Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002783

First-tier Tribunal No: PA/54261/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 25th of March 2025

Before

UPPER TRIBUNAL JUDGE OWENS
DEPUTY UPPER TRIBUNAL JUDGE BURNETT

Between

N.N
(ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department (SSHD)
Respondent

Representation:
For the Appellant: Mr Forrest, Counsel instructed by Bhatt Murphy Solicitors
For the Respondent: Mr A Mullin, Senior Presenting Officer.

Heard at Field House on 28 February 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and any member of his family 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 and any member of his family. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Introduction
1. This is the appellant’s appeal with permission against a decision of First-tier Tribunal Judge Connal (“the judge”) dated 22 April 2024, sitting in Glasgow.

Background
2. The appellant is a national of Vietnam. He made a protection claim on the basis that he had attended anti-government demonstrations in Vietnam and that the authorities had become aware that he was involved. He hid and fled Vietnam. The authorities subsequently visited his home with a “letter of request” for him to attend the police station. He asserts that he is at risk of arrest, detention and mistreatment amounting to serious harm on return. His claim was rejected by the respondent in a letter dated 29 June 2023. The respondent accepted that the appellant had attended two demonstrations but rejected the remainder of the claim because of discrepancies, a lack of detail and inconsistencies.

The judge’s decision
3. The appeal was heard by a judge in Glasgow on 2 April 2024. The judge identified the issues in dispute between the parties at [14]. The judge heard oral evidence and submissions. The judge dismissed the appellant’s appeal in a decision dated 22 April 2024 finding that the appellant had not come to any adverse attention of the authorities in Vietnam and therefore would not be at risk on return.

Grounds of appeal
4. The single ground of appeal states:
1. The FTT erred in law by failing to take account of the expert’s view that the appellant will be interviewed on return about his circumstances. There is a real risk that he will be questioned about why he fled Vietnam. He is not expected to lie (SSH & HR (illegal exit; failed asylum seekers) Iran CG [2016] UKUT 00308 (IAC) at paragraph 23). It is not said that his activities were in bad faith. It has been accepted that he attended 2 anti-government demonstrations. The FTT accepted what the expert said in terms of the consequences for even low-level attendees at demonstrations. For example at paragraph 33 of the FTT’s decision, the FTT notes that persons can be prosecuted under criminal legislation and can be ill-treated by the police whilst in detention. That error is material because the appellant will come to the attention of the authorities even if the letter of request cannot be relied upon and there is a real risk of ill-treatment from the authorities on discovery of the appellant’s attendance at the 2 demonstrations. If the FTT has taken account of this information, the informed reader is left in real and substantial doubt as to how the FTT has assessed that. The appellant is prejudiced where that information indicates that the appellant will come to the attention of the authorities and will face a real risk.

Permission to appeal
5. Permission to appeal was granted by Upper Tribunal Judge A Mahmood. The grant of permission was stated in the following terms:
3.There is one ground of appeal which is thorough. It highlights that the Appellant’s claim that he had attended two demonstrations in Vietnam had been accepted and that a detailed and specific expert report had dealt with the risks on return. Whilst the Appellant’s evidence and that of the expert was not accepted in respect of the “Letter of Request”, the Judge had found at paragraph 33(a) that the evidence of the expert was generally consistent with the CPIN that even low level demonstrators will face prosecution and ill-treatment.
4. The Judge’s decision is detailed and deals with matters at some length on the basis of the case that was put to her. It is not clear whether the argument now being advanced that the Appellant would not be expected to lie on return about his attendance at demonstrations was put to the Judge, noting that the skeleton argument at the First-tier Tribunal makes no clear mention of this. This will need to be specifically focused upon by the Appellant at the hearing.
5. In view of the acceptance by the Appellant of the attendance at the demonstrations in Vietnam, coupled with the acceptance of part of the expert report alongside the CPIN, permission is granted to argue the ground of appeal in full.

The hearing.
6. The hearing was conducted remotely via the CVP platform. Mr Forrest appeared for the appellant and Mr Mullin appeared for the respondent. Both representatives confirmed that they could hear and see us and each other and the remote hearing proceeded smoothly.

