Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000815

First-tier Tribunal No: PA/57578/2023

LP/01674/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 30th of April 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE LAY

Between

MT (Vietnam)
(Anonymity Order made)
Appellant
v

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Q Ahmed, instructed by Lexmark Legal Associates
For the Respondent: Ms K Ojo, Senior Home Office Presenting Officer

An oral hearing at Field House on 16 April 2025

Order Regarding Anonymity

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

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 is a Vietnamese national who entered the UK in September 2018 as a student, with leave in that category extended in 2020. During that same period, following visits back to his home country, the Appellant claims that he and his family members came under attack multiple times from a gang to whom they had fallen into debt. He claimed asylum on 10 November 2021, leading to a refusal by the Respondent dated 14 September 2022.
2. The Appellant’s appeal was dismissed by the First-Tier Tribunal in a determination dated 16 December 2024. First-Tier Judge Plowright (at paragraph 75 of the determination) did “not accept the appellant has given an honest account as to what happened to him in Vietnam in 2019 and I do not accept that he has a genuine fear of returning to Vietnam because of a debt owed to gangsters”. The appeal was also dismissed under Articles 3 & 8 ECHR.
3. Permission to appeal to the Upper Tribunal was granted by First-Tier Judge Boyes on 17 February 2025 “on all matters [grounds]”.
4. There was no Rule 24 reply served by the Secretary of State.
5. Page references below are to the Composite Bundle produced for the UT hearing in the following format: [CB: XX] [Composite Bundle: PDF page number].
The hearing and preliminary issue
6. FTJ Boyes, in granting permission, had explicitly treated the application as “in time”. But it was in fact one day late, as acknowledged by the Applicant’s solicitor when he lodged his application on 31 December 2024 [CB: 41-42]. The reason given was a short delay in seeking advice from Counsel and the Appellant needing to arrange and provide private funds to bring the application.
7. In circumstances in which there has been a grant of permission which has not dealt in any way with the time issue, the grant of permission is deemed to be “conditional”/”provisional”: Boktor & Wanis (late application for permission) Egypt [2011] UKUT 00442 IAC, considered in Samir (FtT Permission to appeal: time) [2013] UKUT 00003 IAC. I am therefore obliged to “sit as a First-Tier Tribunal Judge” and make a decision on granting the application out of time. Mr Ojo, for the Secretary of State, did not oppose the application being admitted late. Having regard to the one-day delay, the witness statement of the Solicitor and the substance of the explanation provided, I therefore admit the application.
The grounds of appeal: clarified
8. While the grounds of appeal [CB: 26] were somewhat diffuse, the essential strands were as follows: Ground 1 criticised the FTJ’s approach to credibility, arguing primarily that a country expert report had not been given “any weight” notwithstanding the FTJ’s acknowledgment that the expert, Dr Anh, had found the appellant’s account to be “consistent with the background evidence”. In tandem the grounds, at paragraph 9 (albeit under the heading of a different ground), argued that “the judge did not consider the Appellant’s mental health as part of his asylum claim or indeed how it relates to his credibility as a witness”.
9. Ground 2 argued that the FTJ had engaged in “inappropriate speculation” on the issue of the Appellant’s claimed inability to contact his family in Vietnam, including via Facebook.
10. Ground 3 was framed as “failure to address the evidence of mental health problems in the asylum claim”. It had been treated by FTJ Boyes, in granting permission, as relating to a failure to rationally deal with a “new matter” raised by the Appellant before the hearing, namely a psychiatric report. FTJ Boyes put it as follows [CB: 44]: “I will grant permission on all matters but the principal issue is ground 3 and the Mental health. It is not possible to discern from the papers whether this was treated as a new matter, if so why, and if so whether the Home Office properly could argue this issue and the appellant could properly argue the issue as a PSG factor. I note there is reference to Article 3 but again it is unclear why this is relevant given the consent.”
11. I was grateful for Mr Ahmed, Counsel for the Appellant, and Mr Ojo, representing the Secretary of State for shedding light on the procedural confusion which understandably led FTJ Boyes to question how or whether the “new matter” of the psychiatric report had been integrated into the hearing and decision.
12. One piece of the puzzle was a letter “on behalf of the Secretary of State” dated 11 December 2024, uploaded on the day of the First-Tier hearing and to be found on MyHMCTS. It confirms that “at the hearing on 11/12/2024, the Appellant raised a New Matter on Human Rights Grounds and the matter of Article 8, significant obstacles relating to the appellant’s mental health… The Responded respectfully grants consent for this matter to be considered in the appeal…”
