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

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-003615
	First-tier Tribunal No: PA/01289/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 18 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE NEVILLE

 

Between

 

H T

(ANONYMITY ORDER MADE)

Appellant

and

 

Secretary of State for the Home Department

Respondent

Representation :

For the Appellant: Mr K Pullinger, instructed by Saxon Solicitors

For the Respondent: Ms S Rushforth, Senior Home Office Presenting Officer

 

Heard at Field House on 28 October 2024

 

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 is a 26 year old Vietnamese national who entered the United Kingdom as a student in early 2020. After his leave expired at the beginning of 2021, he remained in the UK to, he claims, continue working at the compulsion of a Vietnamese criminal gang that had financed his studies here. Following his arrest in connection with cannabis farming, he made a claim for protection which was refused on 18 September 2023. The appeal against that decision was decided by First-tier Tribunal Judge Holt ("the Judge") on 11 January 2024. The Judge summarised the nature of the claim as follows:

7. In general terms, the appellant's claim translates to a claim that he was the innocent victim of trafficking/modern slavery. He claims that he did not know anything of the situation he found himself until he arrived at Heathrow Airport shortly before the start of his university course and when he was met by a shady character, [L], taken to a car and anaesthetised/drugged. [L] is impliedly linked to the organisation/criminal gang. The appellant was also given a "burner" phone in intimidating circumstances. Later, after he had been allowed to study for a while, the appellant was given instructions that he was to work for the organisation on various jobs/tasks. (The jobs/tasks continued after he had finished his studies). The appellant claims, in effect, that he personally was in a situation of vulnerability, and also that his parents back in Vietnam were vulnerable to the extortion and violence by the organisation who, the appellant claims, turned out to be violent criminals. By the time of the appeal hearing, the appellant additionally claimed that he had good reason to believe that the organisation/criminal gang were said to have links with the Vietnamese state authorities. At the appeal hearing the appellant submitted that he was at risk, not only due to the organisation/gang, but also from corrupt state officials.

2.             The Judge goes on to record the appellant's claim that on one occasion when he refused to do a particular piece of work for the gang, it responded by having his mother in Vietnam beaten. Now that he is separated from them entirely, his parents are facing concocted criminal charges as part of the gang's reprisals. He cannot contact them at all, and hopes that they are simply in hiding and have not suffered any worse fate.

3.             The Judge disbelieved all of this, and dismissed the appeal. The grounds of appeal to the Upper Tribunal are lengthy, but were well summarised by FtT Judge Hughes when he granted permission:

2. Ground 1 contends that the Judge failed to provide adequate reasons for rejecting the core of the appellant's claim. There is arguably some force in this ground; notably, the Judge failed to consider the very recently published CPIN Vietnam: Trafficking version 5.0 December 2023, attached undue weight to the late service of the Vietnamese police documents and the absence of their verification by the respondent, and made findings adverse to the appellant (at [28]xiii) on matters that were not put to the appellant.

3. As to Ground 2, the Judge's approach in rejecting the Vietnamese documents was arguably flawed, having already reached an adverse conclusion as the credibility of the appellant's claim and then relying upon that conclusion to reject the reliability of the documents.

4.             At the hearing of the appeal, I heard detailed and helpful submissions from the representatives, but shall only repeat them where necessary to explain my conclusions. I approach the appeal bearing in mind the relevant principles where findings of fact are challenged, as set out in in Volpi v Volpi [2022] EWCA Civ 464 at [2]:

i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.

ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.

iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.

iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.

v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.

5.             I need only consider Ground 1. Mr Pullinger moved the three asserted errors of law summarised in the grant of permission.

6.             The grounds first argue that the Judge erred by relying on an outdated version of the relevant Country Police & Information Note. This is not quite correct. The Judge refers at [27] to the Fear of illegal moneylenders, January 2023 CPIN which is still extant. The later document now cited in the grounds is a different CPIN, Trafficking, December 2023, which was updated to that version just four days before the hearing in the First-tier Tribunal. Nonetheless, the appellant's claim engaged the subject matter of the Trafficking CPIN as a matter of some obviousness. As argued in the grounds, parts of it provide potential corroboration for the appellant's account:

9.1.2 [...] While the majority of trafficking victims are poor and uneducated, a recent trend of trafficking of educated young students or recent graduates from more middle-class backgrounds has been observed.

9.2.4 The National Crime Agency's (NCA) report on 'The Impact of Vietnamese Organised Immigration Crime and Modern Slavery and Human Trafficking on the UK' noted that:

'...It is almost certain that the majority of Vietnamese irregular migration to the UK, including that which results in exploitation, is facilitated by OIC [organised immigration crime] groups and offenders. Migrants travelling to the UK are also vulnerable to exploitation en route to the UK.

'Evidence recorded between 2019 and 2022 has shown that Vietnamese irregular migrants are at risk of exploitation and other harms both en-route to and on arrival in the UK. It is highly likely that the greatest risk of physical harm to Vietnamese irregular migrants and victims of trafficking is in transit to the UK.

'... Many Vietnamese migrants are highly likely to work in exploitative conditions, and some will be in situations of slavery and trafficking. This can include the use of debt bondage to repay agreed travel costs for transit to the UK, and it is highly likely that artificial inflation of this debt is the most significant defining factor in the exploitation of Vietnamese irregular migrants. It is almost certain that victims of MSHT [modern slavery and human trafficking] do not constitute the majority of the workforce in sectors or activities in which Vietnamese migrants are commonly identified.

