MH (Bangladesh) v Secretary of State for the Home Department [2025] EWCA Civ 688

[2025] EWCA Civ 688Case No CA-2024-001976
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Smith and Deputy Upper Tribunal Judge Farrelly
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 9 June 2025
Before
LADY JUSTICE KINGLORD JUSTICE SINGHLORD JUSTICE ARNOLD
Between
MH (BANGLADESH)AppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Russell Wilcox and Md Tariq Bin Aziz (instructed by Thompson & Co Solicitors Ltd) for AppellantJack Anderson (instructed by Government Legal Department) for RespondentHearing Hearing date : 7 May 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 9 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Introduction

[1]This is an appeal from a decision of the Upper Tribunal (Immigration and Asylum Chamber) (Upper Tribunal Judge Smith and Deputy Upper Tribunal Judge Farrelly) dated 19 June 2024 (“the UT Decision”) to dismiss the Appellant’s appeal against a decision of the First-Tier Tribunal (Immigration and Asylum Chamber) (First-Tier Tribunal Judge Cary) dated 25 September 2023 (“the Second FTT Decision”) which in turn dismissed the Appellant’s appeal against the Respondent’s decision dated 21 July 2022 to refuse the Appellant’s claim to asylum. I granted permission for a second appeal because the appeal raises an issue of principle as to the correct approach to evidence of surveillance and monitoring by foreign States of their political opponents’ sur place activities (i.e. activities in the United Kingdom), a question which continues to cause difficulties despite several previous decisions of this Court on the topic.

Background

[2]The Appellant is a citizen of Bangladesh born on 12 April 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 headed by Prime Minister Sheikh Hasina. He claimed that he had been particularly targeted following a visit to the UK where he had met with Tarique Rahman, the acting chairman of the BNP. He claimed that, on his return to Bangladesh, he noticed he was being followed by plain-clothed law enforcement officers, and went into hiding. He claimed that his homes were visited by police and that law enforcement officers threatened and harassed family members who were present. He claimed that he was abducted when travelling on public transport, beaten and threatened, but then released. He claimed that, after he arrived in the UK, police had attended his home in Bangladesh on several occasions. He claimed that, since his departure, two First Information Reports (“FIRs”) had been issued against him.[3]On 31 October 2018 the Respondent refused his asylum claim. She considered that he was 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.[4]On 24 January 2019 the First-Tier Tribunal (Immigration and Asylum Chamber) (First-Tier Tribunal Judge Bulpitt) dismissed the Appellant’s appeal (“the First FTT Decision”). Judge Bulpitt did not consider that the Appellant’s account of his abduction was credible ([20]–[23]). Nor did he accept that the Appellant had been followed and subsequently gone into hiding ([24]–[25]). He did not accept that the Appellant’s homes in Bangladesh had been visited ([26]-[27]). He did not accept the Appellant’s claim to be a Vice President of Jatiyatabadi Sechchasebak Dal (“JSD”), the volunteer wing of the BNP ([28]). He rejected as unreliable evidence provided by Mahidur Rahman in relation to that position ([29]) and four letters of support ([30]). He rejected as unreliable several charge sheets which had been produced ([32]). He considered that a number of newspaper articles and Facebook extracts which were said to show that the Appellant was involved in political activity which would bring him to the attention of the ruling party in Bangladesh were unlikely to have done so, and that it was far more likely that the documents indicated a person who seeking to construct an asylum claim ([33]). He found that there was no reasonably likely explanation for why the Appellant had suddenly become an object of the authorities’ attention in Bangladesh such that he had to flee when, on his own account, he had been a member of the BNP or its student wing for more than 30 years and involved in supporting and publicising its activities for nearly 10 years ([34]). He considered that a more likely explanation for the Appellant’s coming to the UK and claiming asylum was that the Appellant’s wife needed a kidney transplant ([35]). Taking all the evidence in the round and having given it anxious scrutiny, he did not find the Appellant’s claim to be credible ([36]).[5]Permission to appeal against the First FTT Decision was refused by the FTT on 3 April 2019 and by the Upper Tribunal on 25 June 2019. It is common ground that, as result, the Appellant can no longer rely upon his activities in Bangladesh as being sufficient to found his claim to asylum, although the Appellant does continue to rely upon those activities as part of the background to his claim.[6]On 19 January 2021 the Appellant made further representations to the Respondent. He now claimed to be the chief advisor to JSD’s UK branch. He claimed that, as a result of Facebook posts and participation in protests since his arrival in the UK, and coverage by Bangladeshi media, he had come to the attention of the authorities in Bangladesh. He enclosed, inter alia, what purported to be arrest warrants, a number of newspaper articles and a Human Rights Watch report. He asserted that his political activity had intensified. He also enclosed a WhatsApp message from his brother asserting police had attended the family home and threatened the Appellant, a letter from his sister-in-law and three alleged threats posted on Facebook.[7]The Respondent agreed to consider those representations as a fresh claim, but on 21 July 2022 the Respondent refused the claim with a right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002. The Appellant duly appealed to the FTT.[8]On 16 January 2023 the Appellant provided further evidence including Facebook posts and newspaper articles. On 10 July 2023 the Appellant provided further evidence including a photograph, a video clip and a newspaper article dated 21 May 2023. On 30 July 2023 the Appellant provided further evidence including newspaper articles, video transcripts and two alleged threats posted on Facebook.

