Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos.: UI-2023-004630

First-tier Tribunal Nos: PA/50763/2022
IA/02150/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 28 January 2025

Before

UPPER TRIBUNAL JUDGE SHERIDAN
DEPUTY UPPER TRIBUNAL JUDGE DURANCE

Between

T V P
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Alexander Swain (Counsel) instructed by SN & Co Legal Services
For the Respondent: Ms Isherwood, Senior Home Office Presenting Officer

Heard at Field House on Monday 6 January 2025

DECISION AND REASONS

Background
The appellant (who is aged 39) argues that he is a political opponent to the Vietnamese regime and that he is involved in sur place activities within the UK. First-tier Tribunal Judge Fox (“the judge”) rejected that claim.

1. The appellant lodged an application for asylum in the UK on the basis of (i) his political activities which had taken place in Vietnam and (ii) his sur place activities which had taken place in the UK. That application was lodged on 10 June 2019. An interview was arranged for 30 November 2021 with a Vietnamese interpreter. For reasons unknown, the interview was conducted in English due to concerns about the interpreter (see para 23 of judge Fox’s decision).
2. The respondent refused the application on 8 February 2022. The respondent rejected the basis of the asylum claim on the grounds of adverse credibility. It is argued by the respondent that the appellant has not been able to “evidence that you have been politically active in Vietnam”.

Immigration Judge Decision
3. The judge made a decision (in which they dismissed the appeal) on 17 August 2023.
4. In dismissing the appeal, the judge noted as follows :-

a) The appellant was interviewed by the Home Office in English (para 23).
b) The Facebook posts relate to the Viet Tan movement which is based in the USA (para 33). The judge stated that “there is a lack of sur place activities. The untranslated facebook posts should attract no weight” (para 38). A difficulty with this finding is the objective evidence which indicates that such activity is investigated by the Vietnamese authorities. A further difficulty is that many of the documents are in English.
c) It is noted that the appellant has engaged in a number of activities in the UK (para 45).
d) The judge states that the expert report is of limited probative value (para 59).
e) It is argued that the appellant’s failure to mention the arrest warrant at interview does not assist his credibility (para 60). There is no reference to the fact that the interview was in English.
f) The judge finds that “prosecutions were not pursued due to a lack of evidence” (para 61).
g) The judge finds that “there is no reliable evidence to corroborate the appellant’s claims” (para 63).
h) The judge finds that the appellant was “vague and evasive” in relation to his path to political leadership (para 69).
i) The judge finds that there is an “absence of any reliable witnesses associated with the appellant’s alleged political activities in Vietnam or the UK” (para 71).
j) At paragraph 55 of the decision, the judge states that “there is no apparent consideration of the appellant’s inconsistent account when applied to the objective evidence and why the appellant’s account remains reliable”. At paragraph (59) the judge states that “the expert report is of limited probative value”. A difficulty with this finding is that the judge fails to set out what the inconsistent evidence actually is. Given that the exercise of credibility is a holistic exercise, this is of some concern.
k) At paragraph 63, the judge states that “there is no medical evidence to demonstrate that the appellant was physically harmed as claimed”. A difficulty with this finding is that the appellant had not stated in his witness statements that he had needed to go to hospital, nor was it raised at interview (see question 129).
l) For these reasons, the judge determined that the appellant had failed to satisfy the burden of proof to the lower standard (para 84).

