Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001487

First-tier Tribunal No: PA/57984/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 4th of February 2025

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

TM
(ANONYMITY ORDER MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Heep, Jain, Neil & Ruddy Solicitors
For the Respondent: Ms E Blackburn, Senior Home Office Presenting Officer

Heard in Edinburgh on 19 December 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
1. The appellant appeals with permission against the decision of First-tier Tribunal Judge D H Clapham, promulgated on 26 February 2024, dismissing his appeal against a decision by the Secretary of State made on 5 October 2023 to reject his asylum and human rights grounds.
2. The appellant’s case is that he is at risk on return to Vietnam because he had come to the adverse attention of the Vietnamese authorities owing to his participation in several demonstrations in Vietnam. It is also his case that he is at risk of re-trafficking from those who had trafficked him to the United Kingdom in respect of which he has received a positive reasonable grounds decision.
3. As the judge noted there were three issues to be considered: -
(i) Whether the appellant is at risk from the Vietnamese authorities;
(ii) Whether the appellant is a victim of trafficking and at risk of being re-trafficked;
(iii) Whether, if returned to Vietnam, there would be a breach of the appellant’s rights under the Refugee Convention and/or Articles 2, 3 and 8 of the Human Rights Convention.
It was, however, conceded by the appellant’s representative that there was no freestanding Article 8 claim.
4. The judge heard evidence from the appellant and three witnesses. She also had before her hearing bundles and written submissions as set out in her decision at [3]. The judge formed the view that the main issue was credibility [64] and that she had considered the evidence in the round. The judge found that:
(i) the appellant was simply a face in the crowd at the second demonstration in particular given its size;
(ii) the appellant’s failure to mention the summonses during his screening interview undermined his credibility;
(iii) the appellant had made no attempts to try to obtain the original summons from his father and gave the copy summons accordingly little weight [67];
(iv) the appellant was inconsistent as to the number of stitches he received in hospital for his injuries after being treated there subsequent to injuries he received in the second demonstration;
(v) the appellant appeared not to have suffered any adverse consequences of failing to answer the first summons and it was hard to believe that the police would have been able to stop him before the issue of the first summons threatening him not to attend another demonstration although they would do so before he received the first summons and yet take no more direct action against him after that;
(vi) the account of being sacked from his job before he received the first summons lacked detail, and was not satisfied he was of any interest to the authorities [70];
(vii) the appellant had been inconsistent as to how much he owed the traffickers, and whilst victims of trafficking may experience discrimination or social stigma on return that was not sufficiently serious to reach the threshold of persecution or serious harm [75];
(viii) there was no outstanding debt to the traffickers the appellant would not be at risk and did not accept the appellant’s narrative regarding visits by the traffickers to the family home; and, even if wrong, he could relocate with the support of family.
5. The appellant sought permission to appeal on the grounds that the judge had erred;
(i) in concluding despite the background evidence relating to the Vietnamese authorities’ sensitivities to protestors had the judge concluded that he was simply a face in the crowd was insufficient to bring him to the adverse attention of the Vietnamese authorities;
(ii) in concluding that the appellant had not previously mentioned a summons when, in his screening interview he had said that he had been served with official papers looking to arrest him, that she had not considered;
(iii) in assuming that the police or law enforcement in Vietnam would act according to the same standards one would expect in the United Kingdom when assessing the appellant’s evidence in respect of the behaviour of the police;
(iv) in using her own conjecture as to how the appellant’s family ought to have acted to the threats made to them.
6. On 15 April 2024 First-tier Tribunal Judge Dempster granted permission to appeal.
7. On 19 April 2024 the Secretary of State responded to the grounds of appeal pursuant to Rule 24 submitting that the photographs before the Tribunal had not shown their provenance and it was open to her to find that it was unlikely the authorities would have the ability or inclination to identify the appellant when thousands of others were present in any event, nor did the grounds identify the background evidence relating to the authorities’ ability and inclination to conduct surveillance of people with no established profile. It is further submitted that the judge was correct that there had been no mention of a second summons and in any event the findings made in relation to his interactions with the police are unchallenged. It was not accepted that the judge had relied on the assumption the authorities in Vietnam would operate similarly to elsewhere but rather identified biologically the appellant’s account of events made little sense.
8. I heard submissions from both representatives. Mr Heep submitted that the errors were as set out in the grounds of law material. Ms Blackburn in the Rule 24 letter submitting that, viewing the evidence as a whole, the judge’s conclusions were entirely justified. I reserved my decision.
