The Common-Sense Approach to Sur Place Activities and State Surveillance: MH (Bangladesh) v SSHD Precedent

Introduction

MH (Bangladesh) v Secretary of State for the Home Department [2025] EWCA Civ 688 is a landmark decision of the England and Wales Court of Appeal (Civil Division) handed down on 9 June 2025. It arises from a second appeal by a Bangladeshi national (“the Appellant”) whose asylum claim was dismissed first by the First-Tier Tribunal (FTT), then by the Upper Tribunal (UT). The central legal issue was the correct approach to evidence of surveillance and monitoring by foreign States of their political opponents’ sur place activities (i.e. political acts undertaken in the United Kingdom). The Court of Appeal’s ruling clarifies the principles for fact-finding tribunals when assessing whether an applicant’s political activity in the host country is likely to be known—and pose a risk—on return to the home State.

Summary of the Judgment

The Court of Appeal dismissed the Appellant’s appeal against the UT’s refusal to overturn the FTT’s decision. The judges held that:

Tribunals must not impose an unrealistic evidential burden on asylum seekers to prove covert surveillance or monitoring by foreign States.
Common-sense inferences, informed by country evidence and the nature of the applicant’s activities, are essential.
Surveillance risk depends on four interrelated factors: (i) the type of sur place activity; (ii) the likelihood of identification; (iii) triggers for inquiry by the home State on return; (iv) means of detection at entry points.
The FTT and UT had properly applied established guidance (notably YB (Eritrea) v SSHD and subsequent cases) and had evaluated the Appellant’s evidence—including Facebook posts, newspaper articles, videos and witness statements—with “anxious scrutiny”.
No legal error arose from the FTT’s analysis of social-media evidence or its assessment of the scale and intensity of the Appellant’s political activities in the UK.

Analysis

Precedents Cited

The Court of Appeal reviewed and reaffirmed key authorities on sur place activities and evidential burdens:

YB (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 360: Sedley LJ emphasized that, where country evidence “paints a bleak picture of suppression of political opponents,” tribunals can infer that foreign embassies film, photograph and monitor expatriate demonstrations and maintain informers—even without direct proof.
EM (Zimbabwe) v SSHD [2009] EWCA Civ 1294: Patten LJ held that while active scrutiny by the Zimbabwean intelligence (CIO) is a factor, it is not a presumption of foolproof monitoring. The significance and prominence of the applicant’s activity are crucial to infer whether it attracts the regime’s attention.
TM (Zimbabwe) v SSHD [2010] EWCA Civ 916: Elias LJ reinforced that low-level sur place activities may not be known to the home State. Tribunal findings on this point—grounded in the nature and scale of activities—are to be respected absent clear legal misdirection.
WAS (Pakistan) v SSHD [2023] EWCA Civ 894: Elisabeth Laing LJ held tribunals must recognize the inherent difficulty for asylum seekers in adducing direct evidence of covert surveillance. Common-sense inferences are permissible, but technical specifics of monitoring methods may require expert evidence.
BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36: This Upper Tribunal country guidance outlines four factors relevant to risk from sur place activities (type, identification risk, triggers for inquiry, and detection means).

Legal Reasoning

The Court’s reasoning proceeded in two stages: first, reviewing the scope of appellate scrutiny over FTT fact-findings; second, evaluating whether the FTT and UT properly applied sur place guidance.

1. Appellate Restraint: The Court emphasized established principles (HA (Iraq) v SSHD [2022] UKSC 22) that specialist tribunals are best placed to assess facts and credibility. Appellate interference requires clear misdirection in law, not mere differences in judgment or expression.

2. Application of Guidance: The judges tested whether the FTT’s refusal to infer that the Bangladeshi authorities had monitored the Appellant’s UK activities was legally flawed. They concluded that:

The FTT had correctly taken country policy and information notes into account (Political CPIN and Media CPIN).
It had explicitly adopted the four-factor framework from BA (Demonstrators) when assessing risk.
It had made unchallenged findings that the Appellant’s political role and online presence were modest and lacked the prominence to trigger targeted monitoring or intelligence interest.
Its references to “no evidence that the High Commission films or monitors all demonstrators” must be seen in context: applied to the Appellant’s modest activities, the finding was that his profile was too low to attract real‐world interest or surveillance.
Tribunals are not required to analyze each piece of video or social-media post in isolation; overall credibility and the cumulative weight of evidence sufficed for a reasoned conclusion.

Impact

This decision has several important consequences for asylum and human rights law:

It reaffirms that tribunals may rely on common-sense in drawing inferences about covert State surveillance, subject to country context and evidence.
It underscores the four-factor framework for assessing risk from sur place activities, providing clarity for future cases on how to structure fact-finding analysis.
It cautions tribunals against imposing unrealistic demands for direct proof of monitoring technologies or methods, while preserving the requirement for applicants to contextualize social-media and media reports with first-hand or expert material when available.
It consolidates appellate restraint: findings on the level and effect of political activities in-country are unlikely to be overturned in the absence of legal misdirection.

Complex Concepts Simplified

Sur Place Activities: Political acts undertaken by an individual in a host country (e.g. protests, social-media posts) that the home State may view as hostile if the person returns.

Anxious Scrutiny: The heightened obligation on tribunals to carefully assess asylum seekers’ accounts, recognizing that fear and trauma can affect credibility without negating genuine risk.

Common-Sense Inference: Drawing reasonable conclusions (e.g. that intelligence services film embassies’ protests) without requiring direct documentary proof, based on well-known facts and country context.

Four-Factor Risk Framework (BA (Demonstrators)):

Type and prominence of the sur place activity.
Probability of identification by the home State’s agents.
Triggers that could prompt inquiry or surveillance on return.
Mechanisms at points of entry (e.g. passport checks, intelligence databases) to detect unwanted returnees.

Conclusion

MH (Bangladesh) v SSHD [2025] EWCA Civ 688 establishes a robust, principled approach to assessing risk from sur place activities. It confirms that tribunals may—and must—use common sense and country evidence to infer covert surveillance without demanding direct proof of State monitoring methods. At the same time, it preserves the requirement that applicants contextualize media and social-media evidence with credible, supporting documentation. The decision balances the need for fair, evidence-based fact-finding with the realities faced by asylum seekers, providing welcome clarity for future appeals on similar issues.