The Second FTT Decision

[9]Having explained how the appeal arose at [1]-[5], Judge Cary described the hearing before him at [7]-[8]. Counsel then appearing for the Appellant had said that the fresh evidence since the First FTT Decision consisted of(a) a letter dated 22 November 2022 dealing with the FIRs and arrest warrants, and(b) the Appellant’s further sur place activities, which consisted of further posts on Facebook and attending demonstrations and meetings, the Appellant having been appointed General Secretary of an organisation called Zia Parishad (“ZP”) on 27 November 2022 by a Dr Imtiaz (see also [14]). Time had been spent at the hearing considering seven videos relied on by the Appellant.[10]Judge Cary summarised the Appellant’s evidence at [9]-[15] and [28]-[31], the evidence of Mahidur Rahman at [16] and the evidence of Md Moshiur Rahman at [17]-[18]. He summarised the parties’ submissions at [18]-[22].[11]Judge Cary outlined the basic legal principles which were applicable at [23]-[27]. The appeal was to be decided in accordance with the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (SI 2006/2525), and the Immigration Rules relating to international protection. In order to succeed on the appeal the Appellant had to demonstrate that he had a well-founded fear of persecution, or would be at real risk of serious harm, if returned to Bangladesh. The standard of proof was lower than the normal standard of the balance of probabilities. That might involve an assessment of the Appellant’s credibility. Credibility was not a test of memory. A genuine asylum seeker might give an implausible or inconsistent account of his experiences. Victims of ill-treatment and those who feared it might find it difficult to give an account for that very reason. Even if the Appellant had not told the truth about some matters, that did not necessarily mean that he was not entitled to international protection. The Appellant was entitled to have his case considered with “anxious scrutiny”, and there were dangers in making adverse credibility findings based on plausibility.[12]Applying Devaseelan (2002) UKIAT 00702, Judge Cary took the First FTT Decision as his starting point ([32]–[33]). He then considered the Respondent’s Country Policy and Information Note (Bangladesh: Political parties and affiliation) published in September 2020 (“the Political CPIN”). The Political CPIN noted that both the Awami League and the BNP had large auxiliary organisations, and referred to the treatment of certain BNP politicians ([34]–[35]). He noted that the Appellant relied on evidence about issues with the authorities in Bangladesh which was broadly the same as that produced to, and rejected by, Judge Bulpitt. Although the Appellant now relied in addition on the 22 November 2022 letter, that letter was not reliable ([39]–[44]). Judge Bulpitt’s reasons for rejecting the Appellant’s account were sound and cogent ([45]).[13]Judge Cary noted that the Appellant now relied on press cuttings from the Daily Nayadiganta dated 14 May and 5 and 28 September 2019 as well as other newspapers ([46]). He considered the Respondent’s Country Policy and Information Notice Bangladesh: Journalists, the press and social media published in January 2021 (“the Media CPIN”). The Media CPIN noted, inter alia, that many newspapers are outspoken; that media are polarised and tend to be aligned to one or other of the main political parties; and that there are a large number of newspapers (including some 1,191 daily newspapers) ([47]-[48]). Judge Cary found that none of the news articles assisted the Appellant in establishing what happened to him in Bangladesh. The fresh evidence he had produced was not sufficient to establish that he was targeted by the authorities during his time in Bangladesh. He had not even adduced evidence from his wife dealing with the events said to have incurred including the raids on the Appellant’s home ([49]).[14]Judge Cary then considered the Appellant’s activities in the UK. He referred at [50] to what Judge Bulpitt had said about the Appellant’s wife’s need for a kidney transplant, and to a letter dated 3 August 2023 showing that she was currently receiving dialysis. He noted at [51] that even opportunistic sur place activity could establish a claim for international protection, citing YB (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 360. It followed that an applicant who had participated in political protests or other activities in the UK simply to bolster their asylum claim could still succeed “unless the authorities in the home state are likely to treat the activities as insincere and opportunistic or are unlikely to know about them”.

