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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-004290
	First-tier Tribunal No: PA/01550/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 27 ^th of March 2025

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE MOXON

 

Between

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

NN

(ANONYMITY ORDER MADE)

 

Respondent

Representation :

For the Appellant: Mr Thompson, Senior Home Office Presenting Officer

For the Respondent: Ms Coen, Counsel

 

Heard at Phoenix House (Bradford) via CVP on 17 March 2025

 

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

1.       The SSHD appeals, with permission, a decision of a Judge of the First-tier Tribunal ('the Judge'), dated 10 ^th July 2024, which allowed NN's appeal against the SSHD's decision to refuse his claim for asylum.

2.       I shall refer to the parties as they appeared before the First-tier Tribunal.

Background

3.       The Appellant is a national of Vietnam, born in 1998. He entered the United Kingdom on 7 ^th March 2022 and claimed asylum on that day.

4.       The substance of the claim was summarised by the Judge at paragraph 4 of her determination:

"The Appellant claims that he borrowed money from lenders in Vietnam to pay for his grandmother's medical expenses. When he was unable to repay the loan, his land was taken from him. This was not sufficient to meet the debt. He was then kidnapped and forced to work in China. He was then taken to France where he was able to escape. The Appellant has received a positive determination from the NRM. The Appellant cannot return to Vietnam. He will be located by his traffickers and will be killed following his escape. He also still owes money for the loan. The Appellant cannot seek protection nor can he internally relocate."

5.       The claim was refused by the Respondent on 29 ^th September 2023. His narrative account was rejected and, in any event, it was concluded that he could access protection in Vietnam and internally relocate.

6.       The appeal against that decision was heard by the Judge on 8 ^th July 2024. The Appellant attended and gave evidence.

7.       At paragraph 30 of her determination, the Judge concluded the following:

"Overall, I find to the lower standard that the Appellant took out loans with illegal money lenders which he could not repay. I accept that the Appellant sought protection from the police but without success. He was taken by the lenders or those associated with them and made to work in China. The Appellant escaped in France and travelled on his own steam to the UK where he was further exploited."

8.       She concluded that there would be insufficient protection within the Appellant's home area of Vietnam, stating, at paragraph 31:

"... I find that the Appellant cannot return to his home area as he is known to the illegal money lenders and has outstanding debts. It is plausible that the Appellant will be found in the area in which he was last known to reside. The Appellant cannot seek protection from the police in his home area, noting his evidence that they have failed to act upon the Appellant's reports in the past. The Appellant has been the subject to persecution in the past in his home area by the money lenders which as per 399K of the Immigration Rules, can be considered a serious indication of the Appellant's wellfounded fear of persecution on return, given nothing in the Appellant's circumstances have changed."

9.       In relation to the Appellant's claim that he could not internally relocate due to the links that the traffickers and money lenders have across Vietnam, she concluded, at paragraph 33, that ".. I do not find that the evidence bears this claim out..."

10.   However, the Judge nevertheless concluded that internal relocation would not be reasonable as the Appellant has no access to family support and would not be able to obtain other forms of support given his subjective fear of being located by the money lenders.

11.   The Judge did not consider whether the Appellant would be at risk of re-trafficking, stating, at paragraph 39:

"Given my findings above, I have not gone on to consider the other aspect of this case, namely whether the Appellant would be vulnerable to re-trafficking or whether treatment of the Appellant by society as a victim of trafficking would in general terms amount to persecution."

12.   Permission to appeal was granted by a First-tier Tribunal Judge within an undated grant which stated:

" 2. The grounds state that the judge erred in that they: (1) Failed to take into account and/or resolve conflicts of fact or opinion on material matters & Making a material misdirection of law on any material matter. (2) Failed to give reasons or any adequate reasons for findings on material matters.

3. Within these two headings the grounds set out issues including that the judge failed to deal with significant issues and relied on caselaw which was of only limited relevance. The grounds disclose an arguable error of law and permission is granted."

The hearing

13.   The papers were contained within a 340-page bundle which I was assured contained all the documents. The advocates relied upon the written grounds of appeal and the rule 24 response.

