Factual and Procedural Background
This appeal concerns whether the Upper Tribunal (Immigration and Asylum Chamber) ("Upper Tribunal") was correct to find a material error of law in the decision of the First-tier Tribunal (Immigration and Asylum Chamber) ("FTT") dated 4 August 2023. The Upper Tribunal found that the FTT failed to adequately engage with the Secretary of State's reasons for disbelieving the appellant's account, gave internally inconsistent reasons for finding the appellant credible, set aside the FTT decision, and remitted the matter for redetermination.
The appellant, a Vietnamese national, claims risk of persecution or serious harm if returned to Vietnam. He was a crew member on a cruise ship that docked unexpectedly in Dover in September 2017, where he absented himself and was reported as a seaman deserter. In June 2020, he was arrested in connection with cannabis production and subsequently convicted in December 2020, receiving a sentence of 3 years and 7 months imprisonment.
In June 2021, the appellant was served a deportation notice and made a protection and human rights claim. He submitted further medical and asylum-related evidence in 2022, including hospital reports relating to injuries sustained in Vietnam. The appellant's asylum claim was based on fear of persecution linked to evasion of national military service, alleging ill-treatment and extortion by military officials despite an exemption due to his father's martyr's certificate.
The Secretary of State rejected the claim in October 2022, citing lack of corroborative evidence, credibility concerns, and the appellant’s failure to claim asylum earlier in safe countries. The appellant appealed to the FTT, which heard the case in July 2023 and issued a decision in August 2023 finding the appellant credible and not a danger to the community, granting protection on humanitarian grounds.
The Secretary of State appealed to the Upper Tribunal, which in December 2023 found material errors of law in the FTT decision, particularly regarding credibility assessments and failure to address the availability of due process in Vietnam. The Upper Tribunal set aside the FTT decision and remitted the case for reconsideration.
The appellant and Secretary of State then appealed to this court, which considered the correctness of the Upper Tribunal’s decision to set aside the FTT’s findings.
Legal Issues Presented
- Whether the Upper Tribunal was correct to find a material error of law in the FTT's decision, specifically regarding the assessment of the appellant's credibility.
- Whether the FTT adequately engaged with the Secretary of State's reasons for disbelieving the appellant's account, including the existence of protection and due process in Vietnam.
- Whether the FTT's reasons for finding the appellant credible were adequate and internally consistent.
- The appropriate standard of review and restraint to be exercised by the Upper Tribunal and appellate courts when considering appeals from the FTT on findings of fact and credibility.
Arguments of the Parties
Appellant's Arguments
- The Upper Tribunal judge erred by disregarding and setting aside the FTT’s findings of fact and credibility without proper regard to the relevant jurisprudence on appellate restraint.
- The FTT judge properly applied the lower standard of proof applicable in asylum and protection claims and reasonably found the appellant credible despite the Secretary of State’s disagreement.
- The fact that the Secretary of State disliked the outcome did not demonstrate any legal error in the FTT’s decision.
Secretary of State's Arguments
- The Upper Tribunal judge was correct to set aside the FTT decision due to inadequate and internally inconsistent reasons for the credibility findings.
- The FTT judge failed to address key issues such as the implausibility of the appellant paying bribes to avoid military service when he had an exemption and the absence of supporting evidence from family members.