13. In other words, the Appellant had sought to rely on the psychiatric report of Dr Galappathie, dated 28 August 2024, to bolster the existing Article 8 ECHR claim, which also relied upon an addendum report of Dr Anh on mental health services in Vietnam [CB: 89]. It was never the intention to use the report to argue mental health as a “PSG factor”, per DH (Particular Social Group: Mental Health) Afghanistan [2020] UKUT 223 (IAC), as FTJ Boyes surmised, nor to establish a “medical claim” under Article 3 ECHR. The citing of DH in the Appeal Skeleton Argument, dated 16 August 2024, was to support a proposition about Particular Social Groups in Refugee Convention law as relevant to the Appellant as a victim of a gang not as regards mental health per se. The ASA, at paragraph 15(a)(i), mentions the addendum report of Dr Anh under the submissions on “very significant obstacles to integration” and, impliedly, Article 8 ECHR.
14. Regardless, the FTJ himself, at paragraph 15 of the determination, final bullet point, identified a key issue as “whether there would be a breach of Article 8 if the appellant were removed to Vietnam on the basis that there would be very significant obstacles to his integration there because of his mental health issues”.
15. As acknowledged Mr Ahmed, the issue for the Upper Tribunal was whether the psychiatric report had been integrated into the assessment of credibility of the asylum claim, dovetailing with Ground 1.
16. However, a final issue arose in legal argument. There was no challenge in the pleaded grounds to the Article 8 ECHR assessment itself (or, rather, the apparent absence of one). Paragraphs 75 to 77 of the determination may be said to be cursory and general – and there is no mention at all of the Dr Anh addendum report which was specifically addressed to the matter of mental health services in Vietnam – but this did not form part of the grounds of appeal and, in turn, the grant of permission.
17. To the extent that Mr Ahmed pointed towards inadequacies and issues in the handling of Article 8 ECHR, they lay in principle outside the ambit of this error of law hearing, subject of course to the contention that this was a “Robinson obvious” point (see R v Secretary of State for the Home Department, ex p Robinson [1997] 3 WLR 1162) and, as such, there would be power to consider any other point arising from the decision if the interests of justice so require. This issue is considered at paragraph 30 below.
Submissions
18. On behalf of the Appellant, Mr Ahmed submitted, as regards Ground 1, that the FTJ’s wholesale rejection of the Appellant’s account, expressed at paragraph 73 of the determination, erred in failing to give any weight to the country expert’s view that “in my view, his account is consistent with the country information” [CB: 112].
19. Further, Mr Ahmed argued that, as regards Ground 3, despite the Appellant’s acknowledged status as a Vulnerable Witness (paragraph 18) and the psychiatric report’s conclusions that the Appellant suffered from depression and Post-Traumatic Stress Disorder, the FTJ had not integrated this into the consideration/”findings” on credibility to be found at paragraphs 63 to 72.
20. On Ground 2, Mr Ahmed maintained that there was no evidential basis for the FTJ’s adverse conclusions as to the “plausibility” of the Appellant having lost contact with his family.
21. Finally, Mr Ahmed submitted that the FTJ had plainly failed to resolve a central issue in the appeal, namely “whether there would be a breach of Article 8 if the appellant were removed to Vietnam on the basis that there would be very significant obstacles to his integration there because of his mental health issue”, that paragraph 76 does not adequately resolve that issue and the absence of a proportionality assessment is a Robinson-obvious failing.
22. On behalf of the Secretary of State, Mr Ojo submitted that the mental health issues had been taken into account by the Judge. The Appellant had been identified as a Vulnerable Witness and appropriate procedural adjustments were made. Mr Ojo said that paragraph 76 of the determination legitimately contained a critique of the psychiatric report and that, in the absence of GP records, even the expert himself had framed their diagnoses as “provisional”, both as to depression and PTSD. Consistent with JL (medical reports-credibility) China [2013] UKUT 00145 (IAC), the more a diagnosis rests on credibility, the less weight can be attached to it. The FTJ had, at paragraphs 63 to 72, clearly laid out the adverse credibility points which concerned him. These simply were not displaced by the psychiatric evidence, which was in any event limited and “provisional”.
23. As to the Article 8 ECHR assessment, or lack of one, Mr Ojo submitted that it was not material because, on the FTJ’s findings, a proportionality assessment could only have been resolved one way, ie. against the Appellant.
