Upper Tribunal (Immigration and asylum chamber), 2024-03-12, UI-2024-000101
| Appeal Number | UI-2024-000101 |
| Hearing Date | 28 February 2024 |
| Date | 12 March 2024 |
| Published date | 27 March 2024 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Case No.: UI-2024-000101
First-tier Tribunal No: PA/51094/2023
|
IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No.: UI-2024-000101 First-tier Tribunal No: PA/51094/2023 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 12 March 2024
Before
DEPUTY UPPER TRIBUNAL JUDGE MONSON
Between
NNP (VIETNAM)
(ANONYMITY DIRECTION MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms Abigail Smith, Counsel instructed by the
South West London Law Centre
For the Respondent: Ms Sandra McKenzie, Senior Home Office Presenting Officer
Heard at Field House on 28 February 2024
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
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The appellant has been granted permission to appeal against the decision of Judge Maka promulgated on 26 November 2023 (“the Decision”). By the Decision, Judge Maka dismissed the appellant’s appeal against the decision of the respondent dated 27 January 2023 to refuse to recognise him as a refugee, or to grant him leave to remain on human rights grounds.
Relevant Background
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The appellant is a national of Vietnam, whose accepted date of birth is 11 October 2004.
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The appellant entered the United Kingdom illegally by boat in May 2021 and he was initially detained on suspicion that he was an adult asylum-seeker. He was given a screening interview as an unaccompanied asylum seeking minor on 21 September 2022. In his interview, he said that he worked in China for a person named “Aty”, who was Chinese, and that Aty had brought him to the UK for work. In answer to questions about his journey to the UK, he said that he left Vietnam on 12 August 2019. He had gone to China, where he was for 3 months. He then went to Russia, where he was for one year, and then to France before ending up in the UK. Aty had made the decision for him to come to the UK. Aty had promised him work here.
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The appellant had earlier made a witness statement in support of his claim on 28 July 2022. He said that in January 2018 he decided to leave Vietnam as some people in his village told him that there was plenty of work in China. When he first arrived in China, he was helping other Vietnamese people who were working on a construction site. People he stayed with helped him find his first two jobs. The people he stayed with received his wages on his behalf and gave money to him. He thought they took away some of his money. From May to June 2019, he worked as a porter loading goods from a lorry to the warehouse. For his jobs at a toy factory and as a porter he had received 4 million Vietnamese dong. While he was working as a porter, he met a Chinese man called Aty who was his employer.
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He returned to Vietnam in July 2019 after Aty promised to find him a job somewhere else with better pay. Aty said that he could send him to the UK for work, but the journey would cost him £15,000 sterling. He told Aty that he did not have that amount of money. Aty asked him to pay whatever he had, and when he started working in the UK he could pay him the balance. He decided to return to Vietnam, as he wanted to visit his grandmother’s grave for the last time, and he also wanted to get his grandmother’s money from his neighbour Tan.
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A Vietnamese man who was working for Aty took him back to Vietnam. The appellant went back to his village, and on 12 August 2018 he took a coach to Lang Son to meet up with Tan. When he got there, Tan gave him the money.
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When he returned to China, Aty arranged a place for him to stay with other Chinese and Vietnam people while he made arrangements for them to leave China. They used to take turns to cook and tidy up the house, but they were not allowed to leave the house. The house was kept locked all the time. He stayed in the house for 3 months, and during this time he was not working. At the end of December 2019, he was smuggled in a lorry from China to Russia. In Russia he was put to work in a factory with other people. He did not get any wages for the work he did at the factory. The other Vietnamese people told him that he should not leave the place, and there were two Russian men always guarding the factory. There was a time when he wasn’t well, and he asked them whether he could take the day off. But they did not allow him to do so.
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The appellant telephoned Aty after a few months, and asked him why he was staying in Russia when he promised that he was going to the UK. Aty told him that he had to stay working in Russia until he had made all the arrangements for him to go to the UK.
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Eventually, he was taken in a lorry with others on a journey to Western Europe. He arrived at a campsite in the forest, and he was told that they were in France. He heard some people say that they were in Dunkirk, and others saying that they were in Calais. Although he was in contact with Aty in France, he lost contact with Aty on the boat journey to England, as his phone became unusable as it got wet.
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On arrival in the UK, he was taken to a detention centre. He only told Immigration Officers what he happened to him Vietnam and how he had travelled from Vietnam to Russia, but he did not mention that he was forced to work in Russia, and he did not mention Aty. This was because other Vietnamese at the detention centre said that he should not say too much in case he was released and the traffickers got hold of him.
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He was scared that if he was returned to Vietnam, Aty or his people could find him and harm him for not repaying the money, or that they would traffick him again and would force him to work.
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In the refusal decision, the respondent accepted that the appellant had been forced to work and was thereby a member of a particular social group, as a victim of trafficking. While he knew the trafficker and might have an outstanding debt to him, the person in question by his account was Chinese, and by his account he had encountered him outside Vietnam and that he operated out of China. He could not provide any reason why he would know of his return to Vietnam. Consequentially, it was not accepted that he would be at risk of re-trafficking.
The Hearing Before, and the Decision of, the First-tier Tribunal
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The appellant’s appeal came before Judge Maka sitting at Hatton Cross on 16 November 2023. Both parties were legally represented.
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In the Decision at [31], the Judge accepted the appellant’s nationality, identity, his membership of a particular social group, and the fact that he was forced to work and was therefore a victim of trafficking. He accepted that the trafficking took place in China, where the appellant went voluntarily to look for work. On his own evidence, the appellant had worked in China for a year-and-a-half, and just over a month for Aty.
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At paras [33]-[35], the Judge gave his reasons for finding that the appellant did not have a well-founded fear of the Vietnamese authorities on account of his participation in the Formosa protest at the age of 11 or 12.
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At paras [36]-[48], the Judge gave his reasons for not accepting the appellant’s account of a continuing fear of, or risk from, his traffickers. Part of his reasoning was that he did not accept that the appellant was not paid for his work in Russia, contrary to what the appellant stated in his witness statement. He did not find it plausible that Aty would pay him for his work in China, but then not pay him for his work in Russia. He noted that the country expert did not deal with this important issue. He found that the appellant was paid for his employment in China and Russia, and this was the reason why he was taken by Aty towards an agreed journey to the UK. This also explained why, despite the passage of time and despite his extensive claimed network in the UK, the appellant had not been threatened by Aty, nor had he been forced to work for Aty in the UK to repay his outstanding debt to him. This was because, he found, there was no outstanding debt.
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The Judge went on to dismiss the appeal on all grounds raised.
The Grounds of Appeal to the Upper Tribunal
Ms Smith of Counsel (who appeared below) settled the grounds of appeal to the Upper Tribunal. Ground 1 was that the Judge had made material errors of fact amounting to errors of law, as per E [2004] EWCA Civ 49, in relation to the appellant’s account of having been forced to work. In particular, the Judge made material errors of fact in relation to the chronology of time spent in China and Russia at paras [31], [38] and [41]. The Judge misunderstood that the appellant initially went to China with other villagers to find work as a child. This was not trafficking. He was there for over a year on that occasion and worked in various...
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