Upper Tribunal (Immigration and asylum chamber), 2023-11-16, UI-2023-003196
| Appeal Number | UI-2023-003196 |
| Hearing Date | 28 September 2023 |
| Date | 16 November 2023 |
| Published date | 01 December 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
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Case No: UI-2023-003196 |
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First-tier Tribunal No: PA/50262/2021 |
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2023-003196 |
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First-tier Tribunal No: PA/50262/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 16th of November 2023
Before
UPPER TRIBUNAL JUDGE STEPHEN SMITH
DEPUTY UPPER TRIBUNAL JUDGE BOWLER
Between
DQL
(ANONYMITY DIRECTION MADE)
Appellant
and
Secretary of State for the Home Department
Respondent
Representation:
For the Appellant: Mr A. Jafar, Counsel instructed by Norton Folgate Solicitors LLP
For the Respondent: Mr N. Wain, Senior Home Office Presenting Officer
Heard at Field House on 28 September 2023
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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By a decision dated 3 March 2023, First-tier Tribunal Judge Ford (“the judge”) dismissed an appeal brought by the appellant, a citizen of Vietnam born on 4 June 1994, against a decision of the Secretary of State dated 12 January 2021 to refuse his asylum and humanitarian protection claim. The judge heard the appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002.
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The appellant now appeals against the decision of the judge with the permission of First-tier Tribunal Judge Oxlade.
Anonymity
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The judge made an order for anonymity, which we maintain. The appellant has made a claim for international protection based, in part, on the risk he will face arising from surveillance activity conducted by the Vietnamese authorities. That claim is yet to be finally determined. We therefore maintain the order.
Factual background
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The appellant was admitted to the United Kingdom as a student in October 2013, with leave until 18 January 2016, following which he remained as an overstayer. He claimed asylum on 7 December 2019. The claim was refused, and it was the refusal of that decision that was under appeal before the judge below.
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The basis of the appellant’s claim was that he became involved in a Vietnamese political party, the Viet Tan (“VT”), following his arrival in the UK. He had had some minor involvement with the movement in Vietnam prior to his departure for the UK, including being arrested and detained following his attendance at a demonstration, although he was later released. In October 2016, the VT were proscribed as a terrorist organisation by the Vietnamese government. The appellant says that has engaged in a number of sur place activities in the UK, including attending demonstrations outside the Vietnamese embassy in London. Those activities came to the attention of the authorities and led to them attempting to execute an arrest warrant against him at his parents’ home in Vietnam. His family and Vietnamese lawyer remain under surveillance. They cannot communicate freely, preventing the appellant from obtaining certain supporting documentation from them. He cannot return to Vietnam because he will be persecuted for his political opinion.
The decision of the First-tier Tribunal
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In her decision, after having summarised the parties’ respective cases and marshalled the evidence, the judge commenced her operative findings at para. 39. She found that the appellant’s credibility was harmed by the delay in the claim for asylum. The appellant had provided little proof that he had attended 30 demonstrations in the UK, as he claimed. The judge said that she was “prepared to accept” that the appellant had attended a VT demonstration in Vietnam, and that he had been detained “for a time along with other protesters and warned not to attend any further demonstrations” (para. 41), but she did not accept that he had been charged with any offences. As to that, she said:
“I do not accept that any record will have been created alerting the authorities to this detention if enquiries are made at the current time. I find that the detention was only for a matter of hours and intended to intimidate the appellant and other protesters and deter them from getting involved in such protests/demonstrations in the future.”
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In her remaining findings, the judge said she saw “no reason” for the authorities in Vietnam to have waited five years after the appellant had left the country before issuing an arrest warrant against him, as he had claimed (para. 43). There is no satisfactory evidence of the appellant engaging in activities in the United Kingdom that may have triggered such a warrant being issued (para. 44). There was no documentary evidence concerning the claimed arrest warrant; it would have been open to the appellant to have made enquiries with the lawyer instructed by his family in Vietnam concerning the arrest warrant, even if it had not been possible to obtain a copy of the document itself (para. 45). The appellant’s claim to be hampered in his attempts to communicate freely with his family in Vietnam was undermined by the fact he had been able to convey some information they purportedly provided to him, such as the allegations relating to the arrest warrant. The judge also found that there was a “complete absence” of supporting evidence from any VT supporters in the UK about the appellant’s claimed activities, such as a witness statement from a party official, or similar attendance at the hearing on his behalf.
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The judge nevertheless accepted that the appellant had made social media posts that were critical of the Vietnamese authorities, and that he had attended a “limited number” of demonstrations outside the Vietnamese embassy. As to the appellant’s Facebook posts, the judge accepted that the platform was monitored by the Vietnamese authorities, and that the authorities conducted surveillance outside the Embassy, something which she described as “hardly surprising”: see paras 48 and 49.
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As to the consequences to the appellant of his activities outside the Vietnamese Embassy, and the authorities’ surveillance of those activities, the judge said at para. 50:
“…I do not accept that the appellant could be recognised or identified from such monitoring. I have no evidence before me that the Vietnamese authorities could use facial recognition software or any other recognition methods that could reliably lead to the appellant being identified.”
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On the same theme, in relation to the appellant’s presence in a photograph posted online in which he accompanied a senior VT official, the judge said at para. 50:
“I do not see how the appellant would be identified from those photos and his details provided to the Vietnamese authorities.”
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The judge addressed the appellant’s presentation of a VT membership card. At para. 51, the judge noted that the appellant had applied for membership only weeks before making the claim for international protection in 2019.
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Overall, the judge found that the appellant’s political profile in the United Kingdom was limited. His claimed VT friendship group and contacts in the UK were limited, and the timing of such contacts “ties in with his asylum claim.” The judge was not satisfied that the appellant had ever been a member of the VT party in Vietnam or elsewhere, including the UK. She did not accept that there was any record of adverse interest on the part of the Vietnamese authorities in the appellant “so as to trigger any adverse interest in the appellant by reason of actual and/or imputed political beliefs.” The appellant had family members in Vietnam who would be able to assist him in the event of his return. His qualifications would assist him to find employment.
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The judge dismissed the appeal.
Issues on appeal to the Upper Tribunal
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There are nine grounds of appeal. On a fair reading, they may be summarised as follows:
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Ground 1: the judge made contradictory findings concerning the appellant’s VT membership. At para. 51 she accepted that he had joined the party “only weeks before he claimed protection”, yet at para. 64 she reached the contradictory finding that he had never been a member of the party.
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Ground 2: the judge breached the principles in YB (Eritrea) [2008] EWCA Civ 360 by expecting the appellant to provide evidence going to the Vietnamese authorities’ covert surveillance capabilities. As Sedley LJ said at para. 18, “this is a finding which risks losing contact with reality.”
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Ground 3: the judge’s criticisms of the appellant’s ‘failure’ to obtain evidence from his family about their contact with his lawyer were unfair because the appellant was only asked limited questions about that issue at the hearing.
Ground 4: in finding that the appellant’s claim not to be able freely to communicate with his family and lawyers in Vietnam lacked credibility because there had been some information they had been able to convey to him, the judge failed to have regard to the...
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