14.   In oral submissions, Mr Thompson argued that the Judge was in error in finding that the Appellant could not internally relocate solely due to his subjective fear. He maintained that the Judge had erred in not making a finding as to whether the Appellant was at risk of re-trafficking and whether being a debtor makes him a member of a particular social group.

15.   In response, Ms Coen argued that membership of a particular social group had never been put in issue by the Respondent and that the Home Office CPIN accepts that victims of trafficking do fall into that category of the Convention. The Judge did not need to assess whether the Appellant was at risk of re-trafficking as she had otherwise concluded that he was at risk of persecution. The Judge's assessment of the reasonableness of relocation was sufficient and upon consideration of the appropriate legal test.

Discussion and analysis

16.   Throughout consideration of the appeal, I have had regard to the guidance provided by the Court of Appeal in Volpi v Volpi [2022] EWCA Civ 462 at paragraph 2:

" The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled:

                                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.

                            vi.             Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract ."

17.   Ground 1 of the grounds of appeal is titled: ' Failing to take into account and/or resolve conflicts of fact or opinion on material matters & Making a material misdirection of law on any material matter '.

18.   This ground is split into three parts.

19.   Part (a) argues:

" It is respectfully submitted that the FTTJ's decision to not consider and resolve the appellant's risk of being re-trafficked and whether any persecutory treatment from Vietnamese society for being a victim of trafficking [39] is misguided and undermines the very decision to allow this appeal under the Refugee Convention, which amounts to a material misdirection of law."

20.   That should be considered together with part (b), which argues:

" Although Ground 2 will challenge the adequacy of the FTTJ's findings to allow this appeal for asylum in further detail, it is submitted that it is incumbent on the Tribunal to resolve all material matters that a claim is based on. This is particularly relevant in this appeal, as the appellant's ability to relocate and his subjective fear of being located by the illegal money lenders is dependent on the premise that he would be subjected to re-trafficking. According to the appellant's own narrative, he was kidnapped and trafficked to China and then France [4] and so this is the persecutory treatment he relies on.

21.   A First-tier Tribunal Judge is not required to make a finding on every disputed issue if it is not necessary to do so. The Judge made clear findings that the Appellant was a debtor to illegal money lenders; had been subject to physical violence; had been denied protection by the Vietnamese authorities; had been trafficked by those money lenders or people associated with them; could not safely return to his home area for fear of those that had mistreated him; and could not reasonably relocate as he would not access support. Those findings led to a conclusion that the Appellant satisfied the relevant test for asylum. As such, the Judge was not required to consider other reasons why he may satisfy the test.

22.   In Budhathoki (reasons for decision) [2014] UKUT 341 (IAC) it was held, at paragraph 14:

" It is generally unnecessary and unhelpful for the First-tier Tribunal judgments to rehearse every detail or issue raised in a case. This leads to judgments becoming overly long and confused and is not a proportionate approach to deciding cases. It is, however, necessary for judges to identify and resolve key conflicts in the evidence and explain in clear and brief terms their reasons, so that the parties can understand why they have won or lost."

23.   As such, provided that the reasons for allowing the appeal are not infected by a material error of law, the lack of consideration of other potential grounds for asylum does not affect the validity of decision.

24.   Part (c) argues:

" There is no acceptance that individuals who owe money to illegal lenders come within a particular social group and/or will be treated differently by Vietnamese society and so the basis of the FTTJ's decision to allow this appeal cannot be anything but flawed, as it fails to resolve whether the appellant is a member of a particular social group who is at risk of being re-trafficked and therefore constitutes a material error of law."

25.   The Home Office has published Country Policy Information Notes in relation to fear of illegal money lenders in Vietnam (January 2023) and victims of trafficking in Vietnam (December 2023). The Notes conclude that the former does not form a member of a particular social group but that the latter does. It has not been argued before me that the Respondent sought in this case to resile from her own guidance in relation to victims of trafficking.