Discussion
9. I note in the appellant’s substantive asylum interview, his solicitors wrote to the Home Office pointing out that amendments to the screening interview which had taken place on 5 August 2020 needed to be made. In particular in respect of question 4.1 it is said that it should have been that after the protest the government sent him summons documents and also that he clarified that the traffickers who claimed that US$15,000 was still owed to them in addition to the $18,000 he had paid previously and that he had another year to work for them at the time he escaped from them in the United Kingdom.
10. I note from the screening interview that the appellant said [Q4.1]: “After the protest [against the steel company called Formosa] the government sent me official papers looking to arrest me”. It is difficult to see that this is not in fact a reference to the summons as later clarified. Whilst it is noted that the appellant was asked [5.3] if he had been accused of or committed any offence he answered no. That was explained by the appellant later.
11. At [64] the judge noted that there had been failings by the Home Office in their procedures as to whether and when amendments were allowed to the screening and asylum interview respectively and what cognisance was given to those said amendments in the refusal letter. I conclude that the judge erred in saying that the appellant had made no mention of receiving a summons and it is simply incorrect to state, having analysed what is said in the witness statement the appellant had not mentioned the summon. I consider that this is a significant flaw in the finding that the appellant lacked credibility.
12. Further, it is unclear why the provenance of photographs of the appellant attending a demonstration is relevant. Whilst it may be that it means that he was not identifiable by the police it is not suggested that these had been falsified or that they demonstrate anything other than the fact that the appellant attended a demonstration along with a large number of other people.
13. It is, however, unclear how the judge could have reached the conclusion that he would not have come to the attention of the police given the extent to which the evidence suggests that Vietnam does conduct close surveillance of demonstrations opposed to the regime. That, however, there are relatively minor matters and insufficient to undermine the findings against the appellant’s credibility.
14. It is, however, unclear as to why the judge considered it was reasonable for the appellant to have obtained documents from the hospital or why an inconsistency in the number of stitches he has received, two or five – long after the event is sufficient to undermine his credibility.
15. That said, as submitted by the respondent, there are some matters of logic which make little sense in the appellant’s narrative. If the appellant’s account is correct, then even before a summons was issued, he was stopped by the police and threatened and told that if he attended another demonstration he would be killed. That, as the judge noted, indicates that he had come to their attention. However, the statement that “Given that the Appellant had never been arrested before, not even at any demonstrations I find it hard to believe the police would have such information as to enable them to identify him at all” is predicated on assumptions about how the Vietnamese authorities work and the extent to which they are given information and can then act on it. There is sufficient material in the background evidence to suggest that they would not necessarily need to arrest people. Similarly, I consider that the judge is applying her own standards in finding it incredible that he would have been stopped on his way home from work before receiving the first summons and that they would not take direct action after the first had been issued. There appears also to be no logic behind the judge’s reasons for not accepting the appellant’s account on the basis of a lack of detail of being sacked from his job. She has assumed that the employer had learned that he was anti-government owing to some sort of profile but equally could be because he was tipped off by the police.
16. With respect to the findings on trafficking, it is unclear where the judge gets the figures of $10,000 or $15,000 from [73] and I consider there is significant merit in the judge applying her own understanding as to why the family would not have moved after being targeted.
17. Finally, the finding that the appellant would not be at risk is predicated on the assumption that there is not an outstanding debt which is in turn predicated on the soundness of the findings in respect of the actions of the traffickers which, for the reasons set out above, I consider flawed.
18. Taking all of these matters into account I consider that the judge’s findings as to the appellant’s credibility are so flawed such that they are unsustainable. Accordingly, I am satisfied the decision of the First-tier Tribunal involved the making of an error of law and I set it aside. Given that the error of law relates in this case to credibility, and it will be necessary to rehear the case in its entirely, I am satisfied that the appropriate course of action would be to remit it to the First-tier Tribunal for it to be heard again by a judge other than Judge D H Clapham.
Notice of Decision
(1) The decision of the First-tier Tribunal involved the making of an error of law and I remit it to the First-tier Tribunal to be determined again by a judge other than Judge D H Clapham.
Signed Date: 27 January 2025
Jeremy K H Rintoul
Judge of the Upper Tribunal