24. Both the Appellant and the Respondent submitted that, if I were to find an error of law, the appropriate step would be remittal to the First-Tier Tribunal for a de novo hearing.
Conclusions
25. The FTJ, at paragraph 18, clearly accepted that the Appellant was a Vulnerable Witness on account of the psychiatric report. In the Appeal Skeleton Argument [CB: 124], at paragraph 5, those representing the Appellant sought to point the Tribunal towards the Joint Presidential Guidance Note No1 of 2010 and specifically to the following: “Where there were clear discrepancies in the oral evidence, consider the extent to which the age, vulnerability or sensitivity of the witness was an element of that discrepancy or lack of clarity… The decision should record whether the Tribunal has concluded the appellant (or a witness) is a child, vulnerable or sensitive, the effect the Tribunal considered the identified vulnerability had in assessing the evidence before it and thus whether the Tribunal was satisfied whether the appellant had established his or her case to the relevant standard of proof.”
26. As emphasised in AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123 [at 30]:
“To assist parties and tribunals a Practice Direction 'First-tier and Upper Tribunal Child, Vulnerable Adult and Sensitive Witnesses', was issued by the Senior President, Sir Robert Carnwath, with the agreement of the Lord Chancellor on 30 October 2008. In addition, joint Presidential Guidance Note No 2 of 2010 was issued by the then President of UTIAC, Blake J and the acting President of the FtT (IAC), Judge Arfon-Jones. The directions and guidance contained in them are to be followed and for the convenience of practitioners, they are annexed to this judgment. Failure to follow them will most likely be a material error of law. They are to be found in the Annex to this judgment.”
27. The concern that arises here is that, on the face of the determination, there does not appear to be consideration by the FTJ of the acknowledged vulnerability of the Appellant when evaluating inconsistencies in his account of events in Vietnam and, indeed, aspects of his account in the UK, including the timing of his asylum claim. This would have necessarily involved integrating the psychiatric report’s conclusions, however “provisional”, into the findings on credibility, as pleaded in Grounds 1 and 3. It may well have been open to the FTJ to find that the problems in the written and oral evidence remained to such an extent that the lower threshold for establishing reasonable likelihood had not been met, and that approach would be entirely consistent with HH (medical evidence; effect of Mibanga) Ethiopia [2005] UKAIT 00164, but it cannot be assumed that an FTJ has conducted such an exercise when there is no or no adequate reasoning in the determination itself. The Court of Appeal reiterated the importance of the guidance and correct approach in AM. It is at least capable of having made a difference and is thus a material error of law.
28. The other strand of Ground 1, criticising the approach taken to the first country expert report of Dr Anh does not, in my view, establish an error of law in the alternative. The FTJ, at paragraph 62, clearly had regard to the country expert’s view that the Appellant’s account was in general terms “consistent” with the background evidence but the FTJ then went on to evaluate the other evidence in order to make findings. In my view, the FTJ gave at least some weight to Dr Anh’s main report and it is wrong to suggest that no weight at all was given to it.
29. I reject Ground 2. A First-Tier Judge is entitled to engage in common-sense inference. The FTJ was ultimately sceptical about the Appellant’s loss of contact with his family. That evaluation should have involved having regard to the psychiatric report (hence the error of law I have found at paragraph 27 above) but Ground 2, as pleaded, does not on its own, establish an error of law.
30. Finally, I find that that the FTJ’s failure to conduct a meaningful proportionality assessment under Article 8 ECHR is a Robinson-obvious error. It is capable of having made a difference to the outcome of the appeal, not least if the addendum report of Dr Tran had been considered on the specific issue of mental health. It was not sufficient in the context of this appeal to simply apply paragraph 5.1(b) of Appendix Private Life on “very significant obstacles” and treat it as exhaustive of Article 8 ECHR. The FTJ was obliged to go on to consider proportionality.
31. I have had regard to Section 7 of the “Senior President’s Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal” (SPT Ryder, 11 June 2018) and Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC). Remittal is not the usual course but it is appropriate in the circumstances of this appeal, having regard to the nature and extent of the factual finding required.

Notice of Decision
The decision of the First-tier Tribunal, which dismissed the appeal, is set aside and the appeal is remitted to the First-Tier Tribunal to be heard afresh.

Taimour Lay

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 April 2025