26.   The grounds of appeal are misconceived as they proceed on the basis that being a debtor to money lenders and being a victim of trafficking were two distinct and separate elements of the Appellant's narrative, when in fact the Judge concluded, at paragraph 29 that "It is reasonable to conclude, noting the Appellant's claim of previous threats, that the kidnap and trafficking was linked to the outstanding loan" and at paragraph 30, above, that the Appellant "... was taken by the lenders or those associated with them and made to work in China" . She outlined, at paragraph 24, the " interplay" between illegal lenders and traffickers:

"I am also referred by Ms Coen to the [January 2023] CPIN which notes the interplay between the illegal money lenders and trafficking. A whole section at 4.6 is dedicated to this very issue which also refers the reader to the CPIN on trafficking. Whilst the evidence states that ' criminal groups involved in human-trafficking and human-smuggling operations are known to provide financial services, or 'shark loans', to victims ' , it is plausible that the reverse is also true, noting the links between the two types of organisations. It is plausible that those who owe money are provided to traffickers."

27.   As such, the Judge was not required to determine whether the Appellant was a member of a particular social group solely on account of being a debtor. To do so would be to fall into error as it would fail to acknowledge the totality of his circumstances: that he was a debtor who had been trafficked by the money lenders, to whom he owed money, or their associates.

28.   The Judge did not need to expressly specify that in those circumstances the Appellant was a member of a particular social group as it is the Respondent's own policy that this is the case, as detailed in the CPIN concerning victims of trafficking in Vietnam.

29.   Further, the Respondent did not raise membership of a particular social group as a contested issue to be determined during the hearing before the Judge. It was not identified within the Refusal. There was no Respondent Review. The Judge was only required to preside over the matters in dispute.

30.   I am satisfied, having read the determination as a whole, together with the list of issues that were identified within the Refusal and the contents of the CPIN that was before the Judge, that she proceeded upon the basis that the Appellant was a member of a particular social group. She was correct to do so in all of the circumstances.

31.   For the reasons outlined above, I reject the argument that the Judge failed to take into account and / or resolve conflicts of fact or opinion on material matters. I also reject the argument that she misdirected herself. As such, ground one is dismissed.

32.   Ground 2 of the grounds of appeal is titled: ' Failing to give reasons or any adequate reasons for findings on material matters':

" a) It is respectfully submitted that the FTTJ's finding that the appellant has a 'well-founded' fear of persecution has not been adequately reasoned, as this is based on the appellant's subjective fear and not supported by the available country evidence/information. Furthermore, it is submitted that the FTTJ's finding that the appellant cannot be expected to relocate and register in a new area is materially flawed, as they have misapplied the findings of the case law relied on, which overall amounts to a material misdirection of law in allowing this appeal under the Refugee Convention.

b) The FTTJ's believes that the appellant cannot be expected to register in another area of Vietnam because he fears he will be located by the illegal money lenders [34], but this ignores their previous finding that these individuals have no power or influence outside of the appellant's home area [32]. There is no evidence that the illegal money lenders have any ongoing interest in the appellant or even continue to exist in the country. They are not an established institution, such as the authorities or even a paramilitary group, so the belief that the appellant registering in another part of the country would come to their attention amounts to mere speculation that does not even satisfy the lower standard of proof.

c) The FTTJ's reliance on the case of 'Sivaplan' [34] (I believe Sivapalan & Anor, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 2955) is also misguided. The facts of that case are distinct from the appellant's claim for reasons such as he fears non-State actors, whereas Sivapalan and her sibling fear the authorities as a distinct ethnic group (Tamils) with an imputed political opinion. There is also the observable difference between the authorities of Vietnam and Sri Lanka, not to mention their respective societies and cultures. Therefore, the concept of the individuals in Sivapalan living in 'constant fear' is significantly different to the circumstances the appellant would be returning to and does not support his claim or the FTTJ's finding that his fear is well-founded.

d) The SSHD continues to dispute the appellant's claimed version of events in Vietnam due to the inconsistencies identified in the decision letter and during cross-examination, but regardless of this it is submitted that even if this is accepted by the Tribunal the appellant the means to return and relocate within Vietnam without a risk of ill-treatment. It is not correct to rely on a person's subjective fear to find he cannot relocate without evidence that those they fear have the means and/or motivation to pursue them and that sufficiency of protection will not be forthcoming if sought. There is no reason that the authorities in another region will not assist the appellant, if required. It is significant that he did not even approach them in his home area for assistance before [25] and so it cannot be found that this is not available to him. It is also not accepted that the authorities throughout Vietnam require bribery to provide basic protection to its citizens, which goes against the available country information, such as within the CPIN that the FTTJ has considered ."

