The core issue revolves around the correct approach to evidence of surveillance and monitoring by foreign states of their political opponents' sur place activities
Background:
The appellant is a citizen of Bangladesh who was born in 1968. On 13 January 2017, he entered the UK with his wife and two teenage sons. On 8 February 2017 he claimed asylum, after having been served with notice of illegal entry the previous day, on the basis that he would be at risk in Bangladesh due to his actions as a member of the Bangladesh National Party ("the BNP"), which was then in opposition to the Awami League government. He alleged persecution in Bangladesh, including being followed, having his homes visited, abduction, and the issuance of First Information Reports (FIRs) against him after meeting with a BNP leader in the UK.
The Secretary of State for the Home Department rejected his claim on 31 October 2018, as he was considered a low-level supporter of the BNP and did not accept that he had come to the attention of the authorities in Bangladesh or would be at risk on return. His claims were dismissed by both the First-tier Tribunal (FTT) and the Upper Tribunal (UT).
Decision:
The Court of Appeal (CoA) dismissed the appeal. The Court first reiterated the high bar that an appellant court must meet: "judicial caution and restraint" before interfering with findings of fact by specialist tribunals such as the FTT. There exists a prevailing presumption that the FTT’s ruling is correct unless there is a clear legal misdirection.
The Court also reiterated the high threshold established by case law of proving risk from sur place activities. While YB (Eritrea) suggests a lower evidentiary threshold for proving means and inclination of state monitoring by repressive regimes, the critical element remains whether the individual's specific activities are significant enough to attract adverse attention and lead to a real risk of persecution. The Judge found that it “had not been shown that the nature of the appellant's sur place activities was such as to be likely to place him at risk if he were to return to Bangladesh.” If the Court doesn't believe the level or sincerity of the political activity claimed, it then becomes much harder to argue it would attract state attention. The lack of any credible corroborating evidence from prominent BNP figures in the UK is highly damaging.
Implications:
This case highlights that sur place activities face significant scrutiny and that the critical element remains whether the individual's specific activities are significant enough to attract adverse attention and lead to a real risk of persecution. Moreover, it offers a good reminder that repeated adverse credibility findings against the appellant are an insurmountable hurdle. Even a fresh claim relying on sur place activities is weighed against this backdrop. The case implicitly reinforces the importance of consistent narratives and strong corroborating evidence from the outset.
The judgement highlights the ongoing challenges presented by online evidence, such as Facebook posts, newspaper articles, or videos. Merely showing online activities is insufficient. The case reinforces the need for meticulous evidence gathering and presentation, particularly in corroborating sur place activities and demonstrating their impact.
The fact that the issue "continues to cause difficulties despite several previous decisions" suggests a need for clearer, more unified guidance.
