Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04079/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13 December 2016
On 20 January 2017
Extempore

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between
T C T
(ANONYMITY DIRECTION MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr T Hodson of Counsel instructed by Elder Rahimi Solicitors
For the Respondent: Mr E Tufan, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant appeals with permission against the decision of First-tier Tribunal Judge Scott-Baker promulgated on 7 October 2015. In that decision the judge dismissed the appellant's appeal against the decision of the Secretary of State made on 24 February 2015 to refuse to grant him asylum and to remove him from the United Kingdom. It should be noted at this point that the matter did previously come before the Upper Tribunal when the matter came before Deputy Upper Tribunal Judge O'Ryan on 15 January 2016. For the reasons set out in the note issued by Upper Tribunal Judge Dawson, the Principal Resident Judge, it was not possible for the Deputy Judge to complete his written decision within a reasonable time and the matter was then the subject of a transfer order and on that basis it comes before me.
2. The appellant's case is in brief that he was trafficked to the United Kingdom and that he would be at risk on return to Vietnam from both a traffic team who it appears would seek to enforce against him a debt with threats of violence. He also states that he would be at risk in his home area because there would be no sufficiency of protection and that it would not be safe for him elsewhere in Vietnam either as on account of those who trafficked him being able to trace him or that it would be unduly harsh to expect him to relocate given that he is, on his account, a vulnerable person owing to the fact that he has been trafficked and owing to his mental ill-health. It is also his case that he would be at risk from the Vietnamese authorities on account of the opposition activities which he has undertaken in the United Kingdom in the past few years having arrived here a number of years earlier.
3. The judge's findings appear from paragraph [59] of her decision onwards. Although accepting that he had been trafficked she did not accept that there was any outstanding debt to the traffickers, did not accept that, as he had claimed, there had been an altercation in London where he had come to the adverse attention of the gang who had brought him here; nor did she accept that he was a vulnerable person, finding at paragraph [64] that he was no longer receiving counselling in the United Kingdom. She considered he could be returned to Vietnam; that his mental health was not such as to engage Articles 3 or 8 of the Human Rights Convention; and, that he had not established a family life here for the purposes of Article 8. She considered that although he had a private life established in the United Kingdom and that includes the relationship with his girlfriend it would not be a disproportionate interference with his right to respect for his private life to return him to Vietnam.
4. There are five grounds of appeal which are set out in the grounds for permission to appeal to the Upper Tribunal. Permission in respect of all of them was granted by First-tier Tribunal Judge Grimmett on 4 November 2015.
5. The first ground can conveniently be summarised in that there is an inconsistency in the judge's findings with regard to trafficking as set out in the bullet points in paragraph [59] in comparison with what had been accepted by the Secretary of State and also what the judge found at paragraph [60]. Mr Tufan did not seek to persuade me that there was no inconsistency. I note that there is an inconsistency in that the judge found that the applicant had been trafficked yet also that he had journeyed to the United Kingdom for economic reasons. There is clear inconsistency in this.
6. Further, as is averred ground 2, the judge found that the applicant was not a vulnerable person. It is not however clear on what basis she was reached that conclusion. On the basis of the statutory definition for a vulnerable person, given that the applicant is a victim of trafficking and suffer from mental ill-health, it is difficult to understand how the judge could have concluded he was not a vulnerable person as defined. Further, the judge's conclusion that the appellant is not a vulnerable person is infected by an error of fact. At paragraph [64] the judge stated that the appellant was no longer receiving counselling, contrary to the letter from Dr Garbar of the Lister Primary Care Centre dated 27 July 2015 which indicates that the appellant is undergoing counselling. On that basis the finding that the applicant is not a vulnerable person is unsafe.
7. It is also argued in ground 3 that the judge had failed to provide proper reasons as to why it was reasonable to expect the appellant to relocate elsewhere despite being the victim of previous trafficking. I consider that this submission is also made out given that it is not at all clear why, given the previous findings of fact, the judge did not accept that there would be difficulties and, as is pleaded in grounds at [18] and [19] the judge appears not properly to have engaged with the material before her as to the difficulties that would be faced on return.
8. In ground 4 it is averred that the judge made specific adverse credibility findings against the appellant which were not well-founded or adequately reasoned. I consider that there is significant merit in this ground also. The judge simply says that she has made findings of fact and credibility yet she appears to have accepted some of what the applicant said but has discounted other parts of his claim without properly explaining why she has done so nor has she said whether she accepts his testimony as credible or not or why she accepted in particular the reason that he had given for failing to claim asylum earlier.
9. Finally, as is set out in ground 5 the judge appears not to have taken into account or made findings on the applicant's sur place activities and whether they had taken place or whether they would put him at adverse risk on return to Vietnam.
10. Whilst no particular one of these errors is determinative I find that looking at them cumulatively the judge has failed properly to give adequate reasons for her findings of fact, has failed to deal with material issues that is the sur place activities, and has erred also in failing adequately to explain why she accepted some parts of the applicant's testimony but not others. Taking them together I am satisfied that the decision did involve the making of an error of law and I set it aside.
11. Given the absence of proper findings of credibility and proper findings of fact as well as the failure to deal with the significant issue of sur place activities, I consider that it will be necessary, as both parties agreed, for a fresh fact-finding exercise in respect of all relevant matters to be made in this case and that accordingly, following the Practice Direction, it needs to be remitted to the First-tier Tribunal for a fresh decision on all material issues.

SUMMARY OF CONCLUSIONS
1. The decision of the First-tier Tribunal involved the making of an error of law and I set it aside.
2. I remit the decision to the First-tier Tribunal for a fresh decision on all material issues. None of the findings of the First-tier Tribunal are preserved.
3. I maintain the anonymity order made by the First-tier Tribunal

Signed Date: 19 January 2017

Upper Tribunal Judge Rintoul