United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

A black background with a black square Description automatically generated with medium confidence

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI- 2024-003550
	First-tier Tribunal No: PA/57878/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 27 ^th of February 2025

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE ALIS

 

Between

 

LW

(ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

 

For the Appellant: Mr Forrest, Counsel

For the Respondent: Miss Cunha, Senior Home Office Presenting Officer

 

Heard at Field House on 25 February 2025

 

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, [the appellant] ( and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) 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/or other person). Failure to comply with this order could amount to a contempt of court .

DECISION AND REASONS

 

1.             The Appellant, a Chinese national aged 40 years of age, left China on 8 August 2017 and entered the United country on a visa on or around 20 August 2017. On 12 August 2020 she claimed asylum. Her claim was refused by the Respondent on 22 September 2023.

2.             The Appellant appealed this decision and her appeal came before Judge Gillespie (hereinafter referred to as the FTTJ) and in a decision promulgated on 8 May 2024 the FTTJ dismissed her appeal.

3.             Judge Chowdhury granted permission to appeal on 31 July 2024 finding it arguable there had been a material error because:

 

"Victims of trafficking should be treated as a vulnerable party as per Joint Presidential Guidance Note No. 2 of 2010 (see paragraph 15.2 of the IAC bench book). The judge at paragraph 7 said he was not told of any issue of vulnerability in the Appellant that would have required him to take such into account in managing the hearing. However, it is arguable that the judge ought to have done so in any event given the respondent's acceptance that the Appellant was a victim of trafficking.

 

Paragraph 1(i) submits that the judge failed to properly consider the expert report that loan sharks would loan such a considerable sum on an unsecured basis to a person who has never worked in China. Loan shark agreements are fundamentally different from legitimate commercial loans and by their nature are exploitative and coercive, often used as a tool of control and it is arguable that the judge ought not to have treated it as a lawful commercial agreement in this context. The expert had noted, as is recorded by the judge at paragraph 34, that a loan may well have been extended to her father in the Appellant's name but the Judge (arguably erroneously) regarded the loan shark agreement in the framework of a lawful commercial agreement and not against the country background evidence. The treatment of the expert's report is only just an arguable error of law.

 

The Appellant claims she had left China as a result of a loan shark agreement that she could no longer keep up interest payments on and that was why she and/or her father entered into agreement with Snakeheads who thereafter trafficked her to the UK. The claims are interlinked and directly related. It is arguable that the judge took an erroneous piecemeal approach to the Appellant's account in accepting (on a higher balance of probabilities test) the Respondent had made a finding the Appellant was a victim of human trafficking, arguably without robust reasoning, rejected the Appellant's account of why she had left China.

 

Permission is granted on all grounds."

 

4.             The representatives appeared remotely at the hearing via CVP.

 

SUBMISSIONS

 

5.             Mr Forrest submitted there were two material errors. Firstly, the FTTJ did not take into account the expert evidence and secondly, the FTTJ erred in relation to what the Appellant would have been doing post 2020.

 

6.             With regard to the first ground, Mr Forrest referred to paragraph [26] of the FTTJ's decision. The FTTJ said she did not believe the account because the loan shark would not advance money to a person who had no employment but this failed to take into account the expert evidence (paragraph 1.14) which suggested her account was consistent with the background evidence and it was further argued the FTTJ was wrong to compare loan sharks with a commercial lender.

 

7.             With regard to ground two Mr Forrest pointed out the Respondent accepted the Appellant had been re-trafficked in the UK. At paragraph [34] the FTTJ separately considered the risk of re-trafficking and the risk from loan sharks which was wrong because the two issues were linked. The FTTJ had ignored the expert evidence (paragraph 4.6) where the expert stated the Appellant was at risk of being re-trafficked as she had been trafficked here in UK. The finding at paragraph [35] was perverse.

 

8.             Miss Cunha relied on the Rule 24 response, dated 7 August 2024, and submitted the grounds were a mere disagreement and all findings made were open to the FTTJ. Miss Cunha referred in passing to the cases of QC (verification documents; Mibanga duty) [2021] UKUT 33 and MN and IXU [2020] EWCA Civ 1746.

 

9.             In terms of credibility Miss Cunha, referring to the headnote in QC, argued that before considering the expert evidence the FTTJ should have had regard to the credibility of the claim before engaging with the expert evidence.

 

10.         The FTTJ recorded at paragraph [14] of the decision that the Appellant claimed in her SI she took out the loan and how she was to repay it and the consequences of non-payment. Whereas in paragraph [15] the FTTJ recorded the Appellant had changed her account in her substantive interview. At paragraph [17] the FTTJ recorded she was introduced by her father to the loan shark and referenced what she said in her asylum interview. The expert stated the Appellant told him it was her father who borrowed the money and it was her father or nephew who invested the money. At paragraph [18] the FTTJ recorded what was said at the hearing which was inconsistent with what she said in SI and asylum interview. The adverse findings were not challenged in the grounds of appeal. As the Appellant's account about the money allegedly borrowed from the loan shark was wholly inconsistent this undermined the credibility of her account.

 

11.         Miss Cunha submitted this ground was are a mere disagreement with the FTTJ's findings and the FTTJ was entitled to depart from the view expressed by the expert.

