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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005011
	First-tier Tribunal No: PA/64699/2023 LP/04663/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

19 ^th February 2025

 

Before

 

UPPER TRIBUNAL JUDGE HANSON

DEPUTY UPPER TRIBUNAL JUDGE PICKERING

 

Between

 

TN

(ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Ms Coen, of counsel

For the Respondent: Mr Thompson, a Senior Home Office Presenting Officer

 

Heard at Phoenix House (Bradford) on 27 January 2025

 

DECISION AND REASONS

 

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 him or any member of his family. Failure to comply with this order could amount to a contempt of court.

 

1.             The appellant is a Vietnamese national born in 1973, who appeals with permission the decision of First-tier Tribunal Judge Woolley ('the Judge'), promulgated on 2 September 2024, in which he dismissed her appeal, on protection and human rights grounds, against the decision to refuse to grant her international protection.

 

The basis of the appellant's claim

 

2.             The appellant is a victim of trafficking (VOT). She borrowed money from loan sharks in Vietnam to invest in her business. Her business failed therefore she was unable to repay the debt. The loan sharks arranged for the appellant to travel to the UK to pay off the loan. When the appellant arrived in the UK, she was forced into criminality. As is colloquially known she worked in a cannabis farm. After approximately one year, the appellant escaped her traffickers.

3.             The respondent refused the appellant's claim for international protection. It was accepted that the appellant was a VOT and that she had taken out a loan from a loan shark in Vietnam.

4.             The respondent did not consider that the appellant to be at real risk on return to Vietnam. This was because there was said to be a sufficiency of protection and internal relocation alternative available to the appellant.

 

 

The grant of permission

5.             Following refusal of permission to appeal by the First-tier, Upper Tribunal Judge Bulpitt granted permission. His grant of permission was limited to grounds one and three.

6.             Ground one submitted that the Judge had misdirected themselves in law and/or had adopted a perverse approach the previous determination of Judge Nazir. The submissions contained within the ground are three fold. The first point advanced is that the Judge had misdirected themselves as to the standard of proof to be applied when treating Judge Nazir's findings as a starting point. The second point made in ground one is that the Judge had not explained why the concession of the respondent, that the appellant was a VOT, was not a good reason for departing from Judge Nazir's findings. Finally the Judge had not reconciled the acceptance by the respondent that the appellant was a VOT and their finding that the appellant had not provided a credible account of her experiences in Vietnam and the UK.

7.             Ground three advanced that the Judge's approach to credibility was perverse and/or inadequate reasons had been given. Whilst permission was granted, Judge Bulpitt focussed on §10 of the grounds which states:

 

10. At [30], [31], [32] takes points against the Appellant which relate to her claim to her past victimhood as a victim of modern day slavery do not appear to have been taken against the Appellant by the Respondent. In the context of the case, this reasoning is unsafe.

 

8.             In anticipation of the hearing before us Ms Coen provided a skeleton argument which developed grounds one and three. The respondent provided a Rule 24 in which the appeal was opposed. In broad terms the decision was said not to contain material errors of law. Additionally, even if the Tribunal were to find an error of law on grounds one and/or three that the unchallenged findings about there being a sufficiency of protection and internal relocation alternative meant that any error was not material.

 

 

Discussion

9.             We are satisfied that grounds one and three are made out. There are two main reasons why we came to this conclusion, which overhang both grounds. Turning to those reasons.

10.          Firstly in relation to ground one, there is no suggestion that the Judge should not have directed themselves to Devaseelan (Second Appeals - ECHR - Extra-Territorial Effect) Sri Lanka *  [2002] UKIAT 00702 . The Judge did so correctly and decided to take Judge Nazir's determination as a starting point.

 

11.          The difficulty arising is the approach that the Judge then took to that determination after taking it as their starting point.

12.          The Judge was determining a protection appeal. The standard of proof for the assessment of past facts is to a lower standard. The Judge was evidently aware of that standard [§16].

 

13.          When Judge Nazir made his findings, these findings were made on a balance of probabilities. This is because they were assessed through the lens of Article 8.

14.          In adopting the Judge Nazir's findings as their starting point, the Judge then did not move on to reconcile the differing standards of proof to be applied.

15.          Secondly, in relation to ground one and three, as submitted in the grounds things "had moved on considerably" in that the appellant had been recognised as a VOT by the respondent. Whilst the Judge acknowledges that the respondent had accepted that the appellant is a VOT [§39] the Judge does not explain why in light of this concession they did not think that was not a good reason to depart from Judge Nazir's findings. The Judge also gives the impression of having gone behind that concession when they found that the appellant has not a truthful account of her experience in Vietnam or the UK [§40]. This finding is difficult to reconcile with the acceptance that the appellant was an accepted VOT.

 

Notice of Decision and disposal of the appeal

 

16.          The decision of the Judge contains material errors of law and is set aside.

17.          We have considered whether having found that the decision contains a material error of law whether we should remit the case to the First-tier Tribunal or whether we should remake the decision.

18.          We recognise that remaking rather than remitting would ordinarily be the approach. We have reminded ourselves of the guidance including the Joint Presidential Guidance 2019 No 1: Permission to appeal to UTIAC and Begum (Remaking or remittal) Bangladesh  [2023] UKUT 46 (IAC) . On the basis of ground one we considered that there was a defect of a procedural nature which meant that the appellant was deprived of a fair hearing.

19.          We have decided that in remitting no facts should be preserved. This was because the findings made by the Judge regarding risk, sufficiency of protection and internal relocation are vitiated by the errors we have found in ground one and three.

 

 

RA Pickering

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

10 February 2025