Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002570
First-tier Tribunal No: PA/59159/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 6th of March 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE GIBBS

Between

TN
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr. Dixon, Counsel, instructed by Deus Nexus Solicitors Ltd.
For the Respondent: Ms. Newton, Senior Presenting Officer

Heard at Field House on 25 February 2025

ANONYMITY ORDER

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 appeals a decision of the First-tier Tribunal. By the decision sent to the parties on 19 April 2024 First-tier Tribunal Judge Montgomery (“the Judge”) refused the appellant’s protection and human rights appeal.

Anonymity

2. The Judge issued an anonymity order. Neither representative requested that the order be set aside and I have decided to maintain the anonymity order. This is because the underlying claim involves international protection issues and I consider that at the present time the appellant’s private life rights, protected by Article 8 ECHR, outweigh the public right to be informed that he is a party to these proceedings. The latter right is protected by Article 10 ECHR.

3. The anonymity order is detailed above.

Background
4. The appellant is a citizen of Vietnam. He claims to have worked as a fisherman and to fear persecution from the Vietnamese authorities because he participated in demonstrations against a company called Formosa in 2016. As a consequence the police came to his house, beat him and then took him to the police station where he was interrogated for two hours after which he was released.

5. The appellant also claims that in 2017 he filed petitions in Vietnam as well as in front of the Taiwanese Embassy demanding compensation for those affected by untreated discharges. He claims to have been stopped by the police and beaten.

6. The appellant’s evidence is that he moved to a different area but was found by the authorities in early 2019 and was issued with a summons to go to the local police station. As a consequence he went into hiding. In July 2020 the appellant found out that the authorities had issued a second summons for him. A further summons was issued in January 2021, by which time the appellant had sought asylum in the UK.

Grounds of Appeal

7. The appellant appeals on three grounds:

i) Perversity – The Judge found that the appellant’s failure to claim asylum on arrival in the United Kingdom damages his credibility. They also placed weight on the appellant’s behaviour in accordance with s.8 of the Asylum and Immigration (Treatment of Claimants etc) 2004. This is in effect “double counting” the appellant’s immigration history ;

ii) Perversity – The Judge did not place any weight on the documentary evidence because the translator had not provided their qualifications. This was not a matter that had been canvassed with the parties. The Judge also assessed the appellant’s credibility before considering the documentary evidence which is wrong in law;

iii) Perversity – The Judge failed to take into account the appellant’s vulnerability when assessing the evidence. Additionally that the Judge considered the medical evidence only after rejecting the appellant’s credibility which is wrong in law.

8. First-tier Tribunal (FtT) Judge Pickering granted permission to appeal by a decision sent to the parties on 1 June 2024. FtT Judge Pickering was not persuaded that ground i) disclosed an arguable error of law. Permission on this ground was therefore refused. With regards to grounds ii) and iii) FtT Judge Pickering found that there were arguable errors of law.

Discussion and Reasons

9. I remind myself of the need for appropriate judicial restraint before interfering with a decision of the First-tier Tribunal, particularly where the fact-finding Judge has considered evidence from a variety of sources and has undertaken an evaluation of it, set in the applicable legal framework. I also remind myself that no decision will be perfect, that such decisions must be read holistically and sensibly, and that there is no requirement to give reasons for reasons.

10. In the course of the hearing Mr. Dixon accepted that the challenges made under grounds ii) and iii) would be better characterised as challenges made on the basis that the judge had erred in law rather than that the findings were perverse.

11. I will first address ground iii). It is not a matter of dispute that the Judge had before them a psychologist’s report diagnosing the appellant with Post Traumatic Stress Disorder. Further, that the parties agreed that the appellant should be treated as a vulnerable witness. Mr. Dixon’s position is a simple one; although the Judge had recognised the appellant’s vulnerability they failed to take this into account when assessing his credibility. The Judge also made his credibility findings before considering the psychologist’s report.

