Tribunals “required to use common sense” in claims of monitoring by a foreign state

The Court of Appeal has issued a welcome corrective to the tribunals, telling them not to impose an “unrealistic evidential burden” on asylum applicants who claim that they are subject to monitoring by their home government. The case is MH (Bangladesh) v Secretary of State for the Home Department [2025] EWCA Civ 688.

Background

The appellant is a citizen of Bangladesh who arrived in the UK on 13 January 2017 with his family and claimed asylum on 8 February 2017. He claimed that he was at risk because of his actions as a member of the Bangladesh National Party and that since his arrival in the UK police had visited his home in Bangladesh several times and two First Information Reports had been issued against him.

The asylum claim was refused on 31 October 2018. The Home Office decision maker found that he was a low level supporter of the Bangladesh National Party. It was not accepted that the appellant had come to the attention of authorities in Bangladesh or that he would be at risk on return.

The First-tier Tribunal dismissed his appeal on 24 January 2019. The judge did not consider the appellant to be credible and considered it unlikely that his political activity would have brought him to the attention of the ruling party in Bangladesh.

Permission to appeal the First-tier Tribunal’s decision was refused and the appellant became appeal rights exhausted. On 19 January 2021 he made further submissions to the Home Office including evidence that he had come to the attention of the authorities in Bangladesh through social media posts and involvement in protests in the UK. The further submissions were refused but the Home Office accepted that they amounted to a fresh claim and so the appellant was given the right to appeal the decision to the tribunal.

The appellant provided further evidence for the appeal, including newspaper articles, video transcripts and posts and alleged threats on Facebook. At the appeal, the First-tier judge accepted that the appellant had been involved in political activity in the UK but said that he had not provided evidence to suggest that these activities were monitored by the Bangladeshi High Commission or political opponents of the Bangladesh National Party..

In relation to the Facebook posts, the judge referred to the guidance in XX (PJAK – sur place activities – Facebook) Iran (2022) UKUT 0023 and said that there was:

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.

The judge considered that the appellant would close his Facebook account prior to his removal from the UK. The appeal was dismissed.

Permission to appeal was refused by the First-tier Tribunal but granted by the Upper Tribunal which then dismissed the appeal.

The Court of Appeal

The appellant was granted permission to appeal to the Court of Appeal. It was argued that the Upper Tribunal had erred in considering that the guidance in YB (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 360 (on the monitoring of sur place activities) had been properly applied by the First-tier Tribunal.

The Court of Appeal reviewed several of the relevant authorities, including EM (Zimbabwe) v SSHD [2009] EWCA Civ 1294 where although EM could not provide evidence that her activities were known to the government, there was country evidence showing that there was a high level of monitoring and this was held to be sufficient evidence.

The court said [at 37] that:

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.

This obviously does not mean a free-for-all and the court goes on to say that tribunals should “take judicial notice” of the fact that it is very easy to attend and be photographed at a demonstration. However tribunals should also take notice of the fact that publicly available websites and social media posts can easily be monitored. The court said that the technical capabilities of a state to carry out monitoring will require expert evidence because of variations between countries and also because these are subject to change over time.

On the point of who a state will choose to monitor, the court said that the question of whether the foreign state is able to carry out the surveillance and monitoring should be considered together with the question of whether the person is already of interest to the regime or, if not, whether the activities relied on in the claim are likely to make them of interest. The sort of evidence that can be expected from someone claiming asylum on this basis is “evidence to put news media coverage, social media posts and the like into context”.

Applying all of this to the case under appeal, the court held that the First-tier Tribunal had been entitled to make the findings it did and the appeal was dismissed. 

Conclusion

Although the appellant here was unsuccessful, the guidance given here by the Court of Appeal should help both practitioners and tribunals with the correct approach in similar cases.