Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003552

First-tier Tribunal No: PA/63240/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 11th of March 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE WILDING

Between

DVN
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE
HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Blockley, Counsel, instructed by A J Bradley and Co Solicitors
For the Respondent: Ms Simbi, Home Office Presenting Officer

Heard at Field House on 3 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. The appellant was granted anonymity by the First-tier Tribunal as he is an asylum applicant. I continue that order.
2. The appellant is a national of Vietnam, on 10 June 2024, Deputy Upper Tribunal Judge Farrelly, sitting as Judge of the First-Tier Tribunal (‘the Judge’) dismissed his appeal on international protection grounds.
Background
3. The appellant claims international protection on the basis of his claim that the Vietnamese authorities want to acquite his family’s land, and as a result he was detained and ill treated. The Judge rejected the appellant’s narrative for lacking credibility. Disatisified the appellant appealed on one ground of appeal, he argued that the Judge materially erred in law for applying the wrong standard of proof. The appellant in particular highlighted the following paragraphs demonstrating the error:
27. He recounts how he did not know where he was but walked for several hours and then approached a Vietnamese couple. He says they befriended him, and they continue to live with them in Glasgow. He states the male had been granted refugee status. Whilst it is possible I find the likelihood of such a fortuitous meeting occurring improbable.
28. The respondent has accepted the used an agent to get to the United Kingdom. He has claimed his family paid the agent by borrowing money from a loan shark. I found his account of the security in relation to the loan improbable. He referred to them using the house as a deposit and that they were given the title deeds to the property. Again, the money lenders may have wanted security, but this was not an ordinary commercial transaction, and it would seem difficult to see how it could have been enforced lawfully. He did not indicate how it was to be paid back. He does not claim to have been forced to work to do this. He said his mother and wife had to leave to take employment. I have reservations about his claim that he is not regular contact with them.
29. In assessing the probability of the claims made I had regard to the country information provided. The country policy notes of January 2023 include discussion of illegal moneylenders. The guidance indicates that the treatment of those who fail to repay is not sufficiently serious to meet the threshold of serious harm for humanitarian protection. The report indicates that 79% of Vietnamese do not have access to formal financial services and illegal moneylending is widespread. It records money can be borrowed with little collateral, and the details are not usually rendered to writing. Smaller loans are based on relationships between individuals. Family members can be harassed to pay back. The police are willing and able to offer effective protection and the State has made efforts to tackle illegal moneylending. Corruption does exist amongst the police. There is an authorised interest rate of around 20% whereas moneylenders offer loans five times higher than that. The moneylenders are often linked to trafficking. The logic of this would be that this would be a means for repaying the loan.
30. The appellant has indicated he was advanced around US$25,000. This would be a substantial amount of money. I do not see how the deposit of the family’s title deeds with the money lenders would safeguard repayment as it seemed improbable, they could enforce the debt through the courts. A more likely scenario is that he had agreed to pay off the debt by working. However, he has not made this claim. Whilst the debts can be recovered from other family members, he says his father was incarcerated and his mother and wife have moved for employment. However, this would not explain why there was no contact between them.
31. I have attempted to look at matters in the round. He is in the United Kingdom illegally. I accept as credible his account that he is from a poor background. It would seem likely that money has been borrowed to facilitate his travel. I accept his account that agents were involved. However, I do not accept there is a situation of trafficking. It is not claimed that he was forced to work on route. The agents allowed him to travel to the United Kingdom unaccompanied. I believe it more likely that money was borrowed from an unofficial source. For his journey. The arrangement may have been that he would work in the United Kingdom and then repay the loan. The money lenders may have taken title to the appellant’s property as security. However, I do not see how this could have been easily enforced by them. Nevertheless, I accept he is indebted to them.
The hearing
4. I heard short submissions from the two advocates. In particular Ms Simbi accepted that there was a material error of law in the Judge’s application of the standard of proof, the error had also infected areas of positive findings, as a result none of the findings of fact could stand.
Decision and reasons
5. Ms Simbi accepted that the Judge had materially erred. She was right to do so. The Judge was determining a protection claim made in 2021, this pre-dated the introduced of the relevant provisions in the Nationality and Asylum Act 2022 (‘NABA’) from 28 June 2022 which brings in a standard of proof in considering past events of a balance of probabilities. The Judge therefore had to asses the case applying the ‘reasonable degree of likelihood.
6. There is little determination to give the reader confidence that the Judge did apply the correct standard of proof. The Judge says at paragraph 16 “I bear in mind the low threshold for a claim to succeed”, however whilst in and of itself reflects a low standard of proof, it does not set out what it is.
7. The Judge then goes on to make findings of fact, both positive, and negative, from paragraph 17 onwards in which he uses the following phrases “I accept as probable”, “I accept this as possible”, “I find the likelihood of such a fortuitous meeting occurring improbable”, “I found his account of the security in relation to the loan improbable”, “[in] assessing the probability of the claims made…”, “a more likely scenario is…”, “I believe it more likely that money was borrowed from an unofficial source”. These various phrases do not give the reader any confidence that the Judge was applying the reasonable degree of likelihood, indeed the test applied gives the very strong impression the Judge was applying the civil balance of probabilities standard.
8. As a consequence the Judge’s decision has to be set aside. As I indicated at the hearing given the fundamental failure of the Judge to apply the correct standard of proof this is a case which ought to be remitted to the First-tier Tribunal. No findings of fact are retained, the case will be heard de novo.

Notice of Decision
The decision of the First-tier Tribunal is set aside
The appeal is remitted to the First-tier Tribunal to be heard by any Judge other than Judge Farrelly.

Judge T.S. Wilding

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

Date: 3rd March 2025