Introduction

The case of HHP (FE/LA) v Secretary of State for the Home Department ([2022] CSOH 48) represents a significant development in the jurisprudence surrounding asylum claims based on human trafficking and political persecution. The petitioner, a Vietnamese national trafficked into the United Kingdom, sought asylum on grounds of potential re-trafficking and fears arising from his political activities both in Vietnam and his sur place (local) activities in the UK. The case traversed multiple legal forums, culminating in a judicial review challenging the Upper Tribunal's refusal to grant permission for an appeal against the decision of the First-tier Tribunal.

Summary of the Judgment

The Scottish Court of Session, Outer House, delivered the judgment on July 15, 2022. The crux of the matter lay in whether the Upper Tribunal erred in law when refusing permission to appeal the First-tier Tribunal's decision. The First-tier Tribunal had previously dismissed the petitioner's asylum claim, particularly scrutinizing his sur place activities—two demonstrations attended in the UK—as insufficient to establish a credible risk if returned to Vietnam.

The Upper Tribunal upheld the First-tier Tribunal's decision, emphasizing the lack of reliable evidence that Vietnamese authorities would be aware of the petitioner's participation in these demonstrations. However, the petitioner contended that this assessment was legally flawed, arguing that the tribunal failed to consider all relevant evidence beyond online photographs.

Lord Ericht, delivering the opinion, agreed with the petitioner regarding the assessment of sur place activities. He held that the First-tier Tribunal had potentially erred by not adequately considering the implications of attending a demonstration outside the Vietnamese Embassy in London, where awareness by the authorities could be inferred through means other than online photographs.

Analysis

Precedents Cited

The judgment extensively referenced key precedents that guide the standards for judicial review and the evaluation of asylum claims:

• Waqar Ahmed v SSHD [2020] CSIH 59: This case established the framework for determining whether a tribunal has made an error of law, emphasizing the need for appellate bodies to identify arguable legal errors in first instance decisions.
• MA (Somalia) v SSHD [2010] UKSC 49: This precedent highlighted the importance of considering all relevant matters and avoiding irrational conclusions when assessing evidence in asylum cases.

These cases were pivotal in guiding Lord Ericht's analysis, particularly in evaluating whether the First-tier Tribunal's findings on sur place activities constituted an error of law.

Legal Reasoning

The core legal issue revolved around whether the Upper Tribunal correctly identified any legal errors in the First-tier Tribunal's assessment of the petitioner's sur place activities. The petitioner argued that the First-tier Tribunal erred by relying predominantly on online photographs to dismiss the likelihood of Vietnamese authorities being aware of his participation in demonstrations.

Lord Ericht meticulously dissected the reasoning applied by the First-tier Tribunal. While acknowledging that the tribunal had rightfully assessed the recognizability of the petitioner in the photographs, he pointed out that attendance at a demonstration outside an embassy inherently increases the probability of governmental awareness through other channels, such as eyewitnesses or internal surveillance.

Consequently, Lord Ericht concluded that the First-tier Tribunal may have overlooked a relevant aspect by not sufficiently considering the petitioner's presence at the embassy demonstration beyond the scope of online photographic evidence. This oversight, he determined, could constitute an arguable error of law, thereby justifying the reduction of the Upper Tribunal's refusal to grant permission for an appeal.

Impact

This judgment has profound implications for future asylum cases involving sur place activities. It underscores the necessity for tribunals to adopt a holistic approach when evaluating evidence, particularly in instances where petitioners participate in politically sensitive activities abroad. Tribunals must consider all possible avenues through which authorities might become aware of such activities, beyond just digital or photographic evidence.

Furthermore, this case reinforces the standards for judicial review, emphasizing that appellate bodies must vigilantly assess whether first instance decisions have adequately considered all relevant evidence and legal principles. It sets a precedent that errors in the assessment of sur place activities can lead to the overturning of Tribunal decisions, thus ensuring greater scrutiny and fairness in asylum determinations.

Complex Concepts Simplified

Conclusion

The judgment in HHP (FE/LA) v Secretary of State for the Home Department serves as a pivotal reference point in the adjudication of asylum claims involving sur place activities. By highlighting the necessity for tribunals to consider the full spectrum of evidence and the potential awareness of authorities regarding a petitioner’s activities, the court ensures a more robust and fair evaluation process.

Moreover, this case reinforces the standards for judicial review, particularly the imperative for appellate bodies to detect and rectify any legal errors in lower tribunal decisions. The reduction of the Upper Tribunal's refusal to grant permission for an appeal underscores the judiciary's commitment to upholding legal integrity and fairness in asylum determinations.

Ultimately, the judgment underscores the delicate balance courts must maintain between adhering to legal standards and ensuring that asylum seekers receive a comprehensive and just evaluation of their claims.