Judge Cary went on:

“52. The Appellant must first establish that it is reasonably likely that the authorities in Bangladesh or others who would wish to cause him harm will become aware of his sur place activities. Where an individual relies upon activities in the UK, typically the issue of whether the authorities of the individual’s own country will be aware of those activities raises questions of, for example, surveillance and intelligence gathering at demonstrations or monitoring of internet activity (see, for example, YB (above) and AB & others (internet activity – state of evidence) Iran [2015] UKUT 00257.) Even if the Appellant can establish that he attended one or more protests, demonstrations, meetings and political debate and has engaged in other political activities including posting on Facebook that does not mean that he is reasonably likely to be at risk on return. It is not enough for the Appellant simply to establish that he was involved in such activities without producing any evidence that the authorities would be concerned about them or even that they were or would be aware of them. 53. General guidance on sur place activities can be found in BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36. I need to make a judgment about the risk on return for the Appellant having regard to his sur place activities. In this type of case the factors that bear on that judgment can be conveniently placed under four main heads: (i) the type of sur place activity involved; (ii) the risk that a person will be identified as engaging in it; (iii) the factors triggering inquiry on return of the person and; (iv) in the absence of a universal check on all entering the country, the factors that would lead to identification at the airport on return or after entry. For each factor there is a spectrum of risk. The factors are not exhaustive and may overlap.”
[16]Judge Cary then considered the Appellant’s claimed political appointments in Bangladesh and the UK at [54]–[59]. He noted a series of problems with the Appellant’s evidence concerning these. In particular, it was now said that the Appellant was chief advisor to JSD in the UK, but a letter from Mohammed Hussain, said to be General Secretary of JSD UK, relied on by the Appellant did not say when he was appointed, why or what his role was and made no mention of involvement with ZP. Nor did Moshiur Rahman refer to his appointment as chief advisor of JSD or his involvement with ZP. Mahidur Rahman did refer to the Appellant’s role as General Secretary of ZP, but not as chief advisor to JSD. There was nothing from Dr Imtiaz who was said to have appointed the Appellant as General Secretary of ZP to confirm that appointment or to explain the aims and activities of ZP. There was nothing from the Appellant’s wife or children as to his activities.

Judge Cary concluded this part of his decision as follows:

“… no one of any importance from the BNP in the United Kingdom appeared at the hearing to give evidence on the Appellants behalf which is surprising in view of his claimed involvement with the BNP both in the United Kingdom and Bangladesh. The only logical conclusion is that the Appellant is not as politically active in the UK as he claims to be.”
[17]Judge Cary then considered what was said about sur place activities in section 10 of the Political CPIN: the BNP had a large diaspora network; the government was said to have targeted expatriate Bangladeshis for criticising the government online; and cases had been filed against at least 12 expatriates in various countries, including the UK, for allegedly spreading anti-state rumours on social media ([60]). He also considered the Media CPIN, which indicated that the authorities in Bangladesh were sensitive to criticism of the state, and sometimes used legal provisions to harass, arrest, detain or prosecute persons who had published material deemed to be critical of the state. The Respondent’s view was that whether a person was at risk of persecution or serious harm from the state would depend on factors specific to them, for example, the subject matter and legality of the material published and the publicity attracted by such material ([61]).