12. Having carefully considered the Judge’s decision I am satisfied that their treatment of the medical evidence involved an error of law. The Judge directed that the appellant should be treated as a vulnerable witness; specifically in the appeal hearing as recorded in the decision at paragraphs [10-15]. However, I find that the Judge failed to direct themselves to the Joint Presidential Guidance Note No 2 of 2010: Child, vulnerable adult and sensitive appellant guidance, particularly s.10(3) when assessing the appellant’s evidence in their written decision:

10.3 Assessing evidence
Take account of potentially corroborative evidence
Be aware:
i. Children often do not provide as much detail as adults in recalling experiences and may often manifest their fears differently from adults;
ii. Some forms of disability cause or result in impaired memory;
iii. The order and manner in which evidence is given may be affected by mental, psychological or emotional trauma or disability;
iv. Comprehension of questioning may have been impaired.

13. I find that at [47-52] the Judge makes no mention of vulnerability as a factor in their assessment of the appellant’s credibility. Although Ms. Newton directed my attention to [48] as evidence that the Judge had taken vulnerability into account I am not persuaded by this. I find that [48] this is no more than a generic statement:

48. In reaching my findings, I have taken account of everything I have heard, and considered all the documentary evidence I was referred to by the parties. I carefully considered all the evidence in the round, in line with the guidance in Ravichandran v SSHD [1996] Im AR 97 and Karankaran v SSHD 2000 EWCA Civ 11. I shall refer to the evidence and submissions so far as is necessary to explain my findings and reasons.

14. Further, I find that at [51], where the judge sets out the relevant factors in their assessment of credibility there is no mention of vulnerability.

51. In the case of a claim for asylum, at least three factors will be relevant: -
(a) the internal consistency of the appellant’s claim
(b) the inherent plausibility of the appellant’s claim; and
(c) the consistency of the claim with external factors, of the sort that is typically found in country guidance.

15. In addition I find that the Judge does not appear to consider the psychologist’s report until [80-85] of the decision. Whilst this does not in itself represent an error of law in line with Underhill LJ in R(MN) v SSHD & Others [2021] 1 W.L.R. 1956 when it was held that “[…] clear that the question is one of form rather than substance: if it is evident that the tribunal has in fact taken the expert evidence into account as part of the primary assessment, it does not matter at what particular point in the decision it is specifically referred to.” the fundamental principle in Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367 remains good law in that it would be wrong to reject credibility and then ask whether the finding should shift to make way for other evidence.

16. In this decision I find that the Judge made their findings regarding credibility at [79], prior to any express consideration of the psychologist’s report:

79. Taking account of the inconsistencies and implausible aspects off the appellants evidence, coupled with the significant Section 8 factors, I find that the appellant has not established the core of his account to the low standard allowed. I find that he has failed to establish that he took part in protests, presented petitions, or engaged in any political activity in Vietnam. He has failed to establish that he is now, or ever has been, a person of adverse interest to the Vietnamese authorities.

17. At no point prior to this conclusion does the Judge refer to the appellant’s diagnosis of Post Traumatic Stress Disorder, a diagnosis made by an expert that the Judge records [80] is a suitable person. As set out above at {13} I find that prior to this conclusion there are no more than generic statements about vulnerability rather than an engagement with the specific report provided in respect of the appellant. Further, the Judge does not identify any inconsistency in the account provided by the appellant to the expert but does not consider this consistency as part of their credibility assessment.

18. Whilst I accept that the weight that the Judge decides to attach to medical evidence is a matter for them the error of law in this decision is the judge’s failure to take the report into account as part of the credibility assessment. I find that this is a “Mibanga error” and consequently a material error of law.

19. I am satisfied that in these circumstances I need not decide the remaining grounds of appeal.

Disposal

20. The parties expressed the view that the matter should be remitted to the First-tier Tribunal for a de novo hearing because a full and extensive fact finding process is required.

21. The appeal is remitted to the First-tier Tribunal in Glasgow, for a rehearing before any Judge other than First-tier Tribunal Judge Montgomery. No findings of fact are preserved.

Notice of Decision

22. The decision of the First-tier Tribunal dated 19 April 2024 is set aside for a material error of law.

L K Gibbs
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
28 February 2025