Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-004650

First-tier Tribunal No: PA/55748/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 17 March 2025

Before

UPPER TRIBUNAL JUDGE NORTON-TAYLOR
DEPUTY UPPER TRIBUNAL JUDGE STAMP

Between

QP
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Khan, Counsel instructed by Thompson &Co Solicitors Ltd
For the Respondent: Ms S Cunha, Senior Home Office Presenting Officer

Heard at Field House on 5 March 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. This is the remaking of the decision in the appellant’s appeal, following the setting aside of the First-tier Tribunal’s decision, by an error of law decision promulgated on 5 August 2024.
2. The appellant is a Vietnamese national born on 28 March 1991 and is a follower of Pure Hoa Hao Buddhism. She illegally entered the United Kingdom on 2 March 2021 and on 23 January 2022 made an application for asylum, humanitarian protection and human rights. The respondent refused that application on 5 December 2022.
3. On 12 December 2022, the appellant gave notice of an appeal on the basis, amongst other things, that the respondent’s decision would place the United Kingdom in breach of its obligations under the 1951 United Nations Convention relating to the Status of Refugees and the Protocol to that Convention and would breach her rights under the European Convention on Human Rights.
4. The appeal was dismissed on all grounds by First Tier Judge Coutts by way of a decision promulgated on 1 August 2023 on the basis that he did not find her evidence credible on her account of the four occasions between 2010 and 2017 that the appellant had claimed to be detained by the Vietnamese authorities. Nor did the Judge find the evidence of the appellant credible that she openly criticised the Vietnamese government on 20 December 2020, by distributing leaflets with her father.
5. The Judge concluded that the appellant had not discharged the burden of proof that she had a well-founded fear of persecution nor that she would suffer a real risk of suffering serious harm justifying Humanitarian Protection. Finally, the Judge determined that the claim based on private life under the immigration rules was not made out and dismissed her claim under Article 8 of the Human Rights Convention on the basis that the public interest in maintaining effective immigration control outweighed her private life built up since her arrival.
6. On 14 August 2023 the appellant sought permission to appeal on two grounds : (i) That the Judge failed to consider material evidence in his determination of the appellant’s credibility on her arrests and detention and (ii) The Judge failed to resolve the material issue of the risk of losing the political freedom of the appellant is enjoying whilst in the UK following HJ (Iran) v The Secretary of State for the Home Department [2010] UKSC 31.
7. On 20 October 2023 First Tier Judge Rodger granted permission to appeal solely in relation to the second ground on the basis that the Judge had failed to adequately deal with sur place activities.
8. Judge Norton-Taylor, in light of the respondent’s acceptance that Judge Coutts had materially erred in law as contended in the second ground of appeal, set aside the Judge’s decision by way of a written decision on 30 July 2024 without the need to hear oral submissions pursuant to section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. The Judge concluded at paragraphs 7 to 9 of his decision:
“The only live issue now is relatively narrow in scope: whether the sur place activities would place the appellant at risk on return to Vietnam, whether as a result of activities already conducted in this country, or as a result of the HJ (Iran) principle. “
I have considered the question of whether the appellant’s motivation was found to be genuine by the judge and that any such finding has gone unchallenged. It is sufficiently clear to me that the judge made no such finding and that all he did was to find that the appellant had in fact attended number of demonstrations: [58]-[59] of his decision. The question of motivation has not therefore been the subject of previous findings of fact.
Any additional findings of fact relating to the issue of motivation (in addition to the fact of participation in activities) can quite properly be dealt with by th Upper Tribunal. There is no proper basis for remitting this case to the First-tier Tribunal and certainly no justification for disregarding all of the adverse credibility findings made by the judge.”
9. The matter was listed for a resumed hearing on 5 March 2025 at Field House.
Preliminary Matters
10. We reminded the parties that the only issue to be determined in this hearing was whether the appellant, by virtue of her sur place activities in the UK was able to establish a protection claim arising from a well-founded fear of persecution on return to her home country or based on the HJ (Iran) principle.
11. The relevant preserved findings of fact from the First Tier Tribunal decision were (i) the appellant was a national of Vietnam and a follower of Pure Hoa Hao Buddhism (paragraph 39), (ii) that the appellant had been in attendance at the two demonstrations set out in her witness statement (paragraph 59) and (iii) the appellant’s evidence in relation to her political activities while in Vietnam was not found to be credible (paragraph 62).