Judge Cary went on at [62]:

“The Appellant clearly has been involved in some political activity in the United Kingdom as evidenced by the videos but I do not consider that his activities are at such a level that it is reasonably likely that he will be at risk on return. The Appellant has not produced anything to suggest that it is reasonably likely that the Bangladeshi High Commission (or political opponents of the BNP) in the UK film, photograph or monitor those who demonstrate or speak out in public against the regime or have informers among expatriate oppositionist organisations who can name and pass on intelligence about such people. For reasons explained below any social media/internet presence that Appellant currently has is also not reasonably likely to put him at risk on return.”
[19]Judge Cary then considered the evidence concerning posts on Facebook. The Appellant had produced nothing other than a series of posts, and therefore they had limited evidence value having regard to the guidance given in XX (PJAK – sur place activities – Facebook) Iran (2022) UKUT 0023 ([63]). He went on at [64]:
“There is nothing to suggest it is reasonably likely that that the intelligence services of Bangladesh monitor the internet for information about oppositionist groups. The evidence fails to show it is reasonably likely that the Bangladeshi authorities are able to monitor, on a large scale, Facebook accounts or other internet activity (such as TV broadcasts). It is not reasonably likely that the Bangladeshi state, or its proxies, are able to conduct, through bulk data extraction or peer surveillance, mass surveillance of the Bangladeshi diaspora’s Facebook accounts. More focussed, ad hoc searches will necessarily be more labour-intensive and are presumably reasonably likely to be confined to individuals who are of significant adverse interest. No evidence has been produced to show it is reasonably likely that the Appellant Facebook account or internet presence has been monitored by the Bangladesh authorities to date. His activities as I have found them to be are not sufficiently high profile to have raised his social graph to prompt a targeted search of Facebook or the internet generally.”
[20]Judge Cary noted the barriers to monitoring, as opposed to ad hoc searches, of Facebook material ([65]). He considered that the Appellant would no doubt close his Facebook account and not volunteer the fact of a previously closed account prior to removal ([66]).

Judge Cary expressed his overall conclusion at [67] as follows:

“No doubt that the Appellant has negative views in relation to the current government in Bangladesh like many millions of other individuals in Bangladesh and elsewhere but that does not mean it is reasonably likely that he will be at risk on return. The evidence is that criticism of the government is commonplace in Bangladesh and the concerns expressed by the Appellant about the authorities are no different in substance to those that are regularly expressed by citizens of Bangladesh in their own country without repercussions. No doubt the Appellant has gone to considerable efforts to bolster his case. That was certainly the view of FTTJ Bulpitt who when specifically considering the Facebook extracts and newspaper articles produced at the hearing concluded that they ‘indicate a person who is seeking to construct an asylum claim’ I agree with that assessment There is no reason why he should not be removed and returned to Bangladesh. I reject his claim to international protection.”

The Appellant’s appeal to the Upper Tribunal

[22]The Appellant applied to the FTT for permission to appeal to the Upper Tribunal, which was refused by the FTT. The Appellant then applied to the Upper Tribunal. There were nine grounds. Upper Tribunal Judge Gill granted the Appellant permission to appeal on one ground, namely ground 5(1): essentially, that the FTT had misapplied the guidance in relation to surveillance and monitoring of sur place activities in YB (Eritrea). The Appellant subsequently applied to expand the grounds he had permission to argue.

