Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10171/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 30 September 2016
On 14 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

P K N
(ANONYMITY DIRECTION MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Miss K McCarthy, Counsel, instructed by Barnes Harrild & Dyer Solicitors
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Bart-Stewart (the judge), promulgated on 18 July 2016, in which she dismissed his appeal on all grounds. The Appellant has at all material times been a minor, his date of birth being 6 February 1999. His initial protection claim was based on his mother having got into debt with criminal gangs in Vietnam. She was unable to repay these debts and as a result the Appellant and his mother were threatened and eventually had to flee. The Appellant arrived in the United Kingdom in January 2015 and claimed asylum immediately.
2. The appeal to the First-tier Tribunal was as a result of the Respondent's decision of 15 June 2015 in which the Appellant's case was rejected. Due to his age discretionary leave was granted until 6 August 2016.

The judge's decision
3. The relevant passages of the judge's decision begins at paragraph 23 in which she makes reference to the Appellant's minority and the fact that he was to be treated as a vulnerable witness. He was, as she notes, only fifteen years old at the time that he left Vietnam. He was seventeen years old as at the date of the hearing before the judge.
4. Notwithstanding the Appellant's age the judge finds a number of elements of his account to have been inherently implausible. In particular, at paragraph 24 she finds that it was simply not plausible that representatives of the criminal gangs were coming to the Appellant's house on a regular basis and yet they failed to carry out the threat of violence against the Appellant and/or his mother. The judge finds that the Black Society, as it was called, had ample opportunity to act against the Appellant and/or his mother and yet failed to do so.
5. At paragraph 25 the judge refers to the Appellant's somewhat belated evidence that he and his mother had in fact been physically attacked, not simply verbally threatened. The judge finds that this late disclosure was not credible.
6. At paragraph 26 the judge finds that it was not credible that the Appellant's mother could have become so indebted to the criminal gangs that it would have been cheaper to pay an agent to take the Appellant to the United Kingdom and herself to China rather than repay the original loan.
7. At paragraph 27 the judge does not accept the Appellant's evidence that his mother had left Vietnam. She concludes that paragraph by stating that "I do not accept that the Appellant and his mother were threatened by the Black Society and that he had to flee because of those threats."
8. In the next two paragraphs the judge goes on to find that even if the account were true the Appellant's case would not engage the Refugee Convention, as his status was not that of a particular social group.
9. There was an expert report before the judge. This is not referred to until paragraph 30 in which the judge acknowledges the author's expertise and sets out some of the issues dealt with within the report including in particular the risk of trafficking within Vietnam.
10. At paragraph 31 the judge notes that the bulk of the expert report dealt with the trafficking issue but that there was no comment by the expert upon the Appellant's evidence that he and his mother remained at home for about six months in 2016 notwithstanding the fact that the criminal gangs were apparently threatening them both as a result of non-payment of debt.
11. The remainder of the decision concerns tracing obligations and the conclusion that the Appellant was not at risk under Articles 2 or 3 of the European Convention on Human Rights.

The grounds of appeal and permission to appeal
12. The grounds of appeal are effectively two-fold: first that in assessing the credibility of the Appellant (who was of course a minor) the judge failed to have due regard to the expert report, in particular his view that the Appellant's account was, in his opinion, plausible; second, that the judge had failed to have due regard to the Appellant's minority when assessing credibility. In granting permission on 30 August 2016 First-tier Tribunal Judge Parkes regarded both the grounds as being arguable.

The hearing before me
13. Miss McCarthy relied on the grounds of appeal. She acknowledged that one, if not the primary, reason for rejecting the Appellant's account was the judge's view about the inaction by the criminal gangs during the six month period in 2014. Miss McCarthy directed me to paragraph 6.1 of the expert report in which he regarded the Appellant's account as being plausible. Although the expert had not specifically addressed this issue of the six months period, he was aware of this element of the account and that his report as a whole went not only to the possible risk on return but also to the issue of whether the Appellant had been telling the truth. Miss McCarthy submitted that the judge had effectively considered the expert report as something of an afterthought having already determined credibility against the Appellant previously in her decision.
14. With reference to paragraph 26, Miss McCarthy submitted that the Appellant could not possibly have known how much money his mother in fact owed given that he, the Appellant, was only fifteen at the time. This was an example of a judge having failed to adequately assess the effect of the Appellant's minority in respect of the credibility of his account.
15. Mr Walker in his customary fair manner did accept that the expert report appeared to be considered as an add-on following previous adverse credibility findings.

