MU v Secretary of State for the Home Department

Crown Copyright© LORD JUSTICE UNDERHILL:

1. The respondent in this appeal is a national of Bangladesh, born on 18 February 1989. He came to this country lawfully on 7 February 2016 as the spouse of a British citizen and was subsequently granted further leave to remain until 14 October 2021. On 6 November 2020 he pleaded guilty to a charge of rape and was sentenced to 6 years' imprisonment. He was notified that the Secretary of State was minded to make a deportation order against him as a foreign criminal. In response he made both a protection and a human rights claim. By a decision dated 3 October 2023 the Secretary of State refused those claims and a deportation order was made.

2. The respondent appealed to the First-tier Tribunal (“the FTT”) under section 82(1) of the Nationality, Immigration and Asylum Act 2002. By a decision dated 12 December 2023, FTT Judge Veloso dismissed the appeal against the refusal of his protection claim, upholding as part of that decision his exclusion from the protection of the Refugee Convention under section 72 of the Act, but allowed it as regards the human rights claim on the basis that there was a real risk, if he were returned to Bangladesh, that he would suffer serious ill-treatment on account of his political views and accordingly suffer a breach of his rights under Article 3 of the European Convention of Human Rights.

3. The Secretary of State appealed to the Upper Tribunal (“the UT”), but her appeal was dismissed by a decision of UT Judge Lane and deputy UT Judge Hanbury, promulgated on 29 February 2024. This is the Secretary of State's appeal against that decision, with the permission of Andrews LJ. She has been represented by Mr Zane Malik KC and the respondent by Mr James Collins of counsel, who also appeared in both tribunals below. We are grateful to both of them for their helpful submissions.

4. Notwithstanding that formally this appeal is against the decision of the UT, our focus must be on the decision of the FTT. I can summarise the judge's reasons as regards the Article 3 issue as follows. At paras. 28–43 she recites the evidence on which the respondent relied as showing that there was a real risk that if he were returned to Bangladesh he would suffer ill-treatment. That evidence can be sufficiently summarised for present purposes as follows. (1) It was his evidence both in his screening and subsequent substantive interviews and in his evidence to the tribunal, written and oral, that he had been actively involved in the student wing of the Bangladesh National Party ("the BNP"). At the date of the hearing in the FTT the BNP had for many years been the main opposition party, the government being in the hands of the Awami League: that is no longer the case, but I will return to that later. The respondent gave some details of the roles he had held, but he emphasised in particular that he had been active in the "group" of Ilyas Ali, a prominent BNP politician who disappeared in 2012 and is believed to have been murdered. Mr Ali "would ask him to arrange meetings and gather people". He produced photographs of himself in various BNP roles, including a photograph alongside Mr Ali's wife. (2) Since he had come to this country in early 2016, he had ceased to be a member of the BNP. Although he had attended some BNP rallies, he had not done so since 2018 or 2019. (3) He had returned to Bangladesh twice on a visit since he came to this country. The first visit was in 2017 where he had encountered no trouble of any kind. However he had visited again in 2019 for his mother's funeral, on which occasion he had suffered an attack by Awami League supporters. At para. 30 of the reasons, the judge summarised the account given in his substantive interview as follows: "The attack in 2019 took place 2 to 3 weeks after his arrival in Bangladesh. He was attacked when out buying a cow following his mother’s funeral, as is the custom. He was well-known in the area. He knew his 4 attackers as Awami-League supporters. They shouted at him that he would be kidnapped like Ilyas Ali. They fired at the car, which missed him and hit the car. 3 days later when walking in the street he was hit with something from behind and suffered cuts to his head. He did not report either matter to the police, who support the ruling party. He returned to the United Kingdom 2 weeks later, unable to get a ticket sooner." In his oral evidence, summarised at para. 34, he said that after the attack he did not go back to the family home and stayed in various other places until he could get a flight back to the UK.

5. A considerable part of this section of the reasons is concerned with evidence that the respondent was, or in any event had recently been, suffering from a severe depressive illness. This appears to have been regarded as important because he relied on it as explaining why, in his substantive asylum interview, he had given various unsatisfactory answers about the extent of his role in the BNP. For reasons which will appear, however, I do not need to summarise this part of the evidence.