The UT Decision

[23]In the UT Decision the Upper Tribunal granted the Appellant permission to appeal on grounds 1-3 in addition to ground 5(1), but dismissed the appeal on all four grounds. It is not necessary to set out the Upper Tribunal’s reasons for rejecting ground 5(1), but it is pertinent to note the Upper Tribunal’s reasons for dismissing the other three grounds.[24]Ground 1 was that the FTT had failed to consider evidence about online threats (i.e. the threats posted on Facebook). The Appellant argued that the individuals posting those threats were associated with the Bangladeshi state. The Upper Tribunal rejected this ground for the following reasons: i) The inference that the threats were from state actors rested on claims as to the Appellant’s profile which had been rejected ([50]). ii) The Appellant sought to rely on passages of the Political CPIN which related to surveillance within Bangladesh, rather than outside it [(51)]. iii) There was no evidence to link any of the named individuals to the Bangladeshi state ([52]). iv) While Judge Cary did not specifically refer to the threats, there was no material error in the context of his other findings ([53]). They could not be imputed to the state and the Appellant did not claim to be at risk from non-state agents ([54]).[25]Ground 2 was that the FTT had failed to considered newspaper articles from 2022 and 2023. The Upper Tribunal noted that there was no challenge to the FTT’s consideration of the newspaper articles from 2019 ([55]). The Upper Tribunal noted that the newspaper articles of 2022–2023 were not specifically mentioned by counsel for the Appellant before the FTT when summarising the new evidence that was said to be of importance, and none of it was mentioned in the Appellant’s witness statement ([56]). The Upper Tribunal accepted that the articles relied on appeared to name the Appellant as General Secretary of ZP ([58]). The Upper Tribunal held that failure to refer to the articles was not material for the following reasons:
“64. We have already cited the Judge’s consideration of the witness evidence about the Appellant’s position within that organisation at [59] of the Decision. That points to omissions in the witness evidence and inconsistencies between what is said or not said about the Appellant’s roles. Those inconsistences alone are sufficient reason to reject the Appellant’s evidence about his roles. In any event, as the Judge there points out, there was no evidence explaining ‘the aims and activities of Zia Parishad’ which would be relevant to the level of interest which the Bangladeshi authorities might show in that organisation. 65. The Judge’s findings therefore about the Appellant’s role in opposition to the Bangladeshi authorities coupled with his findings about the weight to be given to newspaper articles particularly where published online is sufficient for us to conclude that any failure to refer specifically to the 2023 articles (which were not mentioned in the Appellant’s statement postdating those articles or the submissions made about relevant evidence) is not material. That evidence could make no difference to the outcome in light of the other findings.”
[26]Ground 3 was that the FTT had failed to consider news broadcasts about the Appellant’s sur place activities. The Upper Tribunal noted that Judge Cary set out the content of the video evidence which he was shown ([67]). The Upper Tribunal accepted that the videos appeared to show the Appellant criticising the Bangladeshi authorities and calling for new elections ([68]). The Upper Tribunal noted that Judge Cary had considered the video evidence and held that he was entitled to reach the conclusion that the Appellant’s level of activity would not place him at risk ([69]–[70]).

The Appellant’s grounds of appeal

[27]The Appellant having withdrawn grounds 2 and 3, the Appellant has permission to appeal on grounds 1 and 4. These are as follows:
“1. The Upper Tribunal was wrong to consider that the First-tier Tribunal Judge properly applied the guidance in YB (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 360. First, it is wrong in principle to suggest, as the Upper Tribunal did, that any risk arising out of surveillance of sur place activities is dependent upon a prior interest of the surveilling authorities in an individual appellant: surveillance can give rise to such interest. Secondly, the Upper Tribunal was also wrong to hold that the guidance was properly applied notwithstanding the First-tier Tribunal Judge’s inadequate consideration of online threats against the Appellant, his failure to have regard to newspaper articles of the Appellant’s sur place activities, and his failure properly to consider news broadcasts about the Appellant’s sur place activities. 4. The Upper Tribunal was wrong to hold that the First tier Tribunal Judge gave proper account to online evidence in relation to the threats received by the Appellant, the newspaper articles of the Appellant’s sur place activities, and the news broadcasts of the Appellant’s sur place activities, in light of the First-tier Tribunal Judge’s purported application of XX (PJAK – sur place activities – Facebook) Iran (2022) UKUT 0023 and more generally.”

The standard of proof and credibility in asylum cases

[28]The principles concerning the standard of proof and credibility in asylum cases were recently reviewed by Singh LJ in MAH (Egypt) v Secretary of State for the Home Department [2023] EWCA Civ 216 at [49]-[67]. In very brief summary, the so-called “lower standard of proof” which applies can be more accurately described as an assessment of risk. In assessing the applicant’s credibility, it is important to keep this in mind, as well as the well-known requirement for the “most anxious scrutiny”. Guidance for the assessment of credibility was given by Green LJ in SB (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 160 at [46], but that guidance is neither exhaustive nor a checklist, and everything depends on the circumstances of the individual case.

The role of an appellate court or tribunal

[29]There have been many recent authorities in both the Supreme Court and this Court on the need for appellate courts and tribunals to be cautious before interfering with findings of fact and evaluative assessments by lower courts and tribunals, and in particular specialist tribunals such as the FTT. For present purposes it is sufficient to cite Lord Hamblen’s summary in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22, [2022] 1 WLR 3784 at [72]:
“It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. In particular: (i) They alone are the judges of the facts. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. It is probable that in understanding and applying the law in their specialised field the tribunal will have got it right. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] AC 678 per Baroness Hale of Richmond at para 30. (ii) Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49; [2011] 2 All ER 65 at para 45 per Sir John Dyson. (iii) When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19; [2013] 2 AC 48 at para 25 per Lord Hope of Craighead.”

