Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-004646
First-tier Tribunal No: PA/65318/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 18th of March 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE RICHARDS

Between

TN
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D. Cox, Counsel
For the Respondent: Mr A. Tan, Senior Home Department Presenting Officer

Heard at Field House on 4 March 2026

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

Introduction and background
1. NT (“the Appellant”) is appealing with permission the decision of the First-tier Tribunal promulgated on 22 August 2025 to reject his appeal against the decision of the Respondent dated 1 November 2023 refusing his claim for asylum and humanitarian protection made on 2 May 2022.
2. I note that an anonymity order was made by UTJ Bulpitt on 18 November 2025 when granting permission to appeal, and that the Appellant has made an asylum application and I continue the anonymity order in this case. In doing so I have had regard to Guidance Note 2022 No.2: Anonymity Orders and Hearings in Private and Kambadzi v SSHD [2011] UKSC 23. I have considered the strong public interest in open justice. Nonetheless, in this case it is outweighed by the United Kingdom’s obligations towards an applicant for international protection.
3. The Appellant is a citizen of Vietnam and claims that he fears persecution from the Vietnamese authorities due to his in-country and sur place activities, and is at risk of re-trafficking and also at risk from loan sharks. The issues in dispute before the First-tier Tribunal were essentially whether the Appellant had come to the adverse attention of the Vietnamese authorities; whether he had been subject to human trafficking; whether he was a risk of persecution from the Vietnamese authorities on the basis of his political opinion or on account of him being a victim of human trafficking; and whether there are any insurmountable obstacles to his reintegration in Vietnam.
4. Both parties were represented before the First-tier Tribunal and the Appellant gave oral evidence with the assistance of a Vietnamese interpreter.
5. The First-tier Tribunal Judge (“the Judge”) found that the Appellant and his claim are not credible, and that he does not have a genuine well-founded fear of persecution if returned to Vietnam. The Judge found that the Appellant is not at risk due to his in-country or sur place activities from the police, loan sharks or human traffickers. The Judge proceeded to refuse the Appellant’s appeal on all of the asylum, humanitarian protection, and human rights grounds.
6. The Appellant applied for permission to appeal and on 21 September 2025, a different First-tier Tribunal Judge from the one who made the substantive decision refused permission.
7. The Appellant renewed his application for permission to appeal at the Upper Tribunal and on 18 November 2025 UTJ Bulpitt granted permission highlighting that Ground 1 was arguable, but not restricting permission.
8. The case came before me on 4 March 2026 and proceeded by way of CVP video hearing. Both parties did not have access to the same bundle, and the legal representatives for the Appellant are reminded of the importance of complying with all of the Upper Tribunal rules regarding bundles and service. However both parties agreed that they had access to all of the necessary papers for the purpose of this error of law hearing.
9. The papers do contain a Rule 15 application for the Upper Tribunal to accept extra evidence consisting of a video. However the video has not been lodged with the Upper Tribunal and Mr Cox confirmed that he was abandoning the Rule 15 application for the purposes of this error of law hearing.
10. Following submissions from both sides I announced that I would reserve my decision, which I am delivering now.
Grounds of appeal
11. Ground 1 is that the Judge erred in his finding that the Appellant had “made a conscious decision not to rely upon the video” [2.20].
12. Ground 2 is that the Judge made errors in his assessment of the Appellant’s screening interview. Specifically it is argued that the Judge made findings that were not open to him as to the manner in which the screening interview took place, and that the Judge erroneously relied on his own perception of the audible distinction between “man” and “woman” in Vietnamese.
13. Ground 4 is that the Judge had regard to an irrelevant consideration, that being the failure to produce the summons from 20 or 21 June 2016.
14. Grounds 3 and 5 were abandoned by Mr Cox towards the outset of the hearing.
Submissions
15. The submissions are recorded in full in the audio recording of the hearing and so are not repeated in full here.
16. In brief, Mr Cox asked me to rely on his written skeleton argument and expanded on this in his submissions. He submitted that if an error of law is found in relation to either Ground 1 or 4 the case should be remitted to the First-tier Tribunal, and if an error of law is only found in relation to Ground 2 he was unable to say definitively without knowing my findings which venue he thinks a remaking should take place in.
17. In brief, Mr Tan maintained the Respondent’s opposition to the appeal. He submitted that if an error of law is found, he was unable to say definitively without knowing my findings which venue he thinks a remaking should take place in.
Error of law
Ground 1
18. The relevant paragraph that is complained about in this Ground is the first of the two paragraphs numbered 2.20 in the First-tier Tribunal’s decision. This says:
“In his same statement and later statement he asserted that his wife has told him that the police have been to their home several times asking about his whereabouts and threatening her with arrest. He claims that the police went to his father’s house on 25 October 2024. He claims his wife filmed this and when neighbours challenged the police they left. TN has produced still images which purport to have been taken from the video provided by his wife. TN has the video. I asked him why it was not relied upon at his appeal. He said he had given it to his solicitor. Miss Travers told me that this was not the case. She told me that she was aware that TN had the video, but she said that she advised him that only stills from the video were required. Miss Travers has not viewed the video and did not ask TN to see it. Very clearly, best evidence in this regard would have been the video itself and not still images, which the Respondent does not accept are what they are claimed to be. Video evidence would provide more persuasive evidence in terms of what the police were doing, where they were, and what was said. According to TN, the police explained to his wife and father the purpose of their search. Unless the recording device had no sound function, which was not part of TN’s evidence or part of Miss Travers’s explanation, such an explanation would have been recorded on the device or at least the general purpose for police attendance would have been discernible. Even taking into account the giving of advice by Miss Travers, video evidence of this kind must always be more valuable than still images, and I conclude that TN made a conscious decision not to rely upon the video, and logic suggest that the most likely reason for withholding it, is that it does not support his claim as he suggest.”