6. The judge was also referred to the then most recent Home Office Country Policy and Information Note ("CPIN") considering the political situation in Bangladesh, which dated from 2020. Section 2.4 of the CPIN is headed "Risk". It falls into two parts, paragraphs 2.4.1–2.4.10, headed "State risk", and paragraphs 2.4.11–2.4.17 headed "Politically motivated violence". Broadly speaking, the former addresses persecution or ill-treatment by state authorities and the latter by non-state actors. Paragraphs 2.4.7–2.4.8 read as follows: "2.4.7 In general, low-level members of opposition groups are unlikely to be of ongoing interest to the authorities and are unlikely to be subject to treatment that is sufficiently serious, by its nature or repetition, to amount to persecution. Opposition party activists, particularly those whose position and activities challenge and threaten the government and raises their profile, may be subject to treatment, including harassment, arrest and politically motivated criminal charges by the police or non-state actors, which amounts to persecution. 2.4.8 Decision makers must consider whether there are particular factors specific to the person which would place them at real risk. Each case must be considered on its facts with the onus on the person to show that they would be at real risk of serious harm or persecution on account of their actual or perceived political affiliation." Section 2.5 is headed "Protection" and deals with the availability of state protection from persecution or serious harm. Unsurprisingly, paragraph 2.5.1 says that where the risk in question is from the state, protection will not be available, but paragraph 2.5.2 reads: "Where the person’s fear is of persecution and/or serious harm from non-state actors, decision makers must assess whether the state can provide effective protection." Section 2.6 is headed "Internal relocation". For our purposes, I need only note paragraph 2.6.3 which reads: "If the person’s fear is of persecution or serious harm from non-state actors, such as supporters of rival political parties or factions within the same party, that threat may be localised. Relocation to another area of Bangladesh is likely to depend on the profile of the persecutor as well as the facts of the case and the individual circumstances and profile of the person."

7. At para. 45 of her reasons, the judge refers to the CPIN. She quotes four passages, but the only one of those which I have noted above which she quotes is paragraph 2.4.7.

8. The judge's dispositive reasoning appears at paras. 46–49 of her reasons, which I should set out in full, save that I omit a passage related to what I might call the mental health question: "46. Considering all the evidence in the round and applying the lower standard relevant in international protection cases, I find the appellant’s evidence that he was politically active in Bangladesh, attended some events in the United Kingdom and was attacked on the occasion of his visit back to Bangladesh in 2019 credible. He remained consistent about his activities in Bangladesh, the events that occurred there, which he first mentioned at screening interview and maintained up to an including in oral evidence. The appellant remained consistent about the core of his account, namely his activities in Bangladesh and the attack he sustained in 2019. His evidence is furthermore consistent with the contents of the photographs and letter from Bangladesh and the background evidence.

47. He returned to Bangladesh in 2017 to visit his late mother, who was ill at the time. he was not attacked until his second visit in 2019, which he made to attend his mother’s funeral. Whilst he did not leave immediately after being shot at, instead left 2 weeks later, he did not return to the family home and stayed at different addresses.

48. Well-known in his home area, where he was attacked, I find to the lower standard that he will come to the attention of the Awami League members and supporters on his return to Bangladesh, on the basis of his previous activities and when asked any questions about his background and activities whilst in the United Kingdom, about which he cannot be expected to lie, be this on arrival at the airport or once he has left the airport. These activities are furthermore known by members of the Bangladeshi community in Portsmouth, who have contact with and/or contacts in Bangladesh. The appellant’s mental health symptoms will also attract further attention. The disappearance of Ilyas Ali remains a contentious issue, as shown in the recent news articles concerning Ilyas Ali’s wife. The situation in Bangladesh has not changed since he left the country. Sufficiency of protection and internal relocation are therefore not options available to him.

49. Considering all the evidence in the round, I find that the appellant has shown a real risk of ill-treatment contrary to Article 3 ECHR if deported to Bangladesh."

9. The Secretary of State appeals on two grounds as follows, "The Upper Tribunal erred in upholding the First-Tier Tribunal's decision because (1) the First-Tier Tribunal's approach to the Article 3 claim based on political activities was legally flawed; and (2) the First-Tier Tribunal had erred in relation to the evidence concerning mental health issues.”

10. I start with ground (1). I am persuaded that the judge's reasoning in the crucial paragraph 48 of her reasons is seriously flawed. The starting-point must be that there was no evidence before her that the respondent was of any interest to the state authorities. The CPIN shows that the BNP had millions of members in Bangladesh who are not for that reason alone subject to ill-treatment from the state authorities. Although the respondent was, on the evidence, to some extent an active member of the BNP – whether his activities for it should be characterised as general or as part of Ilyas Ali's group – there is no suggestion that he was a high-level political figure, and the judge's findings went no further than that he had been "politically active" (see the beginning of para. 46). I note that there was no evidence that he had been stopped or checked in any way at the airport on his visits in 2017 and 2019. Such risk as the evidence demonstrated, and on which he relied, was from non-state actors, such as the Awami League supporters who were responsible for attacking him in 2019. But in the case of a risk of that kind, it is always necessary to consider the availability of state protection and the possibility of internal relocation. Those points were, as we have seen, expressly drawn attention to in the CPIN, but they reflect well-known legal principles in this area. The judge failed to address those possibilities at all. As appears from the end of para. 48, she simply said that "therefore" – i.e. as a result of her previous findings – neither state protection nor internal relocation were options. That is, with respect, a non sequitur. The 2019 attack was by local Awami League activists in the respondent's home area of Sylhet where, as the judge noted, he was well known. Even if the view were taken that the police in Sylhet might not be prepared to offer realistic protection against such attacks, as to which I need express no view, it certainly does not follow that he would be at any risk of similar attacks if he relocated elsewhere in Bangladesh, to an area where he was not known, most obviously, though not necessarily, to Dhaka.