Ground 1

[30]The principal issue raised by ground 1 is whether the FTT erred in law in its treatment of evidence of surveillance and monitoring by the then Bangladeshi government of the Appellant’s sur place activities. This issue has been considered in several previous decisions of this Court.[31]In YB (Eritrea) v Secretary of State for the Home Department (cited above) YB was an Eritrean national who claimed asylum, relying both on activities inside Eritrea and on sur place activities, and in particular participation in demonstrations outside the Eritrean embassy. The Immigration Appeal Tribunal rejected his claim. It did not accept that he had left Eritrea because of a fear of persecution for political reasons, and this Court held that it was entitled to do so. The IAT also rejected his reliance on sur place activities, relying inter alia on the fact that YB could not point to any evidence which indicated that the authorities in Eritrea had the means and inclination to monitor the activities of expatriates in the UK. In that context, Sedley LJ said at [18]:
“ … the tribunal, while accepting that the appellant’s political activity in this country was genuine, were not prepared to accept in the absence of positive evidence that the Eritrean authorities had ‘the means and the inclination’ to monitor such activities as a demonstration outside their embassy, or that they would be able to identify the appellant from photographs of the demonstration. In my judgment, and without disrespect to what is a specialist tribunal, this is a finding which risks losing contact with reality. Where, as here, the tribunal has objective evidence which ‘paints a bleak picture of the suppression of political opponents’ by a named government, it requires little or no evidence or speculation to arrive at a strong possibility — and perhaps more — that its foreign legations not only film or photograph their nationals who demonstrate in public against the regime but have informers among expatriate oppositionist organisations who can name the people who are filmed or photographed. Similarly, it does not require affirmative evidence to establish a probability that the intelligence services of such states monitor the internet for information about oppositionist groups. The real question in most cases will be what follows for the individual claimant. If, for example, any information reaching the embassy is likely to be that the claimant identified in a photograph is a hanger-on with no real commitment to the oppositionist cause, that will go directly to the issue flagged up by art 4(3)(d) of the [Qualification] Directive [i.e. whether the activities will expose the applicant to persecution or serious harm if returned].”
[32]In EM (Zimbabwe) v SSHD [2009] EWCA Civ 1294 this Court considered a claim that EM would be at risk on return to Zimbabwe because of sur place activities. Patten LJ at [27] identified the real issue as being “…whether the appellant’s activities were such as to have come to the attention of the CIO [Zimbabwean intelligence] in this way”. EM could not produce positive evidence that her activities were known to the regime, but argued that there was country guidance about the high level of monitoring and that this sufficed. In that context, Patten LJ said at [28]:
“The [country] guidance in HS requires the Tribunal to take into account that there is active scrutiny by the CIO of MDC activities in the UK. But it goes too far to say that that creates a presumption that the system of monitoring is somehow foolproof. In most cases …. the issue of disclosure will be a matter of inference and degree. There will rarely, if ever, be case-specific evidence as to whether the appellant’s activities are known to the CIO and it will therefore normally be unrealistic to attempt to divorce the issue of whether those activities have become known to the regime from the question of whether they would be of any real concern to it. The more significant the political activity, the more likely that it will become apparent and therefore be of interest to those monitoring it.”
[33]In TM (Zimbabwe) v Secretary of State for the Home Department [2010] EWCA Civ 916 Elias LJ said:
“27. A further issue with respect to sur place activities is whether they are likely to be known to the authorities in the home state. It is not necessary, and indeed would usually be impossible, for the claimant to produce direct evidence that the authorities have such knowledge. It may depend upon the rigour with which the state seeks to police and stamp out dissident or opposition conduct. In YB (Eritrea), Sedley LJ observed (para 18): … 28. In HS, still extant country guidance case relating to Zimbabwe, the AIT recognised that the CIO send infiltrators into the UK to discover who is opposing the regime, and spent considerable resources on that objective (para 104). 29. That is not to say, however, that relatively minor sur place activities will necessarily be known to the Zimbabwe authorities. In EM (Zimbabwe) … one of the issues considered by the Court of Appeal was whether the authorities in Zimbabwe would necessarily become aware of low level sur place activities. This court held that notwithstanding the guidance given in HS that there was careful scrutiny of opposition activities in the UK, it did not follow that the only reasonable inference was that such low level activities would be likely to be known to the authorities. Patten LJ … observed (paras 28-29): … 30. This is the principle which we must apply when reviewing these AIT decisions. It means that a conclusion by an AIT that low level sur place political activity is likely to be not known to the authorities in Zimbabwe will be difficult to challenge.”