Grounds of appeal
5. Ground 1 argues that the judge erred by finding that the expert report was of limited probative value. It is argued that there was a partial interpretation of the expert report which meant that the judge disregarded large portions of the report without good reason.
6. Ground 2 argues that the judge failed to address the inconsistency between the objective evidence and the claims made by the appellant. It is argued that the appellant was arrested and detained on three occasions for political activities and paid a bribe and that prosecutions were not pursued due to a lack of evidence. It is noted that the expert report provides detailed evidence of routine procedural abuse, forced confessions and arbitrary detention. It is argued that these inconsistencies did not exist as the expert report provided background evidence to support those accounts.
7. Ground 3 argues that there is a failure to consider the activities undertaken by the appellant. It is argued that the judge failed to consider the photographic evidence of the appellant in demonstrations outside the Vietnamese embassy in London and at other events organised by Vietnamese opposition groups. It is argued that the judge failed to consider the evidence of the expert report, or the respondents own objective material in relation to the extensive surveillance capabilities of the Vietnamese party state. In this regard, the grounds rely on YB (Eritrea) v SSHD [2008] EWCA Civ 360. The point made is that where the objective evidence paints a bleak picture of the suppression of political opponents it requires little or no evidence of speculation to arrive at a strong possibility that the foreign state will film or photograph their nationals who demonstrate in public against the regime.
8. Ground 4 argues that the appellant is associated with the Viet Tan movement which will give rise to a prosecution in Vietnam. It is noted that the Vietnamese government have 10,447 cyber warriors who monitor activity online.
9. Ground 5 argues that the expert report indicated that persons who have claimed asylum abroad will be subject to interrogation by the Vietnamese authorities and will be required to inform those authorities of the basis of their protection claim and any sewer plus opposition activities. This would include his association with the Viet Path movement, the Brotherhood of democracy and the Viet Tan.
10. Ground 6 argues that it is argued that the judge required corroboration of the appellant's claims and concluded that there was no medical evidence to demonstrate that he had been physically harmed or that there was no evidence in relation to the death certificate of his father. In this regard, the grounds of appeal rely upon MAH (Egypt) v SSHD [2023] EWCA Civ 216.

Grant of permission
11. Permission was refused on 8 October 2024 by First-tier Tribunal Judge Cartin. On renewal, permission was granted by UTJ Reeds granted permission on grounds 2, 3 and 5. Although permission was not restricted to any grounds, the grant focused on grounds 2, 3 and 5.

Oral argument
12. Mr Swayne (for the appellant) argued that all the grounds were engaged. His argument can be summarised as follows:-

a) The judge had failed to consider properly or at all any of the argument in respect of the Viet Tan;
b) There had been a failure to consider sur place activity;
c) There had been a failure to consider the country materials and the expert report when making findings of fact;
d) There had been a failure to consider the plight of failed asylum seekers;
e) He had required the need for corroboration which was (of itself) a material error of law;
f) There had been a misinterpretation of evidence in terms of the detention and the manner in which the appellant had been mistreated;
g) The judge had made an adverse finding of fact that the appellant had not provided any medical evidence in respect of the injuries that he received when in detention. Mr Swain made the point that at no juncture had the appellant argued that he had needed to attend hospital;
h) The judge had failed to properly understand that the Vietnamese authorities were interested in low level activists;
i) It was argued that the judge had failed to properly engage with the sur place activities of the appellant and / or had failed to consider how these activities may impact on the appellant on return to Vietnam;
j) It was noted that political activities abroad were the subject of investigation and facial profiling; and this appears to be an integral part of the judge’s overall assessment of credibility, this is of some concern.
k) He asked that we allow the appeal outright or remit to the First-tier Tribunal.
13. Ms Isherwood (for the respondent) argued that the case was all about credibility and relied on the skeleton argument in this regard. She argued that the issues now being raised before UKUT were issues which had not been raised before the judge.
14. She argued that the key to the case was the determination of the appellant’s credibility. It was suggested that the judge needed to adopt a holistic approach towards credibility. She was not, however, able to identify any inconsistency (or explain why the judge considered there to be an inconsistency) between the appellant’s account and what the objective evidence (including the expert report) says about the way opponents of the regime in Vietnam are treated by the authorities.

The Law
15. In YB (Eritrea) v SSHD [2008] EWCA Civ 360, the Court of Appeal considered the case of an Eritrean national who had been working for the Eritrean Democratic Party. He argued that he had been elected the chairman of the Newcastle branch and that he had taken part in demonstrations outside the Eritrean embassy. The Judges hearing the appeal accepted that he had attended a demonstration outside the Eritrean embassy.
16. In YB, the Court of Appeal stated as follows: -

“…opportunistic activity sur place is not an automatic bar to asylum. The difficulty is knowing when the bar can eventually come down. To postulate, as in Danian, that the consequence of a finding that the claimant’s activity in the UK has been entirely opportunistic is that “his credibility is likely to be low” is, with respect, to beg the question: credibility about what?”
17. In Danian [2000] Imm AR 96, Brooke LJ had stated as follows: -

