Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002215

First-tier Tribunal No: PA/64058/2023
IA/00847/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 27th of January 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE NEILSON

Between

T.D.
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Lau, Solicitor, AJ Bradley & Co, Solicitors
For the Respondent: Mr Wain, Senior Home Office Presenting Officer

Heard in Edinburgh on 4 December 2025

Order Regarding Anonymity

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

No-one shall publish or reveal any information, including the name or address of the respondent, likely to lead members of the public to identify the respondent. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction & Background
1. The appellant is a national of Vietnam. The respondent is the Secretary of State for the Home Department. The appellant appeals with permission granted on 14 July 2025 against the decision of the First-Tier Tribunal (“the FtT”) given on 27 February 2025 to dismiss the appellants’ appeal against the refusal of their protection claim.
2. The basis of the appellants claim was that he was a victim of trafficking, having been trafficked to China and Russia and that he was at risk on return due to his political opinion and due to the risk of re-trafficking. He alleged he was of adverse interest to the Vietnamese authorities in light of his involvement in a protest in Vietnam in 2018.
3. The respondent accepted that the appellant was a Vietnamese national and that he had been involved in a political demonstration opposing the Vietnamese Government and that he had been trafficked to China and Russia. The respondent rejected the appellant’s protection claim on the basis that they did not accept that the appellant was of adverse interest to the Vietnamese authorities. The respondent also did not accept that the appellant was at risk of being re-trafficked.
4. The appellant appealed the refusal of his international protection claim to the FtT. In a written decision dated 27 February 2025 (“the FtT Decision”) the FtT rejected the appellant’s appeal. The FtT did not accept that the appellant was of adverse interest to the Vietnamese authorities and did not accept that he was at risk of being re-trafficked.
5. The appeal came before the Upper Tribunal at an error of law hearing on 4 December 2025. At the hearing I heard submissions from the parties and reserved my decision. For the reasons set out below, I find that there were material errors of law and I uphold the appeal.
6. The FtT made an anonymity order in this appeal, and I have considered whether it is appropriate for that order to continue pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (as amended). Having taken into account Guidance Note 2022 No.2: Anonymity Orders and Hearings in Private, I am satisfied that it is appropriate to make such an order because the appellant has made an application for international protection and I consider that the UK’s obligations towards applicants for international protection and the need to protect the confidentiality of the asylum process outweigh the public interest in open justice at this stage in the proceedings.
Grounds of Appeal, Discussion and Conclusions
7. There were a number of grounds of appeal pursued by the appellant and which were granted in the permission given on 14 July 2025. These are referenced below as the First to Fourth Grounds of Appeal. In addition, there was a further ground of appeal raised by the appellant at the hearing on 4 December 2025 for the first time.
8. The ground of appeal that was raised for the first time on 4 December 2025 was that there was a fundamental problem with the FtT Decision in that it did not name the Judge who heard the appeal and delivered the decision. Ms Lau had only just noticed this error which is why it was not raised earlier. Mr Wain objected to this ground of appeal being allowed as there was no formal written application and no reason why it was being raised so late in the day. Ms Lau referred me to the authority of NA -v- SSHD 2010 UKUT 444 IAC. Whilst I note Mr Wain’s objection if Ms Lau is correct and the FtT Decision is fatally flawed by the failure to name the Judge then it is an issue I need to address. However, having considered NA I do not consider that there is any merit to the point raised by Ms Lau. In NA the issue was fundamental because the decision was made on the papers. There was no hearing in open court. That is not the position here. There was a hearing in open court before the FtT Judge. Their identity will have been disclosed at that point. Their identity will be apparent from the recording and from the records held by the administration (indeed I note from the witness statement from the appellant dated 6 October 2025 that the appellant has been told by his lawyer that the FtT Judge was Judge Farrelly). I note that in paragraph 15 of NA there is specific comment that “where a hearing took place at which the appellant or his representative was present, there is likely to be no difficulty over identity.” I also note that the FtT Decision has been signed by the Judge. This is not a case of a Judge remaining anonymous in a way that undermines justice. I accordingly find that there is no error of law in the FtT Decision not formally naming the Judge.
9. The grounds of appeal that were subject to the grant of permission were as follows. First Ground of Appeal – Failure to apply correct standard of proof. Second Ground of Appeal - - failure to take account of, or give adequate reasons to explain the rejection of, evidence that the authorities in Vietnam were looking for him. Third Ground of Appeal - failure to take account of, or give adequate reasons to explain the rejection of, evidence that the appellant was in debt to traffickers. Fourth Ground of Appeal – a failure to consider the objective evidence in relation to the issue of state protection.
10. We heard submissions from both Ms Lau for the appellants and Mr Wain for the respondent.
