and ought either to have accepted Judge Monson's 'finding' that the Appellant used two names in Bangladesh or to have given reasons for departing from that 'finding'.

 

22.          As Mr Uddin acknowledged at the hearing, this ground of appeal proceeds on the assumption that Judge Monson did in fact make a factual finding that the Appellant used both names in Bangladesh. We do not accept that he made such a finding. Judge Monson did no more than cite the Appellant's Screening Interview by way of explaining the background. The Screening Interview does not clearly state that the Appellant used both names in Bangladesh, although that is one potential reading of it. In the same answer, the Appellant is also recorded as referring to AM as a 'new name', making the position far from clear. There is nothing recorded in Judge Monson's decision to suggest that the Appellant gave evidence to the effect that he used both names in Bangladesh.

 

23.          Nor is there anything in the Decision to suggest that the Appellant's position before Judge Burnett was that he had used both names in Bangladesh. His witness statement for that appeal says only that his name was IM, that that was the name he entered the UK with, and that he was told by his agent to make a passport in a new name, AM. Other than the disputed new documents, there is no documentary evidence that the Appellant used the name AM in Bangladesh.

 

24.          In light of that evidence, and in the absence of a clear finding by Judge Monson to the effect that both names had been used by the Appellant in Bangladesh, Judge Burnett was entitled to question the reliability of court documents referencing the name AM for the reasons he gave.

 

Ground 3

 

25.          At a Case Management Review Hearing ('CMRH') on 15 December 2023, Judge Brannon made directions which included a requirement for the Respondent to provide her position on the date the Appellant arrived in the UK and to provide any evidence in support of the position taken. The date of arrival was said to be relevant to the Appellant's claim because, if he did indeed arrive in the UK on 17 December 2009 (as he now claims), the allegation of murder said to have taken place on 19 December 2009 must be a false one. If, alternatively, the Appellant had not arrived in the UK until 11 May 2010 (as he originally claimed) the allegation could be genuine (and the Appellant correctly accused/prosecuted).

 

26.          The Appellant argues that Judge Burnett erred by failing to make a finding on when he arrived in the UK. In his skeleton argument, Mr Uddin said that the Respondent failed to respond to the direction.

 

27.          The Respondent did not fail to respond to the direction. The Respondent responded on 5 February 2024, prior to the hearing before Judge Burnett, maintaining the position taken before Judge Monson, that the Appellant arrived on 11 May 2010. The Respondent relied on the Appellant's answers given in the Screening Interview to the same effect.

 

28.          Judge Burnett noted that the Appellant had claimed in his Screening Interview that he entered the UK in May 2010 (as the Respondent asserts) and that he had only changed the date of arrival to December 2009 in response to the Respondent querying his ability to remain in Bangladesh between the December 2009 (the date of the alleged murder) and May 2010. The date of arrival of 17 December 2009 was given, for the first time, in a supplemental witness statement signed by the Appellant on 3 April 2024.

 

29.          Judge Burnett noted that the Appellant had no evidence to support his claim that he in fact entered the UK in December 2009 and that he had not sought to correct the allegedly erroneous date before Judge Monson. He rejected the Appellant's brother-in-law's evidence as to the date of arrival being May 2010 and recorded that there was no other documentary evidence supporting the Appellant's position.

 

30.          Read together, it is clear that Judge Burnett did not accept the Appellant's evidence that he had in fact arrived in the UK in December 2009.

 

31.          Even if we are wrong about that, and the Judge failed to address the date of arrival adequately or at all, we do accept that such an error would be a material one. It was not the Appellant's claim that he had been involved in a murder and was being lawfully prosecuted, nor was that the Respondent's position. It was the Appellant's claim that a false claim had been made against him and the Respondent's position that the documents relied upon were not reliable.

 

32.          We have carefully considered the Appellant's submissions on all three grounds which in our view amount to nothing more than mere disagreement with the Judge's findings. The Appellant has failed to identify any error of law in the Judge's decision making.

 

33.          For these reasons, the appeal fails. We find the Appellant's appeal has not identified a basis to disturb the FtT Judge's conclusions.

Notice of Decision

34.          The decision of the First-tier Tribunal did not involve the making of a material error of law and therefore stands.

J. SMEATON

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

31 January 2025