33.   The thrust of ground 2 is that the Appellant could reasonably relocate within Vietnam in light of the Judge's findings that the people he fears would not be able to locate him outside of his home area, and that the Judge erred in finding that internal relocation was unreasonable solely on account of his subjective fear.

34.   There is merit in Ms Coen's submission to me that the Respondent has confused the relevant legal tests to be applied by the Judge.

35.   The Judge concluded that the Appellant had a well-founded fear of persecution within his home area and that there would not be sufficient protection. That finding is not vitiated by an error of law nor is it subject to a ground of appeal. Having found the Appellant's narrative account credible, it is arguably the only conclusion that the Judge could properly reach.

36.   She then had to consider whether the Appellant could reasonably relocate.

37.   The House of Lords in Januzi v Secretary of State for the Home Department [2006] UKHL 5 provided, at paragraph 21, the approach to be taken when considering internal relocation:

" T he decision-maker, taking account of all relevant circumstances pertaining to the Claimant and his country of origin, must decide whether it is reasonable to expect the Claimant to relocate or whether it would be unduly harsh to expect him to do so. "

38.   Whilst objective fear is an important consideration, its presence or absence is not determinative either way, as held by Sedley LJ in FK (Kenya) v Secretary of State for the Home Department [2008] EWCA Civ 119 who stated, at paragraph 29:

" The reasonableness of a particular relocation is not necessarily confined to what is objectively to be feared there ... There may be cases where the tribunal is satisfied that, objectively, the appellant can be safe on relocation, but the appellant is so traumatised by past events that she remains in genuine terror of being returned there."

39.   The Appellant's factual matrix is different from that in FK (Kenya). In that case, it was argued that internal relocation would be unreasonable due to the effects that FK's subjective fear would have upon her mental health, whereas in the Appellant's case it is argued that it is unreasonable as he would not access support on account of his subjective fear. Nevertheless, FK (Kenya) is authority that undermines the Respondent's argument that internal relocation can only be unreasonable if there is objective fear.

40.   The Judge applied the correct legal test and concluded that it would not be reasonable for the Appellant to internally relocate as he would not access support through fear of it leading to his whereabouts being known by the money lenders.

41.   In concluding that he would not access that support, she relied upon his subjective fear that the money lenders would be able to locate him throughout Vietnam. Whilst that is not a well-founded fear, in light of the Judge's assessment that the money lenders would not be able to find him, it is nevertheless genuinely held and would prevent him from obtaining sources of support for fear that doing so would attract the attention of the people that he fears and who have previously persecuted him.

42.   The Judge, at paragraph 33, identified that the Appellant would need to register under the Ho Khau registration system and that registration would be " essential" to obtain social support. In forming that conclusion, she relied upon the January 2023 CPIN which states, at paragraph 6.3.2:

"An Academic source told the UK HO FFT that:

'The Ho Khau system is related to social benefits, access to public school or medical care. But it doesn't have any barrier for travel around the country. '... Every household is provided with a book with information on them. Sometimes besides social benefit the official registration affects something like buying a car i.e.: asking someone to buy a car in their name. 3 or 4 years ago, to get the internet you had to have official Ho Khau, but now they have removed it. Also with water and electricity it has been removed. More and more services have been removed from requiring Ho Khau.'

43.   I also note paragraph 6.3.3 which quotes a 2022 DFAT report which states:

" Without a local registration, access to services such as public education and healthcare becomes difficult; a local registration is required to access government services...".

44.   At paragraph 35 of her determination, the Judge concluded that the "... need for the social support which comes with registration will be essential to the Appellant noting his claimed lack of social support in Vietnam."