Hearing for the Re-making of the Decision
12. There was no new written evidence provided by the appellant which the First Tier Tribunal had not seen, all of which was contained in the filed consolidated bundle of 963 pages.
13. The appellant gave oral evidence before us with the assistance of an interpreter of the Vietnamese language. It was confirmed that the interpreter and the appellant were able to understand each other and could communicate effectively. The appellant adopted her previous statement of 8 June 2023 in relation to post arrival activities contained in paragraphs 31-37 and her witness statement of 8 November 2024, confirming that she did not wish to add to her previous statement, as her evidence in chief. Her witness statement of 6 February 2024 was not adopted being largely subsumed by her later ones.
14. On cross-examination by Ms Cunha, the appellant explained she attended a temple in Hackney which catered for all followers of the Buddhist faith and not purely Hoa Hao Buddhism. She affiliated herself with the same sacred texts as those adopted by the temple. She attended the temple each new year and the middle of each month and, from time to time, other occasions. When she did not attend the temple, she practised her religion privately at home alone, in the same way as she would do so while in Vietnam. The appellant confirmed the temple was not associated with a political cause with a pure focus on religious beliefs.
15. In relation to the appellant’s attendance at the demonstration on 11 December 2022, where she had held a poster “Freedom for Vietnam and release of prisoners of conscience”, Ms Cunha asked her about its meaning. The appellant explained that followers of pure Hao Hoa Buddhism were not able to practice their religion freely in Vietnam and were subject to continual harassment by the authorities and in her local area there was no temple at which she could practice her faith. When asked to identify the “prisoners of conscience” she could not remember any of their names or whether they were still in jail as, due to her previous activities in Vietnam, she was unable to make contact with family or friends there. Asked why she had only attended two demonstrations, the last one being in April 2023, she explained that she had been sick, been going to the temple on the relevant occasions and had lost contact with her friends who had previously informed her about the demonstrations.
16. Ms Cunha asked that given that the appellant was able to practice her beliefs at a non-political temple in London, why could she not do the same in Vietnam. The appellant said that she could not as she would be subject to persecution if she returned to Vietnam given her previous activities in distributing anti–government leaflets. She reaffirmed her political beliefs were genuinely held and not to purely support her protection claim.
Submissions
17. Ms Cunha submitted that the appellant had not discharged the burden on her to demonstrate that had a real risk of persecution arising from her sur place activities in the UK on the following bases: (i) The appellant’s oral evidence was clear that the only reason she feared persecution were her previous anti-government activities rather than anything she was proposing to do in the future. This evidence had been considered at the First Tier Tribunal to be not credible and that finding of fact had been preserved as made clear in Judge Norton-Taylor's written decision of 30 July, 2024; (ii) the HJ (Iran) principle was not engaged – the appellant currently practises her religion in an unaffiliated Buddhist temple in Hackney and there is no reason why she should not continue to do so on her return to Vietnam. Ms Cunha pointed us to the CPIN on Vietnam: Hoa Hao dated January 2024 particularly paragraphs 9.1, 9.2.2, 9.2.3, 9.2.5 and 9.2.6 which suggests there is freedom to follow pure Hoa Hao Buddhism unless it is connected to a political cause critical of the government and (iii) The appellant’s evidence in her relation to her sur place activities in the UK was not credible given her answers to the questions about her political beliefs and the reasons for her attending any demonstrations since early 2023.
18. Mr Khan relied on his skeleton argument dated 4 March 2025. He submitted that the appellant’s desire to continue practising her religion on her return combined with her political activities while in the UK would put her at risk of persecution on her return to Vietnam. Mr Khan drew our attention to both her witness statement and her answers to questions 296 to 299 from her Statement of Evidence Form Asylum Interview dated 23 May 2022 indicating she would, on her return to Vietnam, be openly critical of the government. Mr Khan drew our attention to the Human Rights Watch report at page 682 of the consolidated bundle which explained that the pure Hoa Hao sect of Buddhism was born out of government opposition and set out the history of the movement. Mr Khan also referred us to the CPIN on Vietnam at paragraphs 9.1.1, 9.1.2, 9.2.11, 9.3.1 and 10.1.1 to demonstrate that the followers of the pure Hoa Hao Buddhism were subject to harassment, arrest and detention. He also referred to paragraph 3 of the CPIN:
“3.1.3 Hoa Hao Buddhists activists or leaders who openly criticise the government or participate in activities that are, or may be perceived to be, political in nature are likely to attract adverse attention including harassment, monitoring, arrest, interrogation and detention which may amount to persecution. Whether a person is at risk of persecution will depend on their profile and the nature of their activities, not solely due to their faith.
3.1.4 Each case must be considered on its facts with the onus on the person to demonstrate that they would be at real risk of serious harm or persecution from state actors on return.”
Mr Khan confirmed that he was not submitting that a pure follower of Hoa Hao would suffer persecution from the authorities in Vietnam if it was not associated with government opposition, but the appellant had demonstrated such opposition by her evidence taken in the round.
Findings and conclusions
19. In order for the appellant to be successful in her appeal, she has to show that, due to her sur place activities, she has a well-founded fear of persecution for a reason within the 1951 United Nations Convention which includes political opinion. The degree of likelihood of persecution needed to be established, is a lower standard than that required by a balance of probabilities. This has been judicially expressed as a “reasonable chance” or a “serious possibility”.
20. We considered the appellant’s evidence for being at the two demonstrations were not, even on the lower standard of proof, indicative of a sincere political belief. Given the purpose of the demonstration on 11 December 2022 was to seek the release of “prisoners of conscience”, the appellant’s inability to name any of those prisoners or whether there were subsequently released we did not find to credibly support her claim of genuine political opposition to the Vietnamese authorities. In her answers to the questions as to why she had only attended two demonstrations, the last being nearly two years ago, she explained that it was a combination of sickness, attendance at her local temple and loss of contact with friends who had informed her of upcoming demonstrations. Again, we do not find these reasons to be credible – no evidence of any prolonged period of sickness was put before us and in her oral evidence she indicated sporadic attendance at her local temple. Similarly, the fact that she was entirely dependent on friends who she was longer in contact with in order to discover the timing and place of demonstrations is not consistent with a genuine political belief.
21. Turning to the situation on the appellant’s return to Vietnam, the evidence that the appellant gave in her oral testimony before us was clear. When asked why she felt she would be arrested or detained she replied because she had distributed anti-government leaflets when she was last in the country. When asked to confirm that this was the only reason, she so confirmed and gave no indication of any potential future anti-government activity. We note her previous answers to her asylum interview in 2022 were broader, indicating that she would be critical of the government, but we place greater weight on her oral evidence before us given its contemporary nature and the fact that it was tested by cross-examination. The reason the appellant gives for fearing arrest we can place no weight on as this was the subject of a retained finding of fact from the First Tier Tribunal decision that there was no credible evidence of such anti-government activities prior to her arrival in the UK.
22. In making these findings of fact, we have considered the evidence as a whole and asked ourselves the question of whether it is reasonably likely that the material events relied on by the appellant occurred. We have applied the same threshold to the assessment of future risk.
23. In reaching our conclusions we are mindful of Lady Justice Laing’s dicta in WAS (Pakistan) v Secretary of State for the Home Department [2023] EWCA Civ 894 at 87 that credibility is not a “seamless robe” and that findings that some aspects of a witness’s evidence are not credible should not, in a protection claim, be generalised to all evidence. The fact-finder must also consider the intrinsic likelihood, to the lower standard, of the significant aspects of the claim.
24. Bearing this in mind, we have concluded that the appellant has not discharged the burden of proof to establish that she has a well-founded fear of persecution based on her sur place activities whilst in the UK. In addition, HJ (Iran) is not engaged since the appellant has not demonstrated a credible intention to conduct anti-government activities on her return to Vietnam, nor has she demonstrated that she holds genuine political views which are, or may be perceived as, critical of the Vietnamese government. In summary, the appellant will on return be able to practice her faith in a purely non-political manner, as she has done when last in Vietnam and whilst in the United Kingdom, without there being a reasonable likelihood of persecution or serious harm.
25. For the avoidance of any doubt, no free-standing Article 8 claim was pursued before us. In any event, any such claim would have been bound to fail.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error of on a point of law and that decision has been set aside.
The decision in this appeal is re-made and the appeal is dismissed on all grounds.