 

12.         Miss Cunha referred to paragraphs 1.8-1.10 of the expert report. The FTTJ accepted there were loan sharks but rejected the Appellant's claim she was given a loan and found she was not a witness of truth. The expert said the loan sharks lend money to small businesses but FTTJ found the person borrowing had to have a source of income to repay it. The FTTJ questioned her account that it was secured against her when she was unemployed and her father operated a small business. Ultimately, the FTTJ was entitled to find her account was implausible.

 

13.         With regard to the second ground and the fact the Respondent had accepted she had been trafficked in this country did not mean her claim on re-trafficking must succeed. Her case was she had repaid the Chinese trafficker and consequently the risk of re-trafficking in China was non-existent.

 

14.         The FTTJ found her reasons for leaving China lacked credibility and it had been open to her provide evidence reasonably available to her to support her claim. She claimed she could not contact her family and whilst Mr Forrest argued the findings at paragraph [35] were perverse the FTTJ had considered all the evidence including the evidence at the hearing and that led to the finding the Appellant was not at risk of being re-trafficked and did not owe money to a loan shark. Miss Cunha submitted that the FTTJ was entitled to find she had paid her debt off so no risk of re-trafficking and having made that finding she was entitled to then look at the risk from the loan shark which she did at paragraph [35] of the decision.

 

DISCUSSION AND FINDINGS

 

15.         Having heard submissions from both parties I reserved my decision. For the reasons hereafter given I find there was no error in law.

 

16.         Whilst the grant of permission highlighted other areas Mr Forrest concentrated on what he perceived were errors in law.

 

17.         Mr Forrest's first ground concerned whether the FTTJ erred by making findings on credibility without considering what the expert report stated. In granting permission to appeal Judge Chowdhury concluded "the treatment of the expert's report is only just an arguable error of law." Mr Forrest argued that by making credibility findings first (see paragraphs [26] to [32]) and then considering the report in paragraph [33] and [34] the FTTJ erred. Miss Cunha argued that the court made clear in QC

 

"the judicial fact-finder has a duty to make his or her decision by reference to all the relevant evidence and needs to show in their decision that they have done so. The actual way in which the fact-finder goes about this task is a matter for them. As has been pointed out, one has to start somewhere. At the end of the day, what matters is whether the decision contains legally adequate reasons for the outcome. The greater the apparent cogency and relevance of a particular piece of evidence, the greater is the need for the judicial fact-finder to show that they have had due regard to that evidence; and, if the fact-finder's overall conclusion is contrary to the apparent thrust of that evidence, the greater is the need to explain why that evidence has not brought about a different outcome."

 

18.         The FTTJ did not ignore the expert evidence when assessing credibility. The Court of Appeal in QC found the FTTJ must start somewhere and in this particular case the FTTJ's assessment of the evidence commenced at paragraph [23] of the decision. Hearing the Appellant give live evidence enabled the FTTJ to form "a view as to the credibility of her claims.". At paragraph [24] the FTTJ referred for the first time to the expert evidence and this was before any findings were made. The FTTJ then set out between paragraphs [26] to [32] findings about the evidence given by the Appellant.

 

19.         The FTTJ then considered the expert evidence and noted the expert provided a view based on the Appellant's account as being a potential victim of the alleged loan extended to her father. The FTTJ in paragraph [34] made clear this evidence was considered but concluded the factors in the report did not detract from the issues that had been highlighted earlier in the decision. It is only at paragraph [36] that the FTTJ made a finding that the Appellant had not borrowed money a Loan shark in China. The approach adopted by the FTTJ does not seem at odds with what the Court of Appeal recommended in QC. I find no error of law on the first ground.

 

20.         Turning to the second ground and whether the FTTJ erred by deciding the risk of re-trafficking separately to the risk from a loan shark I note at paragraph [37] the FTTJ began the assessment with the words " as the appellant claims to fear persecution from non-state actors in the form of the loan sharks I consider whether she could in any event safely and reasonably relocate" which pointed to the fact the FTTJ did consider the two matters at the same time albeit the FTTJ made some findings on risk of re-trafficking earlier in the decision at paragraph [35].

 

21.         For the reasons given by the FTTJ there was a finding any exploitative arrangement ended in 2020. The FTTJ also had made findings that she had given inconsistent evidence about events in China and whether that debt had been repaid and whose debt it was. Ultimately the FTTJ rejected any claim circa the alleged debt and the only finding on trafficking related to what happened in the United Kingdom as against trafficking by loan sharks from her home area.

 

22.         The FTTJ considered pertinent issues relating to trafficking and in doing so considered the expert's report and the account advanced by the Appellant. The expert concluded at paragraph 4.3 she was at risk of being re-trafficked but that opinion was based on an acceptance that all her claims were credible which was not what the FTTJ had found.

 

23.         As that account was rejected the FTTJ was entitled to disregard the finding in the report she was at risk of being re-trafficked as the only accepted trafficking was in this country and the concerns highlighted in the expert report were not of relevance. The finding that the risk was reduced was therefore a finding open to the FTTJ.

 

24.         Having considered both grounds advanced by Mr Forrest I find there is no material error in law.

Notice of Decision

 

There was no material error in law and the decision of Judge Gillespie shall stand.

 

 

SP ALIS

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

26/2/2025