45.   The Judge adequately assessed the country background evidence of the importance of registration in Vietnam. Her finding that the Appellant would not register due to fear of it leading to him being located by the money lenders was one reasonably open to her to make and was adequately reasoned.

46.   Mr Thompson argued that the Judge failed to adequately assess the availability of support upon obtaining a certificate as a victim of trafficking.

47.   At paragraph 37, the Judge detailed:

"I do not find that the Appellant could or would be able to access support as a victim of trafficking. I note CPIN Vietnam: victims of trafficking, which indicates that a person can only access support of this kind if they have a victims certificate. However the CPIN states that:

'Access to government run services and shelters are unlikely to be available for those returning from the UK as they would not be in receipt of a victim's certificate. Reintegration and support services may be available to them through NGOs who may be able to provide services including shelter, reintegration assistance and vocational training programmes '"

48.   Mr Thompson argued that the Judge failed to acknowledge that the Appellant would be able to obtain a certificate upon arriving at the border, as detailed at paragraph 11.1.1:

"An NGO spoken to by the UK HO FFT stated the following with regards to whether when a victim is identified, they are issued with a victim certificate:

'Not all. By law they will get a certificate which certifies they are a victim of trafficking. It can be granted by border officials or the migration office. It only happens when the person is handed over at the border legally. Eighty percent of victims rescue themselves and cross the border illegally and do not want to make any statement and don't want to go.

'The certificate allows them to receive a support package with 50 USD, but they cannot get this instantly due to procedures in processing. It takes time and they have to give confidential information, they have to wait and give confidential information and then everyone knows.'"

49.   The Judge clearly had regard to the CPIN. As detailed in Volpi, at paragraph 2(vi), she was not required to address every aspect of the evidence in her determination.

50.   In any event, she adequately addressed the prospect of the Appellant obtaining a certificate, and the limited benefits if he did so, at paragraph 38:

"Paragraph 4.1.11 states that 'support for male victims of trafficking is particularly limited '. I find that even if the Appellant did seek to access a certificate and support on return, which I do not, the limited support is unlikely to be available to the Appellant in any meaningful way to address the concerns above. Given the Appellant's claimed fear of the money lenders, I find it unlikely that the Appellant would risk registering for any such assistance through fear of being located."

51.   Those conclusions were reasonably open to the Judge to make and were adequately reasoned. She found that the Appellant would not obtain a certificate for fear that this would lead to his whereabouts being known by the money lenders. That was also a finding open to the Judge to make given that she had found that the Appellant had previously been denied protection in Vietnam and that he has a subjective fear of being located by the money lenders who had previously subjected him to persecution. Her conclusion is consistent with the paragraph of the CPIN relied upon by Mr Thompson, which states that many victims of trafficking will not obtain a certificate. Further, her conclusion that the certificate would only give limited support is consistent with that paragraph of the CPIN which details the limited, and delayed, support that is given.

52.   I accept the Respondent's submission insofar as the case of Sivapalan & Anor, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 2955 quoted by the Judge does not progress the case of either party. However, the Judge's reference to that case does not in itself constitute an error of law. Reference to the case law is at paragraph 34 of the determination in which the Judge stated:

"He would live in constant fear of being found, which is unreasonable to expect of itself, noting Sivaplan v SSHD [2008] EWHC 2955 (Admin)."

53.   Removing reference to the case does not dilute her conclusions, nor did the case materially inform her reasoning, it was merely noted.

54.   For the reasons outlined above, I reject the argument that the Judge failed to give reasons or any adequate reasons for findings on material matters. As such, ground two is dismissed.

Conclusion

55.   The Judge's determination demonstrates a thorough and detailed analysis of the evidence and contains findings of fact that were open to her and conclusions upon adherence to the relevant legal tests. As such, no error of law is made out, either material or otherwise.

Notice of Decision

The decision of the First-tier Tribunal did not involve the making of an error on a point of law. The decision shall stand.

 

DUTJ Moxon

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

20 ^th March 2025