11. In deciding whether the FtT’s decision involved the making of a material error of law, I have reminded myself of the guidance set out by the Court of Appeal in Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201, at [26], (i) the Upper Tribunal should not rush to find an error of law simply because it might have reached a different conclusion on the facts or expressed themselves differently; (ii) where a relevant point was not expressly mentioned by the First-Tier Tribunal, the Upper Tribunal should be slow to infer that it had not been taken into account; (iii) when it comes to the reasons given by the First-Tier Tribunal, the Upper Tribunal should exercise judicial restraint and not assume that the First-Tier Tribunal misdirected itself just because not every step in its reasoning was fully set out; and (iv) it is of the nature of assessment that different tribunals, without illegality or irrationality, may reach different conclusions on the same case. The mere fact that one tribunal has reached what might appear to be an unusually generous view of the facts does not mean that it has made an error of law.
The First Ground of Appeal
12. The First Ground of Appeal was that the FtT applied the incorrect standard of proof in determining the issue of risk. This was a case where the correct standard to be applied was the lower standard. That is not in dispute. Ms Lau made reference to a number of occasions within the FtT Decision where there is a reference to the Judge finding it “improbable” that a certain event would have occurred. She submitted that the word “improbable” effectively suggests the application of the civil standard of proof – that something is more probable than not. Mr Wain submitted that it is too big a jump to go from the mere use of the word “improbable” to a finding that that means the incorrect standard of proof was applied. He also referred to paragraph 16 of the FtT Decision where reference is made to the correct standard of proof.
13. Under the heading of “Conclusions” the FtT Judge does use the word “improbable” on three occasions. At paragraph 24 in relation to the issue of whether the appellant is of adverse interest to the Vietnamese authorities it is stated “I find on return it is improbable the authorities will be seeking him.” At paragraph 25 on the issue of whether he is at risk of being re-trafficked it is stated “I find it improbable that he would become destitute.” Further on in paragraph 25 on the issue of relocation it is stated “He could live in one of the main cities as he has done before on the chances of being pursued are improbable.”
14. The dictionary definition of improbable is “unlikely to be true or to happen” (Collins English Dictionary). I accept that that does suggest a standard based upon whether something is more or less likely to happen. That is closer in approach to the balance of probabilities than it is to lower standard of whether or not something is reasonably likely as set out in MAH (Egypt) -v- SSHD [2023] EWCA Civ 216 at paragraph 52. However, it is important to consider the whole decision. At paragraph 1 there is a reference to the case being “pre Nabba” which is an acknowledgement that different standards of proof will apply to some aspects. As Mr Wain pointed out at paragraph 16 the FtT set out the issues identified by the respondent and at paragraphs 16(ii) and 16(vii) and 16(viii) there is a reference to the standard of real risk. However, paragraph 16 is a reference to what the respondent stated rather than an express statement by the FtT Judge that the correct standard of proof was the lower standard. It is not clear on the face of the decision itself that the FtT has applied the correct standard of proof in determining the risk issues. Whilst it is not necessary to always set out clearly the legal issues in the case and the standard of proof that will apply – it is often helpful to do so. Unfortunately, that has not been done here – which then makes it difficult to have certainty as to the correct standard of proof applied. I am conscious that, per Ullah, one should not take too forensic an approach but in the absence of a clear statement as to the standard of proof and the repeated use of “improbable” in relation to key issues (risk on return from the Vietnamese authorities, risk in relation to re-trafficking and relocation) it is difficult to be certain that the correct standard of proof has been applied. I accept that the FtT Judge may have been using the word “improbable” in a more generalised sense – but in the absence of a clear statement as to the correct standard applied it is difficult to be certain as to the standard that was applied. In the circumstances I do consider that there is an error of law here in that it is not clear on the face of the decision that the correct standard of proof has been applied.
15. I uphold the First Ground of Appeal.
The Second Ground of Appeal
16. The Second Ground of Appeal was the failure to take account of, or give adequate reasons to explain the rejection of, evidence that the police in Vietnam were looking for the appellant. The appellant maintains there was evidence provided at the hearing that the appellant’s wife told him that since he left Vietnam the police had been to his house asking about him. In paragraph 22 of the FtT Decision there is a clear statement “He has not suggested the authorities were back at his home asking his wife about him.” It would appear that the lack of interest by the authorities is a factor in the FtT Judge coming to the conclusion that “it is improbable the authorities will be seeking him.” Ms Lau made reference to the oral evidence at the hearing (referenced in paragraph 3 of the Application for Permission to Appeal) where the appellant allegedly confirmed under questioning from the FtT Judge that when he talked to his wife she said the police were still looking for him to arrest him. I also note that in the appellant’s witness statement of 1 February 2024 at paragraph 55 there is a specific reference to his wife telling him that the authorities have continued to come to the house looking for him. Mr Wain submitted that it was implicit from the FtT Decision that the appellant was not believed and that evidence could have been obtained from his wife but was not.