[34]In WAS (Pakistan) v Secretary of State for the Home Department [2023] EWCA Civ 894, [2023] Imm AR 1723 WAS claimed to fear persecution if returned to Pakistan. WAS relied on sur place activities on behalf of a Pakistani opposition group (MQM-L) led by an individual, AH, in London. There was detailed evidence about the group before the Upper Tribunal, including an expert report about the extent to which the Pakistani authorities were likely to be aware of its activities. The evidence was that the seniority of an MQM-L member was not relevant to the level of risk they might face. The authorities wanted to eliminate AH and his powerbase. The fact that AH was in London made it more likely that the authorities were monitoring activity by MQM-L there. There was background evidence as to the likelihood of security forces monitoring MQM-L on the ground.[35]The Upper Tribunal had rejected the claim that WAS would be at risk in large part because:(i) it rejected expert evidence that there was a real risk that members of the group would give information to the Pakistani authorities to curry favour and that those responsible for social media posts would be identified by informers;(ii) there was not enough evidence to draw conclusions about “the level and mechanics of” monitoring in the UK; and(iii) although the security services could detect social media posts, they did not have the resources or capacity to detect all relevant posts, let alone to identify those responsible.[36]In that context Elisabeth Laing LJ said:
“84. I paraphrase a question which Phillips LJ asked Mr Holborn in argument, ‘What evidence did the UT expect?’ It is very improbable that there would be any direct evidence of covert activity by the Pakistani authorities, whether it consisted of monitoring demonstrations, meetings and other activities, monitoring social media, or the use of spies or informers. I do not consider that Sedley LJ was suggesting, in paragraph 18 of YB (Eritrea), that a tribunal must infer successful covert activity by a foreign state in the circumstances which he described. He was, nevertheless, making a common-sense point, which is that a tribunal cannot be criticised if it is prepared to infer successful covert activity on the basis of limited direct evidence. Those observations have even more force in the light of the great changes since 2008 in the sophistication of such methods, in the availability of electronic evidence of all sorts, and in the ease of their transmission. To give one obvious example, which requires no insight into the covert methods which might be available to states, it is very easy for an apparently casual observer of any scene to collect a mass of photographs and/or recordings on his phone, without drawing any adverse attention to himself, and then to send them anywhere in the world. 85. I consider that, on this aspect of the case, the UT erred in law by losing sight of the fact that direct evidence about ‘the level of and the mechanics of monitoring’ in the United Kingdom is unlikely to be available to an asylum claimant or to a dissident organisation, and by imposing too demanding a standard of proof on A. … ”
[37]It can be seen from the cases considered above that the FTT (and the Upper Tribunal if remaking an FTT decision) must not impose an unrealistic evidential burden upon asylum applicants who rely upon sur place activities. It is inherently unlikely that an applicant for asylum will be able to adduce direct evidence of covert surveillance and monitoring by a foreign state. Accordingly, tribunals are not merely entitled, but required, to use their common sense.[38]As Singh LJ pointed out during the course of argument, however, there are limits to this. As Elisabeth Laing LJ observed in the passage I have quoted from WAS (Pakistan), a tribunal can, and should, take judicial notice of the ease with which persons attending a demonstration can be photographed and filmed and the resulting photographs and films transmitted abroad. Similarly, a tribunal can, and should, take judicial notice of the fact that publicly-accessible websites and social media postings can readily be monitored by electronic means. Beyond the fact that it is generally understood that targeted monitoring is technically easier, but more resource-intensive, than bulk monitoring, however, the technical capabilities of methods of monitoring is a matter that requires expert evidence, not least because(i) states differ in their capabilities and(ii) such capabilities change over time.[39]Furthermore, as Patten LJ made clear in EM (Zimbabawe), the question of the capacity of the foreign state to carry out surveillance and monitoring cannot realistically be divorced from the questions of whether the person in question is already of interest to the regime and, if not, whether the activities relied on are likely to make the person of interest to the regime. To take a simple example, if there is a large demonstration outside the Bangladesh High Commission in London, then there is a considerable difference between a person who stands at the front waving a placard bearing a slogan hostile to the government and a person who stands at the back with no placard: it is inherently more likely that the former will thereby get themselves noticed by government agents, photographed and targeted for further surveillance and monitoring than the latter.