Upper Tribunal (Immigration and asylum chamber), 2022-03-31, PA/12929/2018

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: PA/12929/2018

THE IMMIGRATION ACTS

Before

UPPER TRIBUNAL JUDGE FRANCES

DEPUTY UPPER TRIBUNAL JUDGE MALIK QC

Between

smsk (BANGLADESH)

(ANONYMITY DIRECTION made)

Appellant

and

SECRETARY OF STATE

FOR THE HOME DEPARTMENT

Respondent

Representation

For the Appellant: In person

For the Respondent: Mr Toby Lindsay, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction

1. This is remaking of the decision in the Appellant’s appeal against the Secretary of State’s decision of 25 September 2018 to refuse his protection and human rights claims.

Factual background

2. The Appellant is a citizen of Bangladesh and was born on 10 June 1975. His wife and two children, who are also citizens of Bangladesh, were born on 1 January 1986, 15 March 2012 and 18 July 2016 respectively.

3. The Appellant arrived in the United Kingdom as a visitor, along with his wife and their first child, on 30 December 2014. They, however, did not leave and overstayed. The Appellant’s second child was born in the United Kingdom.

4. The Appellant made a protection claim on 4 September 2017. He contended that he was a supporter of the Bangladesh National Party and had a dispute with a person in Bangladesh, who we shall refer as SC. He further contended that a case was filed against him by SC and he was thereafter assaulted. He claimed to be at risk of killing by SC or the ruling Awami League.

5. The Secretary of State refused the Appellant’s protection claim, and the associated human rights claim, on 25 September 2018. The Secretary of State took the view that his account was not credible and that there was no reasonable likelihood of persecution or real risk of harm in Bangladesh. The Secretary of State held that he was not a refugee or entitled to humanitarian protection. The Secretary of State also held that his removal from the United Kingdom would not be incompatible with Articles 2, 3 or 8 of the European Convention on Human Rights.

6. First-tier Tribunal Judge Manyarara heard the Appellant’s appeal from the Secretary of State’s decision on 3 February 2020 and dismissed it on all grounds in a decision promulgated on 28 February 2020.

7. The Appellant’s appeal from Judge Manyarara’s decision, brought with permission of Upper Tribunal Judge Stephen Smith, came before Upper Tribunal Judge Frances on 3 December 2021. The Secretary of State conceded at that hearing that Judge Manyarara’s decision was wrong in law. Accordingly, Judge Frances set aside that decision and retained the appeal for the purpose of re-making of the decision.

Resumed hearing

8. The Appellant appeared before us in person and the Secretary of State was represented by Mr Lindsay. The Appellant appeared to us to be a vulnerable adult on account of his mental health. Mr Lindsay agreed with our assessment. We accordingly treated the Appellant a vulnerable adult and conducted the hearing in accordance with the guidance given in Joint Presidential Guidance Note No 2 of 2010: Child, vulnerable adult and sensitive appellant guidance.

9. The Appellant adduced a written statement, an eTicket receipt, various documents concerning his health and the health of his wife, the birth certificate of their second child and two documents from the school. Mr Lindsay provided two policy documents entitled Country Policy and Information Note on Bangladesh: Background information, including internal relocation (version 3.0, April 2020) (“CPIN 2020”) and Family Policy Family Life (as partner or parent), private life and exceptional circumstances (version 16.0, December 2021). We also had the Secretary of State’s bundle filed previously including the interview record and various documents provided by the Appellant in support of his claim.

10. The Appellant gave evidence by adopting his statement. Mr Lindsay cross-examined him with care and sensitivity. We then heard closing submissions from Mr Lindsay and the Appellant respectively. We reserved our decision at the conclusion of the hearing.

Grounds of appeal

11. There are three grounds of appeal available to the Appellant. First, that his removal would breach the United Kingdom’s obligations under the Refugee Convention. Second, that his removal would breach the United Kingdom’s obligations in relation to persons eligible for a grant of humanitarian protection. Third, that his removal would be unlawful under section 6 of the Human Rights Act 1998 as it would be incompatible with his human rights. We proceed on the basis that the Appellant seeks to pursue all three grounds of appeal.

Burden and standard of proof

12. The burden of proof is on the Appellant, but the standard of proof is lower than the balance of probabilities. In order the qualify under the Refugee Convention, the Appellant is required to show a reasonable degree of likelihood that he would be persecuted in Bangladesh. In order to qualify for humanitarian protection, the Appellant is required to show that there are substantial grounds for believing that he would face a real risk of suffering serious harm. The same lower standard of proof applies in relation to human rights grounds under Articles 2 and 3. So far as Article 8 is concerned, if it is engaged, the Secretary of State bears the burden of showing that the interference with the protected right is proportionate.

Findings

Protection claim

13. Mr Lindsay accepted on the lower standard of proof that the Appellant had a dispute with SC in Bangladesh and that he was a supporter of the Bangladesh National Party. We accordingly make our assessment by accepting the Appellant’s underlying claim based on these two propositions.

14. The Appellant explained in the evidence that he was assaulted by SC and his men when he was in Sylhet. He, however, confirmed that he did not report the incident to the authorities. He stated that he was scared and that the authorities, being influenced by SC, would not assist him. In his asylum interview, he referred to an incident in Chittagong when he was assaulted by SC and added that it had been reported to the police. The Appellant’s account is inconsistent. In addition, these incidents, on the Appellant’s own account, took place many years ago. We do not accept that SC still has an interest in the Appellant or is a person with the ability or resources to track him on return to Bangladesh. The Appellant has failed to adduce sufficient evidence to show SC is a person of political profile or influence in Bangladesh. There is no evidence before us as to SC’s resources or abilities. The Appellant has provided no comprehensible reason in his evidence as to why SC would still have such an interest in him so that he might track and harm him on return.

15. In any event, if, on return to Bangladesh, SC is able to track the Appellant, he would be able to obtain protection from the local authorities. As Lord Hope noted in Horvath v Secretary of State for the Home Department [2000] UKHL 37 [2001] AC 489, the obligation to afford refugee status arises only if the person’s own state is unable or unwilling to discharge its own duty to protect its own nationals. In order to satisfy the fear test in a non-state agent case, the applicant for refugee status must show that the persecution which he fears consists of acts of violence or ill treatment against which the state is unable or unwilling to provide protection. Lord Clyde added that an entitlement, for this purpose, to an absolutely guaranteed immunity is beyond any realistic practical expectation. Lord Clyde further noted that there must be in force in the country in question a criminal law which makes the violent attacks by the persecutors punishable by sentences commensurate with the gravity of the crimes, the victims as a class must not be exempt from the protection of the law and there must be a reasonable willingness by the law enforcement agencies, that is to say the police and courts, to detect, prosecute and punish offenders. There is insufficient evidence before us to show that such protection would not be available to the Appellant on return to Bangladesh. The CPIN 2020, at paragraph 6, by reference to paragraph 2.3 of the note on actors of protection, provides that Bangladesh has a functioning system of policing and criminal justice, although it is highly politicised and corruption is prevalent. The Appellant has provided no sensible reason in his evidence as to why he could not avail himself of the protection in Bangladesh.

16. The fact that the Appellant was a supporter of the Bangladesh National Party in Bangladesh does not mean he would either be targeted for that reason by the ruling Awami League or the authorities would be unwilling to provide protection. The Appellant does not claim to be an office holder of the Bangladesh National...