17. I attach no weight to the excerpt of what was alleged to have been said at the hearing by the appellant under questioning from the FtT Judge. What has been produced is not a transcript from the hearing. However, it is clear that there was evidence before the FtT Judge in the appellant’s witness statement that his wife told him about the continuing interest from the authorities. It is then incorrect for the FtT Decision to state that the appellant has not suggested this. It may be that the evidence of the appellant in this regard was not treated as credible. It is hearsay evidence after all and may of course be open to the challenge of being self-serving. However, the FtT Decision does not address the evidence at all in the decision. There are no explicit findings as to whether the evidence provided by the appellant was credible or not. The continuing interest or lack of continuing interest of the authorities is in my view a key issue in determining whether there is a risk on return. I do consider that if the FtT Judge did not accept the evidence of the appellant in this area then there is a need to give reasons as to why that evidence has not been accepted. I accordingly do consider that it is an error of law not to deal with this key item of evidence in express terms.
18. I uphold the Second Ground of Appeal.
The Third Ground of Appeal
19. The Third Ground of Appeal is a similar point to the Second Ground of Appeal. This was an alleged failure to take account of, or give adequate reasons to explain the rejection of, evidence that the appellant was in debt to traffickers. At paragraph 25 of the FtT Decision there is a clear statement “There are no outstanding debts to the traffickers.” In his witness statement at paragraph 56 the appellant states that he owes the traffickers money. Ms Lau also referenced the excerpt from the hearing at paragraph 5 of the Application for Permission to Appeal where it is alleged the FtT Judge specifically asked the appellant if the trafficker got his money back – to which the answer was no.
20. This is an important issue in considering whether or not the appellant is at risk from the traffickers. Mr Wain submitted that again the appellant was simply not believed on this point and also drew my attention to paragraph 19 of the FtT Decision where it is noted that the respondent made a submission that the money owed to the traffickers had been repaid by working. It my well be the case that the credibility of the appellant was doubted on this point and the money has been repaid and as before I decline to attach any weight to the alleged excerpt from the hearing. However, the FtT Decision does not address this evidence directly and in the absence of any findings with regard to the credibility of the appellant’s evidence it is simply not clear on what basis the FtT came to the decision to reject that evidence or to find that there was no debt. It is a material issue and in my opinion it is an error of law not to set out reasons as to why the appellant’s evidence regarding debt has not been accepted.
21. I uphold the Third Ground of Appeal.
The Fourth Ground of Appeal
22. The Fourth Ground of Appeal is an alleged failure to consider the objective evidence in relation to the issue of state protection. The FtT Decision deals very shortly with the issue of state protection. At paragraph 28 of the FtT Decision there is the following:-
“The US State Department report on protection against trafficking refers to shortcomings on the part of the authorities. This of course will depend on a case by case basis and the evidence does not indicate there is no protection available. Fosters reference to no male shelters dependent will have the support of his parents and wife.”
It is difficult to understand exactly what is being said here. Ms Lau submitted that there was an inadequate consideration of the evidence and referred to the Country Policy and Information Note Vietnam: Trafficking Version 3 December 2023 which had been before the FtT. At paragraph 4.1.11 there is a statement “In order to access these government services victims must be in receipt of a victim’s certificate, which can be difficult to obtain if the government is of the opinion that the person was compliant in their illegal migration or if the victim returned of their own accord.” In her submission this evidence has not been considered by the FtT in the FtT Decision. Mr Wain submitted that there was no material issue here as state protection was not relevant to the outcome.
23. I agree with Mr Wain that given the FtT Decision was that there was no risk on return because the Vietnamese Authorities had no adverse interest in the appellant and there was no risk from the traffickers then the issue of state protection is not a relevant issue to the outcome of the case. Accordingly, I do not consider that the failure to deal more fully with the issue of state protection gives rise to any error of law. I would however note that the terms of paragraph 28 do leave me in some doubt as to what the finding on state protection was.
24. I do not uphold the Fourth Ground of Appeal.
Conclusion
25. For the reasons set out above I find that there are errors of law in respect of the First, Second and Third Grounds of Appeal. I find that these errors are material as they relate to key issues in the case, namely the establishment or otherwise of risk on return either from the Vietnamese Authorities or the Traffickers.
26. I discussed with the parties the appropriate further disposal of the case in the event that I upheld some or all of the Grounds of Appeal. Both agreed that if I found that there were inadequate reasons given that I should remit the case back to the FtT. I have considered whether it would be appropriate to retain the case before the Upper Tribunal but given my determination I do think the most appropriate course of action is to remit the case to be heard anew before the FtT, before a different Judge.
Notice of Decision
The decision of the FtT did involve the making of material errors on a point of law and the decision of the FtT is accordingly set aside.
The appeal is remitted to the FtT to be redecided at a hearing before a judge other than Judge Farrelly to determine the appellant’s asylum and humanitarian protection claims.
None of the findings from the FtT hearing, the subject of this appeal, are preserved.

S NEILSON

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

21.01.26