Submissions
7. We heard submissions from the parties which are contained within the record of proceedings. The following is only a brief summary of those submissions and sets out the salient points which were put forward.
8. Mr Forrest relied upon the ground of appeal and pointed the Tribunal to parts of the expert report, in particular, section 2 of the report. He submitted that the expert report was nuanced. He referred to those sections which stated that there was a risk to low level demonstrators. Mr Forrest acknowledged that it was not put in the appellant’s skeleton argument (“ASA”) or in submissions to the judge, that the appellant would be questioned upon return and so would be at risk at this crucial “pinch point”. Mr Forrest put the error of law on the basis that the judge failed to make a future assessment of risk to the appellant on the basis of the expert report. He submitted that the judge had failed to take into account the section of the report he highlighted and failed to assess the risk to the appellant against that evidence.
9. Mr Mullin submitted that the appellant was in difficulty because the judge’s negative findings had not been challenged. The judge had found that the appellant had not come to the attention of the authorities in the past. The “letter of request” was found to be unreliable. The activity relied upon was over 5 years ago. He submitted that the background evidence did not say that all demonstrators were routinely detained and mistreated. The risk was contingent upon the level and extent of the appellant’s activities. He submitted that the appellant’s case was not made out in light of the judge’s findings that the appellant had never come to the attention of the authorities against the background of the expert evidence. The judge had properly assessed the risk to the appellant. Mr Mullins invited us to find that there was no error of law.
Analysis and conclusions
10. It was accepted by the respondent that the appellant had attended two demonstrations in Vietnam in June and July 2018. The judge found that the appellant did not speak at or organise those protests ([21]). The appellant’s case was that he had not received adverse attention following the first protest but had received adverse attention following the second protest. The judge made a finding that the appellant had not come to the attention of the authorities in Vietnam. The judge found that reliance could not be paced upon the “letter of request”.
11. The appellant did not challenge any of the factual findings of the judge. The appellant did not give evidence that he has undertaken political activities in the UK. It was not submitted that he would be at risk as a result of “sur place” activities. The appellant also did not give evidence that he would participate in demonstrations in the future in Vietnam, if returned there and no arguments were made to the judge in respect of this.
12. Mr Forrest acknowledged that it was not put to the judge that the appellant would be questioned upon return to Vietnam or that the appellant would be asked about the demonstrations and that he could not be expected to lie. This argument was not contained within the ASA or made in oral submissions.
13. Mr Forrest put the argument for the appellant on the basis that the appellant “may” be at risk, when an analysis was made of the expert report. Mr Forrest submitted that the judge had focused upon past “persecution” (risk) and had failed to address the expert report when considering future risk.
14. The Tribunal questioned Mr Forrest about how the demonstrations of the appellant would come to the attention of the authorities upon return and so why the appellant would be at risk. Mr Forrest stated that the expert report opined that the risk profile of individuals was nuanced. He argued that the judge had failed to consider this future risk and thus failed to take proper account of the expert report. In particular he pointed to section 2.1 and 2.7 of the expert report.
15. At paragraph 2.1 the expert stated the following:
“2.1 The Home Office accepted the Appellant’s claim on his protest involvement as “low level attendance at protests in Vietnam”. In my view, even the Appellant participated the protest as a low-level protester, he still would face the risks in return with details explaining below.”
16. At paragraph 2.7 the expert stated the following:
“2.7 The demonstrators, even at low profile/level such as the Appellant still face the risks of discrimination and ill-treatment from local authority. I would like to cite here the relevant parts of the Australia DFAT report 2021 as follow:
“It is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when. Those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting. Those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted (para. 3.57)
Low-level users of little profile are sometimes subject to fines, arrest and prison sentences, but sources told DFAT this is inconsistent and may depend on local authorities.”
17. The judge set out the issues between the parties ( [14] and [15]). The judge stated she had regard to all the evidence before her [23]. The judge addressed the expert report at [26], [33] and [36(d-f)]. It is clear to us that the judge had regard to the expert report and took it into account. At [33] the judge stated:
(i) The Expert’s opinion includes: “Protest in some sensitive areas including political opinion and religion is actively suppressed by the Government. Those involved might be subject to monitoring by the local authority and police or face numerous serious penalties, depending on their level of involvement (such as demonstration organizer or mere participant). The participants might be subject to monitoring from local authority and police. However, the organisers would be prosecuted for the crimes of infringing upon national securities… in particular the four crimes below: If they are the organiser: […] If they are ordinary demonstrators (low political profile person) they will be prosecuted with the crime of Article 245. Causing public disorder.” (emphasis original).
(ii) The Expert also states that, from June 2018, the Vietnamese authorities applied much tighter control and monitoring of participants in opposing demonstrations in the interests of national security, and the Expert refers to the arrest, detention, summonsing, and, in some cases, prosecution, of demonstrators at demonstrations which took place on 9 - 15 June 2018 (the Expert does not refer to the demonstrations which are relied on by the Appellant). The Expert’s opinion includes that “…demonstrators, even at low profile/level such as the Appellant still face the risks of discrimination and ill-treatment from local authority” (my emphasis) and the Expert refers to the Australian Government’s Department for Foreign Affairs and Trade (DFAT) 2021 report as including that the treatment of low-level protestors of little profile is inconsistent and may depend on local authorities.
(b) At Part 3 of the Report, the Expert then opines that the Appellant would be at risk from the authorities on return to Vietnam, but it is clear that in reaching this opinion the Expert relied on the receipt by the Appellant’s father of the Letter of Request as evidencing the same (underlining below, my emphasis):
“Part 3. The likelihood that the Appellant would receive adverse attention from local authority upon return and the prison/detention centre conditions in Vietnam
3.1 The Appellant fled his place of living after attended protests then he escaped Vietnam. The Appellant instructs that his father in Vietnam was invited to the People’s Committee of […] (his place of living) to answers about the Appellant’s activities of attending demonstrations then escape. In my view, if the Appellant is returned to Vietnam, it is very likely he would be summoned to the local police to answer about his escaping and his time abroad.
In my view, he is very likely to be questioned and temporarily detained at the police station. As a result, he will face a real risk of being abused at the police station with the details set out below”
18. We conclude that the judge had regard to the expert evidence before her and the nuanced assessment of risk. It was important that the particular facts of the appellant’s claim were assessed. We conclude that this is what the judge did. The judge concluded that the appellant had not come to the attention of the authorities and rejected the reliability of the “letter of request”. The judge took into account the risk to someone of the appellant’s low profile and the evidence that the risk to such an individual was not as great as to someone who had carried out a more prominent position in protests.
19. We should also note that it was not the position of the appellant that all Vietnamese nationals would be questioned about their political activities on return. The expert evidence went only so far to say that returnees would be questioned, but the evidence was not that they would be questioned in-depth about any previous political activities or that these would come to light if the authorities did not know about them. The expert did not go into any detail about what an individual might be asked. The expert’s opinion, that the appellant would be at risk because of the questioning, was on the basis that there was a “letter of request” in existence and the authorities were already interested in him. It is this that would cause the risk of ill treatment. This account, as we have said was rejected by the judge. The expert did not comment on what would happen to the appellant if the authorities were not already aware of him. We also note that the argument that the appellant would be at risk on return as a result of questioning was also not an argument which was presented to the judge.
20. We also have in mind the Court of Appeal’s dicta in Volpi v Volpi [2022] EWCA Civ 464 that it is not the role of an appellate court to come to its own conclusions on the evidence before the Judge. It is essential that there is appropriate judicial restraint before interfering with the decision of the expert first instance judge.
21. We conclude that the judge made findings of fact that were open to the judge. The findings were not challenged by the appellant. We conclude that the judge came to a finding about the risk to the appellant on return having had proper regard to the expert evidence. We can discern no error of law in the judge’s decision as presented to us by the appellant.
22. We are satisfied that there is no material error of law disclosed in the single ground of appeal. The ground is not made out.

Notice of Decision
23. The appellant’s appeal to the Upper Tribunal is dismissed.
24. The decision of the First-tier Tribunal did not involve the making of a material error of law and so the decision of the First-tier dismissing the appeal on protection and human rights grounds stands.

Iain Burnett

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

18 March 2025