HHP (FE/LA) AGAINST SECRETARY OF STATE FOR THE HOME DEPARTMENT

Factual and Procedural Background

The Petitioner, a Vietnamese national, was trafficked into the United Kingdom. The Petitioner first came to the attention of the British authorities on 18 October 2016 following a police visit to a nail bar, at which time he claimed asylum. On 28 September 2018, the Home Office notified the Petitioner’s solicitors that the Competent Authority had determined that he was a victim of human trafficking. The Petitioner claimed asylum on the basis that he faced a real risk upon return to Vietnam due to potential re-trafficking and/or political activities conducted in the UK (sur place activities).

The Home Office refused the asylum claim on 28 September 2018. The Petitioner appealed to the First-tier Tribunal, which refused the appeal on 24 January 2021 and subsequently refused permission to appeal to the Upper Tribunal on 23 February 2021. The Petitioner then applied to the Upper Tribunal for permission to appeal, which was refused on 20 April 2021. The Petitioner sought judicial review of the Upper Tribunal’s refusal to grant permission to appeal.

Legal Issues Presented

1. Whether the First-tier Tribunal arguably erred in law by finding there was no reliable evidence that the Vietnamese authorities would be aware of the Petitioner’s sur place political activities in the UK.
2. Whether the First-tier Tribunal erred in its assessment and weight given to a Home Office Minute Sheet recording the Petitioner’s first immigration interview.
3. Whether the First-tier Tribunal failed to adequately consider the risk of re-trafficking and relevant country policy information.
4. Whether there were material errors in the consideration of Article 8 of the European Convention on Human Rights issues.
5. Whether the First-tier Tribunal failed to give careful and thorough consideration to the evidence, including alleged misunderstanding of solicitor’s submissions.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined whether the First-tier Tribunal had arguably erred in law in its factual and legal assessments. Regarding the sur place activities, the First-tier Tribunal had found no reliable evidence that the Vietnamese authorities would be aware of the Petitioner’s minimal political activities in the UK, specifically two demonstrations attended by the Petitioner. While the court acknowledged that another judge might have reached a different view on the recognisability of the Petitioner in photographs from these demonstrations, it affirmed that such factual findings are within the First-tier Tribunal’s discretion and not subject to appellate interference.

However, the court identified a potential legal error in the First-tier Tribunal’s failure to consider the Petitioner’s attendance at the Embassy demonstration as evidence that the Vietnamese authorities might be aware of his activities, beyond the online photographs. This omission of a relevant matter and the resulting conclusion was arguably irrational, engaging the principle from MA (Somalia). The court concluded that the Upper Tribunal failed to identify this arguable error of law.

Regarding the Home Office Minute Sheet documenting the Petitioner’s first immigration interview, the court found no arguable error of law in the First-tier Tribunal’s decision to rely on the Minute Sheet despite a concession that it was not a verbatim record. The Tribunal’s assessment was based on the totality of evidence and credibility findings.

In relation to the risk of re-trafficking, the court accepted the Upper Tribunal’s view that the First-tier Tribunal had carefully evaluated the subjective and background evidence, including relevant country policy, and had not arguably erred in law.

For Article 8 considerations, the court noted that the Upper Tribunal found the First-tier Tribunal’s reasoning sound and that no arguable legal error was demonstrated. The court also rejected the contention that the First-tier Tribunal misunderstood the solicitor’s submissions regarding the extent of evidence accepted.

Holding and Implications

The court reduced the decision of the Upper Tribunal refusing permission to appeal, holding that the Upper Tribunal had failed to identify an arguable error of law made by the First-tier Tribunal in relation to the assessment of the Petitioner’s sur place activities and the awareness of the Vietnamese authorities.

The direct effect of this decision is to allow the Petitioner to pursue permission to appeal to the Upper Tribunal on this ground. The court reserved all questions of expenses. No new precedent was established beyond the application of existing principles to the facts of this case.