7.             The following paragraphs of the CPIN are to the same effect. There are, it must be said, some parts of the CPIN that do not sit so well with the appellant's account, but a fair decision depended on all the relevant evidence being considered with anxious scrutiny.

8.             Ms Rushforth quite rightly pointed out that the appellant's representatives, including counsel at the hearing (not Mr Pullinger) did not appear to have ever referred the Judge to the existence of a Trafficking CPIN. The duty to do so lay on both parties however, according to their duty to assist the Tribunal in achieving the overriding objective to the Procedure Rules and, in relation to the respondent, as described by Irwin LJ in UB (Sri Lanka) v SSHD [2017] EWCA Civ 85

16. In my view there was the clearest obligation on the Secretary of State to serve relevant material and ensure it was before the Tribunals at both levels. In AA (Afghanistan) v SSHD [2007] EWCA Civ 12, Keene LJ made the point clear beyond doubt:

"27. [It was submitted by the appellant that] the attention of the adjudicator should have been drawn by the Secretary of State's representative to the policy on interviewing unaccompanied minors, so as to avoid him being misled: see R v. Special Adjudicator, ex parte Kerrouche [1997] Imm AR 610.

28. As a matter of law, that is right. The Secretary of State should draw relevant parts of his policy to the adjudicator's attention. Merely because those policy documents are publicly available in print or on a website is not enough: where issues of risk of persecution are involved, a decision to return a person or not to his country of origin should not depend on the diligence of that person's representatives."

17. The point was reinforced by Lord Wilson in Mandalia v SSHD [2015] 1 WLR 4546 [2015] UKSC 59. Lord Wilson referred to the judgment of Keene LJ in AA (Afghanistan) and re-emphasised the obligation:

"irrespective of whether the specialist judge might reasonably be expected himself to have been aware of it, the Home Office presenting officer clearly failed to discharge his duty to draw it to the tribunal's attention as policy of the agency which was at least arguably relevant to Mr Mandalia's appeal." (paragraph 19)

9.             The failure described in that case also occurred here, and the Judge ought to have been referred to the Trafficking CPIN. Given the reliance the Judge placed on the Fear of moneylenders CPIN as providing background evidence for her assessment, the content of the Trafficking CPIN may have materially altered the outcome.

10.         The criticism of the Judge's approach to verification of documents is also well-founded. The Judge had observed that the appellant's evidence, including documents relating to the prosecution of his parents, had been provided well after the deadline directed by the Tribunal had expired. She held that:

I find that the late production of the purported Vietnamese police documents probably explains why the respondent has not had them verified (although in the interests of fairness, I also record that [the presenting officer] did not explicitly say this at the appeal hearing). The late service of these documents without explanation undermined the credibility of the appellant's claims, especially given the seriousness of his allegations.

11.         The parenthetical observation in the above extract does not prevent the Judge later rejecting the reliability of the documents partly because of their lateness nor, as is plain elsewhere, treating this as a significant adverse indicator of credibility. While recognising that the FtT is an expert tribunal, I respectfully consider that the Judge's conclusion was not properly open to her. As conceded by Ms Rushforth, the respondent does not routinely verify documents in protection claims, and there is no likelihood that she would ever have done so here had the evidence been provided sooner. If there had been such a proposal, the presenting officer would have raised it. The Judge's reliance on the issue was therefore misplaced. It further constituted procedural unfairness of the type discussed in Abdi v Entry Clearance Officer [2023] EWCA Civ 1455 at [33], the point never having been canvassed with the representatives. Opportunistic late filing of evidence to avoid scrutiny of evidence certainly can damage credibility, but whether it should in this particular case ought to have first been put to the parties for comment.

12.         The failure to put adverse matters to the appellant for comment forms the third error pursued under this heading. At [28(vii)], the Judge had expressed scepticism that the appellant could work part-time on criminal activities while keeping up with his studies, exams and so on. This paragraph expresses the type of assumption deprecated in cases such as HK v SSHD [2006] EWCA Civ 1037, and introduces a later observation:

(ix) It also does not make any sense, as well as studying, and being at the beck and call of the violent and frightening organisation, that the appellant should have the confidence to use his spare time and the opportunity of being in the UK to start a Facebook-based mobile phone business. I do not speculate about this detail and note that it was not really part of questioning at the hearing before me. However, if anything, it pointed to the appellant choosing to engage in unlawful activity without being under any compulsion whatsoever.

13.         If the Judge did not wish to speculate about the issue, and was mindful that the appellant had not been asked about it, then perhaps it ought not to have been mentioned at all. It is clear that the Judge did nonetheless treat this as a material adverse indicator of credibility, from both the overall structure of the decision and this sub-paragraph falling within a list of reasons why the appellant's case "lacked credibility" and contained "unexplained inconsistencies". Again, reliance on this adverse indicator was procedurally unfair.

14.         Ms Rushforth was right to point out all the sustainable adverse indicators of credibility upon which the Judge reached her final conclusion. But the errors identified above are sufficiently significant to give rise to a real possibility that in their absence the final outcome might have been different.

Disposal

15.         I need not consider Ground 2. The decision is set aside in its entirety; no findings can usefully be preserved given the requirement for all evidence to be considered in the round. In light of the scale of fact-finding required when the matter is re-heard, and the appellant not yet having had a fair first-instance consideration of his appeal, the proper course is for the case to be remitted to the First-tier Tribunal for re-hearing.

Notice of Decision

(i)                  The decision of the First-tier Tribunal involved the making of an error of law and is set aside.

(ii)               The case is remitted to the First-tier Tribunal for re-hearing with no facts preserved, to be heard by any judge other than Judge Holt.

 

J Neville

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

17 February 2025