“I do not accept the Tribunal’s conclusion that a refugee sur place who had acted in bad faith falls out with the Geneva Convention and can be deported to his home country….. he is still entitled to the protection of the Convention, and this country is not entitled to disregard the provisions of the Convention by which it is bound….”
18. In MAH (Egypt) v SSHD [2023] EWCA Civ 216, the Court of Appeal considered whether UKUT was correct to reject a person’s claim for international protection on the grounds of adverse credibility. The basis of the decision was that the UKUT believed that there were further steps that the appellant might have taken to corroborate their account. The Court of Appeal quashed the decision on the basis that that standard of proof adopted had been too high. The appellant’s father had been arrested and imprisoned for being a member of the Muslim Brotherhood and fled Egypt at the age of 14.
19. Singh LJ held that “What both Article 4(5) of the Qualification Directive and para 339L of the Immigration Rules provide is that, where certain criteria are met, corroborative evidence is not required… In those circumstances the decision maker (here the tribunal of fact) must still consider whether, on the facts of the case, it is appropriate to give the appellant the benefit of the doubt, bearing in mind the relatively low threshold of “reasonable degree of likelihood”.”

Photographic evidence
20. Within the bundle there are numerous photos of the appellant attending a human rights conference in London (67 of 173) noted to be the Viet Tan.

The expert report
21. The expert report (Professor Christoph Bluth) indicated as follows: -

a) The report states that the appellant became a member of the Vietnam Path Movement or VPM at the beginning of 2015.
b) It states that he was arrested for the distribution of leaflets in 2015.
c) He then produced leaflets relating to the Formosa environmental disaster which has been at the centre of much political protest in Vietnam. He was then arrested and taken to the Xuan Ha detention camp and accused of causing public disorder. Formosa was an environmental disaster caused by the release of toxic waste into the sea through underwater drainage pipes. This killed numerous fish species as well as several people (7.1.1).
d) He then engaged in a protest in Hanoi in March 2019 where his colleague’s provided information about him to the authorities. He then left the country and arrived in the UK in May 2019.
e) The report states that Vietnam is a one-party authoritarian government ruled by the Communist Party. As a result, freedom of expression and civil society activism are tightly restricted. The formation of independent labour unions, political associations and human rights associations are prohibited.
f) Human Rights Watch has stated that critics of the regime face police intimidation, harassment, arbitrary arrest, and detention. The prevalence of torture and mistreatment in Vietnamese prisons has been confirmed by a Home Office report. The consensus amongst experts is that the position is getting worse. The Cybersecurity law (which came into effect on 1 January 2019) means that foreign companies are prevented from posting material online which is critical of the regime. The authorities can force these companies to hand over data relating to suspected dissidents.
g) The crackdown on dissidents is expanding and prison sentences from 12 – 20 years are becoming the norm. Given that the judiciary in Vietnam is considered to not be independent, the likelihood of an appeal succeeding is thought to be minimal.
h) Pro-democracy activists are attempting to galvanise the support of the younger population by focusing on social issues such as land seizure.
i) The report makes it clear that the regime tends to target family members of perceived political opponents.
j) The VPN is a non-partisan movement which has called on all Vietnamese citizens to act on the basis that human rights must be respected. The regime sees the VPN as a subversive anti-communist movement engaged in criminal activity against the state.
k) The report states that any return to Vietnam is complicated as the government is reluctant to take back people. Such people are perceived to cause trouble. As a result, many returned Vietnamese are interrogated by immigration officials. They are asked questions as to where they have been, their activities abroad, their reasons for return and their destination in Vietnam. Human Rights Watch indicated that immigration officials took special interest in persons perceived to be anti-communist. Legislation has subsequently been introduced which means that persons are targeted for their activities overseas (para 5.2.8). It is argued that the concealment of these activities is not possible. It is noted that Vietnamese asylum seekers have been detained despite assurances given by the regime that this would not take place, such representations were made by the Australian government.
l) It is noted that the regime has a “widespread territorial surveillance network” as well as “sophisticated electronic monitoring technology” to identify and follow groups that they consider to be politically subversive.
m) The regime considers that dissidents from abroad are more dangerous as they have the freedom to organise and develop their political associations. Specific criminal offences have been created under the code to target those who travel abroad and campaign against the regime. The expert argues that photos and videos are taken of protestors and that facial recognition technology will be employed. It is noted that Vietnamese companies have developed facial recognition which can identify faces even when they are wearing a mask.
n) It is noted that there is a cyber army to monitor the internet for activity which is critical of the regime. It is noted that the e-civil registration database is digitised and contains a new ID card which means that a reverse image search can be undertaken swiftly in respect of a person who has attended a demonstration.
22. The Home Office evidence indicates that members of illegal opposition parties are subject to arrest and imprisonment (4.1.1.). Vietnamese government has indicated that the Viet Tan is a “terrorist organisation” and that anyone involved with it will be considered “an accomplice in terrorism” (4.2.1). The US government has stated that they have not seen any evidence that links the group with terrorist activities (4.2.1). The report further notes that “trials of human rights activists consistently failed to meet international fair standards” (6.1.2). The report notes that many lawyers do not wish to take on such cases for fear of state harassment and retribution (6.4.1). The report states that all land is owned by Vietnam and that land disputes are common (8.1.2).
23. Within the bundle there are numerous photos of the appellant attending a human rights conference in London (67 of 173) noted to be the Viet Tan.