19. Of importance in this paragraph are the reason why the video was not produced and the conclusion drawn by the Judge. The Appellant’s Representative told the Judge that she advised the Appellant that only stills from the video were required and did not ask the Appellant to provide her with the video. The Judge made an adverse finding against the Appellant for the lack of this video being in the evidence before him concluding that the Appellant “made a conscious decision not to rely upon the video, and logic suggest that the most likely reason for withholding it, is that it does not support his claim as he suggest.”
20. I accept that it was open to the Judge to find that the video would provide a better quality of evidence than merely stills from that video. However I find that the Judge’s conclusion as highlighted above in [19] is not sustainable and is in error.
21. The Judge records that the Appellant was advised by his legal representative that only stills were required from the video. It was not open to the Judge for him to conclude that the Appellant made a conscious decision not to rely upon the video since the evidence and submissions recorded in [2.20] are at odds with this, and I find there was no evidential basis before the Judge for them to have made such a finding.
22. It may well be that the Appellant was poorly advised by his Representative in relation to the video, however this is not a valid basis for a finding that the Appellant himself has made a conscious decision not to rely on it likely because it does not support his case.
23. The Appellant and their Representative could have applied for an adjournment at the First-tier Tribunal hearing in order to produce the video, however at the time of the hearing they did not know what the Judge’s findings were going to be in relation to its non-production. As such the Appellant did not have sufficient notice of such findings in relation to the video in order to have had adequate informed opportunity to apply for an adjournment to file and serve the video.
24. I find that this amounts to a procedural error and a breach of natural fairness.
25. In relation to materiality, I further note that it is the Appellant’s case that the video shows members of the Vietnamese police in a family member’s home looking for the Appellant, a number of years after he left Vietnam. I find that this evidence is potentially material to the overall consideration of the credibility of the Appellant’s case and any risk he may face upon return to Vietnam.
26. I am not persuaded by the argument put forward by Mr Tan that the burden of proof is on the Appellant and as the video has not been relied on by the Appellant, the Judge can’t make findings on it. Whilst it is correct that the burden of proof is on the Appellant who was legally represented and did not submit the video, I have found that it was not open to the Judge to go further than making conclusions on the stills that were in evidence, when he made the adverse findings that he did.
27. Mr Tan also submitted that [16] of TK (Burundi) 2009 EWCA Civ 40 applies. This states that:
“Where evidence to support an account given by a party is or should readily be available, a Judge is, in my view, plainly entitled to take into account the failure to provide that evidence and any explanations for that failure. This may be a factor of considerable weight in relation to credibility where there are doubts about the credibility of a party for other reasons. I accept, as did the Judge, that Miss Mutoni, his first partner, might well have been reluctant to help, but there was no evidence that any attempt had been made to seek her help in circumstances where her failure to help would result in serious financial disadvantage to the support to her child, and no evidence as to the payments alleged to have been made. Nor in my view can Immigration Judge Scobie in any way be criticised for his rejection of the appellant’s account of why he had not sought evidence from his current partner, Miss Ndagire. In my view the approach of the Judge on the evidence before him was an approach he was entitled to take in assessing the appellant’s credibility; there was no error of law. On that evidence, he was entitled to reach the view that the family life was not as strong as the appellant claimed or in other words not strong at all. He was therefore entitled to come to the conclusion he demonstrably arrived at with great care, that the balance under Article 8 came down in favour of the appellant being returned to Burundi. In my judgment, there was no error of law and this ground of appeal fails.”
28. I find that TK (Burundi) does not substantially assist Mr Tan’s argument as I accept that the Judge was entitled into take into account the failure to provide the video and the explanation for that non-provision, however I find that the Judge has done so erroneously making findings that were not open to him.
29. As such I find that Ground 1 constitutes a material error of law, and that error contains a procedural unfairness.
Grounds 2 and 4
30. Having made the decision I have on Ground 1, I need not make findings in relation to Grounds 2 and 4.
Disposal
31. I have taken account of [7.2] of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal and the submissions of both parties, and find that due the lack of fairness in the First-tier Tribunal hearing, nothing in the decision of 22 August 2025 will be preserved and the case will be remitted to be re-heard by the First-tier Tribunal by a different Judge.
32. Nothing in this decision should be taken as an indication of whether or not the Appellant’s appeal will ultimately succeed or not. That is a matter now for the rehearing at the First-tier Tribunal.

Notice of Decision
The decision of the First-tier Tribunal promulgated on 22 August 2025 involved the making of a material error on a point of law.
The decision of the First-tier Tribunal is set aside and this case is remitted to the First-tier Tribunal for remaking by a different Judge to the person who made the decision on 22 August 2025. No findings are preserved.

Judge Richards

Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 March 2026