Mark Stamp

Deputy Upper Tribunal Judge
Immigration and Asylum Chamber

11 March 2025

ANNEX : THE ERROR OF LAW DECISION

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-004650

First-tier Tribunal No: PA/55748/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
…………………………………

Before

UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

QP
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Decided without a hearing at Field House on 30 July 2024

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Introduction
1. The appellant’s appeal was dismissed by the First-tier Tribunal. Permission to appeal was then granted on a limited basis: the proposed challenge to adverse credibility findings relating to past events in Vietnam was rejected; there was arguable merit in the assertion that the judge had failed to adequately deal with sur place activities. There was no renewed application for permission to appeal in respect of the first ground.
2. Following the grant of permission, the respondent accepted that the judge had materially erred in law, as contended for in the second ground of appeal.
3. The Upper Tribunal then issued directions for the parties to confirm their position as regards next steps: i.e. whether the appeal should be remitted to the First-tier Tribunal or retained in the Upper Tribunal.
4. Eventually, both parties complied with the directions. In summary, the respondent asserts that the case should be retained in the Upper Tribunal, given that the issue is relatively narrow (sur place activities only). On the appellant’s behalf, it is said that if the Upper Tribunal accepts that the appellant’s motivation behind his sur place activities is unchallenged (in other words, that it has been found to be genuine), the appeal should be retained in the Upper Tribunal. However, if the issue of motivation is live, the appeal should be remitted to the First-tier Tribunal for a complete re-hearing with no findings of fact made by the judge below preserved.
5. In the particular circumstances of this case, I conclude that it is appropriate to make an error of law decision without a hearing, pursuant to rule 34 of the Upper Tribunal’s procedure rules. There is no need for a hearing, given the common position adopted by the parties.
Error of law
6. I conclude that the First-tier Tribunal materially erred in law for the reason set out in the second ground of appeal. To that extent, and that extent only, the judge’s decision is set aside. There is no error of law in respect of the judge’s assessment of past events in Vietnam.
Disposal
7. Having considered the parties’ representations on the issue of disposal, the question of fairness, and the overriding objective, I conclude that the appropriate course of action is to retain this appeal in the Upper Tribunal and have it listed for a resumed hearing in due course. The only live issue now is relatively narrow in scope: whether the sur place activities would place the appellant at risk on return to Vietnam, whether as result of activities already conducted in this country, or as a result of the HJ (Iran) principle.
8. I have considered the question of whether the appellant’s motivation was found to be genuine by the judge and that any such finding has gone unchallenged. It is sufficiently clear to me that the judge made no such finding and that all he did was to find that the appellant had in fact attended number of demonstrations: [58]-[59] of his decision. The question of motivation has not therefore been the subject of previous findings of fact.
9. Any additional findings of fact relating to the issue of motivation (in addition to the fact of participation in activities) can quite properly be dealt with by the Upper Tribunal. Relevant findings of fact will then form part of the assessment of risk on return. There is no proper basis for remitting this case to the First-tier Tribunal and certainly no justification for disregarding all of the adverse credibility findings made by the judge.
10. In light of the above, the appeal will be listed for a resumed hearing on the first available date, with a time estimate of 3 hours. It will be assumed that the appellant will give oral evidence and a Vietnamese interpreter will be arranged by the Upper Tribunal. If there is to be no oral evidence, the appellant representatives must inform the Upper Tribunal of this as soon as practicable. The parties are referred to the case management directions set out in the notice sent out on 30 July 2024 (the appellant was wrong referred to therein as ‘QTY’).
Anonymity
11. This is a protection appeal. Anonymity remains justified.

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 exercise my discretion under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 and set aside the decision of the First-tier Tribunal.
The appeal is retained in the Upper Tribunal and will be listed for a resumed hearing in due course.

H Norton-Taylor
Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 30 July 2024