Error of Law (findings)
24. In our judgment, it is clear that the judge erred in requiring a need for corroboration. It is clear from the judgment of MAH, that this is an error of law and that the judge approached credibility from a perspective which was beyond the lower standard of proof. We find that this was an error of law and that the judge misdirected themselves in respect of this issue.
25. We note that the judge found that the appellant’s claim was not consistent with the objective evidence. We again find that this was not a proper evaluation of the evidence from a holistic perspective. It remained entirely unclear what evidence the judge was using to make a finding that the appellant’s account was not consistent with the objective evidence. Indeed, we note that Ms Isherwood struggled to answer our question on this issue.
26. One of the issues which significantly undermined the judge’s findings relates to the expert report. The judge gave no adequate reasons for giving it minimal weight. The judge then failed to engage with the report as to the state of persecution of those engaged in political activities in Vietnam. The judge also failed to take into account the expert’s evidence in relation to sur place activities. This meant that the judge decided the issue of risk on return without having regard to the material evidence. Moreover, given that credibility findings are to be reached holistically, it is difficult to understand why the judge adopted such an approach as it meant that his analysis was curtailed and narrow. We find that had the judge given consideration to the expert’s evidence on the approach taken by the Vietnamese authorities to sur place activities, even if those activities were limited and did not reflect a genuine belief.
27. We further note that the judge made findings in respect of the appellant not receiving medical treatment in Vietnam following arrest and mistreatment by the Vietnamese authorities. There is a difficulty with this finding as at no juncture did the appellant argue that he had required medical treatment in Vietnam. To the contrary, the interview makes it clear that he rested at home (see question 129 of the interview). In many respects, this is a finding which is speculative and (considered alongside the required need for corroboration) appears to indicate that the judge has misdirected themselves as to what is the lower standard of proof requires.
28. Finally, we note that at no juncture did the judge consider the sur place activity. In many respects this is probably due to the fact that he gave such little weight to the expert report. It may have been the case that the judge did not accept that these activities had taken place. The difficulty with this is that no such findings were actually made. As the Court of Appeal authorities above make clear, these were findings of fact that needed to be made not least given the contents of the expert report and the objective information from the Home Office.
29. For these reasons, we find that the judge’s decision contained material errors of law. We therefore set it aside with the directions made below.

Disposal
30. Both parties were of the view that the case should be remitted to the First-tier Tribunal. Given that no findings are preserved and that the fact-finding necessary to remake the decision is likely to be extensive, we agree.
31. Although not raised by either party, we further note that the interview was conducted in English despite the fact that there was supposed to be a Vietnamese interpreter. We consider that this gives rise to issues relating to the Equal Treatment Bench Book as the appellant was deprived of an interpreter when one was supposed to be provided. We note that when he was asked whether he spoke any other languages he stated that he spoke “little English” (page 76). When the decision is remade this point will need to be considered and it may mean that the FtT need to re-evaluate any issues of credibility when it comes to that substantive interview.

Notice of Decision
The appeal is allowed. The decision of the First-tier Tribunal is set aside and the matter is remitted to the First-tier Tribunal for a de novo hearing

DUTJ Durance

Immigration and Asylum Chamber

7 January 2025