[40]What an applicant for asylum can be expected to produce is evidence to put news media coverage, social media posts and the like into context. To give an illustration from the present case, one of the newspaper articles relied upon by the Appellant which we were shown in the course of argument is an article from Daily Nayadiganta published online on 30 November 2022 headlined (in the English translation) “Full Committee of UK Zia Parishad formed” which reports that an 81-member committee has been formed. The Appellant’s case is that he is named in the article. Leaving aside an issue raised by the Upper Tribunal as to whether the person named in the article is the Appellant, Judge Cary was correct to draw attention to the absence of any evidence as to the aims and activities of ZP (see paragraph 16 above). Counsel for the Appellant tried to repair this omission by relying upon a paragraph from another online article from a different source dated 13 December 2022, but it does not appear that Judge Cary’s attention was drawn to the paragraph in question, and in any event this is no substitute for first-hand evidence from the Appellant or another witness.[41]Ground 1 has three limbs. The first and most important limb is that the Appellant contends that, despite citing YB (Eritrea), Judge Cary made the same error as the tribunals in that case and in WAS (Pakistan). The strongest support for this contention comes from the second sentence of [62]:
“The Appellant has not produced anything to suggest that it is reasonably likely that the Bangladeshi High Commission (or political opponents of the BNP) in the UK film, photograph or monitor those who demonstrate or speak out in public against the regime or have informers among expatriate oppositionist organisations who can name and pass on intelligence about such people.”
[42]I accept that, taken out of context, this sentence appears to suggest that Judge Cary did err by placing an unrealistic evidential burden on the Appellant. The sentence must be read in context, however. The immediate context is provided by the first and third sentences of [62], which are focussed on the level of the Appellant’s political activity and social media/internet presence. The broader context is provided by:(i) Judge Cary’s self-directions at [51]-[53], and in particular his recognition that what mattered was not so much the Appellant’s involvement in sur place activities as whether the Bangladeshi authorities would be concerned about them;(ii) Judge Cary’s unchallenged finding at [59] that the Appellant was not as politically active as he claimed to be;(iii) Judge Cary’s consideration of the Facebook posts relied upon by the Appellant at [63]-[66], and in particular the distinction he drew in [64]-[65] between bulk monitoring and more focused, ad hoc searches; and(iv) Judge Cary’s overall conclusion at [67]. Thus the sense of the second sentence is that there is no evidence that it is likely that the Bangladeshi government films, photographs or monitors all those who demonstrate or speak out in public against the regime in the UK. Bearing in mind the large number of people of Bangladeshi heritage in the UK, and the likelihood that a significant proportion of those are sympathetic to the BNP, I see nothing wrong in that statement. Overall, Judge Cary’s finding was 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. That was a finding which he was entitled to make.[43]The second limb of ground 1 is that the UT was wrong to suggest that the risk arising out of surveillance of sur place activities is dependent on the authorities having a prior interest in the individual in question because surveillance can give rise to such an interest. The short answer to this limb is that it is not suggested that the FTT made this error, and it is the FTT decision that matters. I would add that I am not persuaded that the UT made it either.[44]The third limb of ground 1 repeats the contentions which formed the subject of grounds 1 to 3 of the Appellant’s first appeal. Counsel for the Appellant particularly emphasised what he characterised as the FTT’s egregious failure to consider the videos relied upon. These grounds were considered in detail by the Upper Tribunal in the parts of the UT Decision which I have summarised in paragraphs 24-26 above. It suffices to say that I agree with the reasons given by the Upper Tribunal for rejecting them. In particular, so far as the videos are concerned, Judge Cary listed the ones relied upon at [8] and was plainly referring to these in the first sentence of [62]. He accepted that they showed political activity on the part of the Appellant in the UK, but not “at such a level that he was likely to be at risk on return”. That was a matter for his assessment, and I do not consider that that assessment is vitiated by his failure to discuss the contents of the videos individually.

Ground 4

[45]Counsel for the Appellant accepted in the course of argument that ground 4 added nothing to ground 1. It is therefore unnecessary to discuss it.

Conclusion

[46]For the reasons given above I would dismiss the appeal. It follows that it is unnecessary to consider a respondent’s notice belatedly served by the Respondent relying upon a new Political CPIN published in December 2024 following the change of government in Bangladesh on 2 August 2024 or the Appellant’s application to adduce expert evidence in response to that CPIN.[47]I agree.[48]I also agree.