11. Mr Collins was not able to offer any real answer to this point. He submitted that the focus of the argument in the FTT had not really been on relocation or sufficiency of protection. Even if that were so, as to which we are in no position to form a view, both were necessary aspects of the Article 3 assessment, and the question of internal relocation at least featured heavily in the Secretary of State's decision letter. It was necessary for the judge to address that question with specific regard to the facts of the respondent's case. Mr Collins accepted that, whatever the degree of focus on the point in argument in the FTT, the Home Office presenting officer had made no concessions about it.

12. The questions of sufficiency of protection and internal relocation are not addressed by the UT in the single short paragraph of its judgment which contains its reasons, although the point featured in the Secretary of State's grounds of appeal and the reasons for the grant of permission by the FTT.

13. It follows that the FTT's decision, and thus also that of the UT upholding it, must be set aside. Mr Malik advanced some other arguments under ground (1), including an argument that the FTT's decision that the respondent was at risk on return was not open to the judge on the facts as found. But for reasons which will appear, I need not consider those points any further, nor indeed ground (2).

14. The next question is whether we should remit the appeal to either the FTT or the UT or re-make the decision ourselves using our powers under section 14(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007. That decision is affected by a fundamental change in the circumstances underlying the respondent's human rights claim. In August 2024, i.e. after the decisions of both the FTT and the UT, the Awami League government was overthrown and replaced by an interim government under the leadership of Muhammad Yunus, who belongs to no political party. In December 2024 the Secretary of State issued a new CPIN. So far as relevant for our purposes, I need only refer to the executive summary which contains the following statements: "Leaders, members, and supporters of political groups are unlikely to face persecution or serious harm from non-state and/or rogue state actors. Although politically motivated violence occurs, it has generally declined since the July and August protests. The number of people who are affected remains low in proportion to the size of the major parties. Leaders, members, and supporters of the BNP Jamaat-e-Islami (JeI) and their auxiliary (student and youth) organisations are unlikely to face persecution or serious harm from the state. Low-level supporters and members of the AL and auxiliary (student and youth) organisations, including a person who was simply a participant in a protest are unlikely to be of ongoing interest to the authorities. … In general, the state is able to provide effective protection to a person who fears a 'rogue' state and/or non-state actor. The onus is on the person to demonstrate that they would not be able to seek and obtain effective state protection. A person is likely to be able to internally relocate to escape persecution or serious harm by a rogue state and/or non-state actors, where the threat is localised. Where a claim is refused, it is unlikely to be certifiable as 'clearly unfounded' under section 94 of the Nationality, Immigration and Asylum Act 2002."

15. Mr Malik submits that that evidence is in practice incontrovertible and clearly establishes that the respondent, as a member and activist in the BNP, will no longer face any real risk of serious harm if returned. He submits that this court is in as good a position to make that decision as the UT or the FTT and that we should do so.

16. Mr Collins' response was that the CPIN did not show an unequivocal picture. He noted that the passage quoted said only that it was "unlikely" that BNP members or supporters would face persecution or serious harm from the government, and he drew our attention also to the final paragraph about the inappropriateness of certification. I am afraid that that is clutching at straws. It is quite clear that the term "unlikely" is used in this context to connote no real risk, and that is unsurprising in the context of the overthrow of the Awami League from whom the feared risks would emanate. In so far as the statement about certification implies a degree of uncertainty, it is evidently related to the possibility of risk to Awami League supporters: without going through the full text of the CPIN, one can see that, as I say wholly unsurprisingly, that is the area where there is the possibility of some risks continuing.

17. The truth is that the change of government has wholly changed the picture in such a way that there is no reason whatever to suppose that the respondent will be at risk of serious harm if returned.

18. I would for those reasons not only quash the decisions of the FTT and the UT, but exercise our jurisdiction to re-make the decisions by dismissing the respondent's human rights appeal. LORD JUSTICE BEAN: I agree. LADY JUSTICE KING: I also agree.