Decision on error of law
16. I find that the judge has materially erred in law with particular reference to the expert report, but also in respect of the Appellant's minority in general.
17. Expert evidence must always be considered in the round, and of course ultimately issues of credibility are a matter for the Tribunal and the Tribunal alone. However, in cases involving minors, extraneous sources of evidence such as country information and, as in this case, expert evidence, can be of particular importance. Full regard must be had to this when assessing not only risk on return, but the credibility of an account. This is all the more so when the basis of rejecting an account is predicated upon inherent implausibly.
18. In my view it is clear from the findings and reasons provided in paragraphs 24 to 26 that the judge has indeed rejected the account almost exclusively on the basis that she found core elements of the account to be inherently implausible.
19. At the stage of the assessment of credibility, no reference whatsoever is made to the expert report. That report is only considered at paragraphs 30 and 31 and even then there is no detailed analysis of it. It is significant to note that at the end of paragraph 27 the judge is effectively rejecting the core elements of the Appellant's account on credibility grounds. The assessment of the expert report only occurs afterwards and it is apparent to me (and in this respect I agree with the view of Mr McCarthy and Mr Walker) that the expert report has been dealt with as something of an afterthought to the consideration of credibility.
20. It is true that the author of the report has not specifically addressed the issue of the six month gap in 2014 to which the judge makes reference in paragraph 31. It appears to me that the expert was not specifically asked to look at this when preparing his report. However, in any event, the expert was aware of the various elements of the Appellant's account, having set out a summary history at the beginning of his report. At paragraph 6.1 of that report the expert states in clear terms that in his view the account as put forward by the Appellant was plausible. In a case such as the present, involving a minor, this expert opinion was certainly capable of being given weight and should have been assessed as part and parcel of the overall credibility assessment. In my view this simply has not been done.
21. This constitutes a material error of law and the decision will have to be set aside on this basis alone.
22. In addition, and despite reference to the Appellant's age in paragraph 23, I find that the judge has failed to take proper account of his minority. When reaching the finding in paragraph 26 in respect of the amount of money that the mother may or may not have owed, given that the Appellant was at most 15 at the relevant time it would be very difficult in my view for a judge to sustainably conclude that he should or indeed would have known how much money his mother owed to criminal gangs. There are a number of assumptions involved in such a conclusion, none of which have been spelt out in any detail at paragraph 26. There is no explanation as to why this part of the account was deemed to be inherently implausible in the context of the Appellant being a minor at all material times. In my view this constitutes a further material error of law.

Disposal
23. This appeal must be remitted to the First-tier Tribunal as the errors of law go directly to the issue of credibility.
24. This is not a case in which even at its very highest there can be said to be no realistic prospect of a risk on return. Aside from the issue of the criminal gangs as specifically mentioned by this Appellant in his claim, there is a further potential risk of trafficking. Trafficking is dealt with in detail in the expert report and the country information. Unfortunately the judge failed to engage with this in any meaningful way. On remittal this is clearly a matter that will have to be addressed and this is so whether or not it is found that the Appellant would fall within a particular social group or not.
25. The remitted hearing will be a complete rehearing with no preserved findings of fact. I will issue directions below.

Directions to the Parties
(1) This appeal is remitted to the First-tier Tribunal for a complete rehearing on a date to be fixed by the relevant First-tier Tribunal hearing centre;
(2) Any further evidence relied on by either party is to be filed with the First-tier Tribunal and served on the other side no later than 14 working days before the next hearing;
(3) The parties shall comply with any further directions issues by the First-tier Tribunal;
(4) The Appellant is to be accompanied by an appropriate adult at the next hearing.

Directions to Administration
(1) This appeal is to be remitted to the Taylor House hearing centre on a date to be fixed by that centre. This must be done as quickly as possible;
(2) There is a 3-hour time estimate for the remitted hearing;
(3) A Vietnamese interpreter is to be provided;
(4) The remitted hearing shall not be conducted by First-tier Tribunal Judge Bart-Stewart.
Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision of the First-tier Tribunal.
I remit the case to the First-tier Tribunal.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date: 12 October 2016
Deputy Upper Tribunal Judge Norton-Taylor