Upper Tribunal (Immigration and asylum chamber), 2020-04-28, PA/07951/2019
| Jurisdiction | UK Non-devolved |
| Date | 28 April 2020 |
| Published date | 12 May 2020 |
| Hearing Date | 12 March 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/07951/2019 |
Appeal Number: PA/07951/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/07951/2019
THE IMMIGRATION ACTS
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Heard at Cardiff Civil Justice Centre |
Decision & Reasons Promulgated |
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On 12 March 2020 |
On 28 April 2020 |
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Before
UPPER TRIBUNAL JUDGE GRUBB
Between
JA
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr A Razzaq-Siddiq, counsel
For the Respondent: Mr C Howells, Senior Home Office Presenting Officer
DECISION AND REASONS
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Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order prohibiting the disclosure of publication of any matter likely to lead to members of the public identifying the appellant. A failure to comply with this direction could lead to Contempt of Court proceedings.
Introduction
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The appellant is a citizen of Bangladesh who was born on 1 January 1960. He left Bangladesh on 5 October 2005 and subsequently entered the United Kingdom as a visitor. His leave expired on 4 November 2005 and his subsequent application for leave outside the Rules was refused on 26 November 2009. He was served with an IS151A illegal entry notice on 8 December 2009.
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On 3 October 2018, the appellant claimed asylum. He claimed that he was at risk on return to Bangladesh because he was politically active with the BNP and a number of false allegations had been made against him by members of the Awami League. He feared persecution if he returned to Bangladesh.
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On 19 July 2019, the Secretary of State refused the appellant’s claims for asylum, humanitarian protection and under the European Convention on Human Rights.
The Appeal
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The appellant appealed to the First-tier Tribunal. In a decision sent on 29 September 2019, the First-tier Tribunal (Judge Suffield-Thompson) dismissed the appellant’s appeal on all grounds. The judge made an adverse credibility finding and rejected the appellant’s account that he was a BNP activist and that he would be at risk on return to Bangladesh. She also rejected the appellant’s claim under Art 8 of the ECHR.
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The appellant sought permission to appeal to the Upper Tribunal against the judge’s adverse decision dismissing his asylum claim. No challenge was made to her decision to dismiss the claim under the ECHR.
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Initially, the First-tier Tribunal rejected his application “as not admitted” because it was made out of time and the judge (Judge J K Swaney) declined to exercise her discretion to extend time. She also found the grounds not to be arguable.
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The appellant renewed his application to the Upper Tribunal. In a decision dated 17 December 2019 the Upper Tribunal (UTJ Finch) granted the appellant permission to appeal on the following basis:
“In her decision the Judge failed to give sufficient consideration to a number of pieces of evidence in the Appellant’s large bundle. In particular, she failed to take into account the letter from Mr. Miah and documents relating to the Appellant’s political activities in Bangladesh.
It is also clear that a large number of the documents had been translated and certified in the United Kingdom.
As a consequence, there were material errors of law in First-tier Tribunal Judge Suffield-Thompson’s decision and it is appropriate to grant permission to appeal”.
An Initial Point
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It will be clear from the history of this appeal which I have set out above that Judge Swaney, when considering the appellant’s application for permission to appeal, declined to admit the application as it was out of time and she declined to exercise discretion to extend time. When the renewed application came before the Upper Tribunal, it was, therefore, a case to which rule 21(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698 as amended) applied (see Bhavsar (late application for PTA: procedure) [2019] UKUT 196 (IAC)). In particular, by virtue of rule 21(7)(b):
“The Upper Tribunal must only admit the application if the Upper Tribunal considers that it is in the interests of justice for it do so”.
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In granting permission, UTJ Finch did not address this issue under rule 21(7). Before me, Mr Howells, who represented the Secretary of State, accepted that I could, and I should, exercise discretion under rule 21(7) to admit the application in the interests of justice in all the circumstances. I should then consider the merits of the appeal on the basis of the grounds.
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In my judgment, that is an appropriate course to take. Judge Finch’s grant of permission was, in effect, a conditional grant of permission which I can perfect by exercising discretion under rule 21(7)(b) to admit the application in the interests of justice and, thereafter, adopt Judge Finch’s grant of permission. I take into account all the circumstances including the merits of the application and I see no reason to disagree with Mr Howells’ invitation to admit the application. Consequently, I exercise discretion to admit the application in the interests of justice and I turn now to the merits of the grounds.
The Submissions
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Mr Razzaq-Siddiq, who represented the appellant, relied upon three grounds which, he submitted, demonstrated that the judge had materially erred in law in reaching her adverse credibility finding.
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First, he submitted that the judge had failed to take into account, as Judge Finch had eluded to in her grant of permission, a letter from Mr Miah at page 15 of bundle A. This letter, he submitted, complemented the letter from the appellant’s wife which the judge referred to in para 55 of her determination and supported her evidence that she had been harassed, verbally abused and threatened with kidnap by Awami League activists as a result of her husband’s political activism in Bangladesh. He pointed out that Mr Miah was the chairman of the local Kelayal Union Council and attested to these matters “following investigations by my people”. The judge had made no reference to this letter when she had concluded that she would give “little weight” to the letter from the appellant’s wife supporting his claim.
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Secondly, Mr Razzaq-Siddiq submitted that the judge had fallen into error by failing to take into account a number of documents contained within the respondent’s bundle. He relied upon on a supportive letter from the President of the BNP in Bristol (at A); further, he relied upon a number of documents relating to two false claims that the appellant said had been made against his father and himself in 2002 and 2013 respectively by Awami League members. The first relates to a claim against his father relating to land (at B) which the appellant explained at para 15 of his witness statement as follows:
“The letter to the Nawabgani Police Station is a claim made against the family land. When the dispute mentioned therein was initially raised my father was still alive. At this time BNP were in power, a community group, led by the Awami League made the claim against the land. This dispute was a direct retaliation of my appointment to 3rd in the BNP of our locality. This dispute is still ongoing”.
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He also relied upon a report document (at X) which related to an application for “anticipatory bail” in June 2004. Further, he relied upon a document amounting to a complaint by a person in the Awami League alleging, falsely he claimed, conspiracy to embezzle money which, as he explained in para 20 of his witness statement, was brought by the chairman of a company who was running for election in 2001 for the Awami League: “He had asked me to join the party and I had refused as a senior member of the BNP. [MR] was a manager within the company and it was him who brought the complaint. I had to attend the police station many times as a result of this complaint”. [At H]. Finally, he relied upon a letter from the BNP Branch in Dhaka supporting his claim to be a BNP activist and at risk.
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Mr Razzaq-Siddiq submitted that the judge had failed to take these documents into account. The plausibility of these documents was supported by the CPIN 2018 Report which spoke of “political motivated” charges being brought in Bangladesh (see para 6.1.11). He accepted that at para 54 the judge had made reference to “two Bangladeshi court cases against him” but, at para 57 the judge had said this about all the documents excluding the letter from his wife:
“The other documents before the Tribunal had been translated but not in the UK but in Bangladesh which does not comply with the Tribunal’s Practice Directions. There were some errors identified in the translations as well so overall, I gave them limited weight”.
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Mr Razzaq-Siddiq submitted that there was no requirement in the First-tier Tribunal’s Practice Directions that translations of documents should be made in the UK. In any event, as he took me through the documents, he pointed out that the vast majority had been translated by a company “Ace Language Services” based in Newport.
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Thirdly, Mr Razzaq-Siddiq criticised the judge’s assessment of a photograph at paras 51 and 52 of her...
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