- The FTT judge did not properly weigh the appellant’s involvement in criminal activity when assessing the plausibility of his asylum claim and credibility.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| TK (Burundi) v Secretary of State for the Home Department [2009] EWCA Civ 40; [2009] Imm AR 488 |
Corroboration not required but failure to provide readily available evidence may damage credibility. |
FTT judge applied this principle when considering absence of recruitment order and family witness statements as damaging to credibility. |
| Volpi and another v Volpi [2022] EWCA Civ 464; [2022] 4 WLR 48 |
Appellate restraint in interfering with fact findings; no duty to address every argument explicitly. |
Upper Tribunal judge cited this to support approach to reviewing FTT decisions; majority of this court agreed on principles of restraint. |
| T (Fact-finding: second appeal) [2023] EWCA Civ 485 |
Standards for appellate review of fact findings and credibility assessments. |
Referred to in assessing whether Upper Tribunal properly exercised restraint. |
| McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477 |
Review of law regarding appellate interference with fact findings. |
Referenced in the context of appellate restraint and review standards. |
| Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5; [2014] ETMR 26 |
Requirement for sufficient reasons to show basis of decision; no need to address every argument. |
Emphasized the need for reasons sufficient to show the principles and reasons leading to decision; applied in evaluating FTT and Upper Tribunal reasoning. |
| G v G [2021] UKSC 9; [2022] AC 544 |
General principles of asylum law derived from the 1951 Refugee Convention and 1967 Protocol. |
Referenced to explain the legal framework governing asylum and protection claims. |
| Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 |
Standard of proof in asylum claims is a modest standard of likelihood. |
Applied to confirm the lower standard of proof applicable in asylum and protection claims. |
| MAH (Egypt) v Secretary of State for the Home Department [2023] EWCA Civ 216; [2023] Imm AR 3 |
Clarification of the assessment of risk and standard of proof in human rights protection claims. |
Used to explain the assessment of real risk and the “most anxious scrutiny” required in asylum claims. |
| Terzaghi v Secretary of State for the Home Department [2019] EWCA Civ 2017; [2020] Imm AR 461 |
Limited rights of appeal from FTT to Upper Tribunal; appellate restraint on fact findings. |
Referenced to support the principle that FTT fact findings should not be readily set aside by the Upper Tribunal. |
| A E (Iraq) v Secretary of State for the Home Department [2021] EWCA Civ 948 |
Appellate restraint; disagreement with fact findings is not necessarily an error of law. |
Cited in dissenting judgment to emphasize restraint and caution against re-packaging disagreement as legal error. |
Court's Reasoning and Analysis
The court carefully reviewed the FTT and Upper Tribunal decisions and the parties’ submissions. It recognized the lower standard of proof applicable in asylum and protection claims, requiring only a modest standard of likelihood rather than strict proof. The FTT judge had found serious concerns about the appellant's credibility due to the absence of supporting evidence (such as the recruitment order and family witness statements), but nonetheless found the appellant’s account plausible and credible on the lower standard of proof, considering the evidence as a whole.
The Upper Tribunal found that the FTT judge’s reasons were inadequate and internally inconsistent, particularly because she did not engage with the Secretary of State's reasons for disbelief relating to the availability of due process in Vietnam, and failed to explain how serious concerns about credibility were overcome to find the appellant credible. The Upper Tribunal also identified an unclear treatment of findings that were defensive rather than positive credibility findings, and noted the exclusion of the martyr's certificate from the balancing exercise, which undermined the appellant's core claim.
However, the majority of this court concluded that the Upper Tribunal had erred by overstepping its appellate role and failing to show appropriate restraint. The FTT judge had heard and assessed the evidence, including the appellant’s explanations for gaps and inconsistencies, and had applied the correct standard of proof. The FTT judge’s reasons, while capable of being better expressed, were clear and sufficient to support her findings. The court emphasized that appellate courts should not interfere with fact findings merely because they might have reached a different conclusion.
The dissenting opinion argued that the Upper Tribunal was correct to set aside the FTT decision due to inadequate reasoning and internal inconsistency in credibility assessments, but acknowledged that this did not affect the overall outcome of remitting the matter for reconsideration.
Holding and Implications
The court DISMISSED the appellant's appeal against the Upper Tribunal's decision to set aside the FTT's findings.
As a result, the Upper Tribunal’s decision to quash the FTT decision and remit the case for redetermination stands. This means the case will return to the FTT for a fresh hearing and decision with detailed fact-finding and credibility assessment. No new precedent was set by this decision; rather, it reaffirmed the principles of appellate restraint and the necessity for adequate reasoning in credibility determinations within asylum and protection claims.