Vietnamese man who claimed he was human trafficking victim wins permission to appeal refusal of asylum application 

A judge in the Court of Session reduced the decision of the Upper Tribunal refusing permission to appeal against the decision of the First-tier Tribunal, after ruling that the UT failed to consider all of the grounds of appeal, which amounted to a “material error of law”.

The court heard that the petitioner “HMD” claimed asylum on the basis that he feared “mistreatment” as a victim of human trafficking if returned to Vietnam, and also that he was “at risk of persecution’ because had been brought up Roman Catholic and practised his faith.

But the Home Office refused his claim and his appeal to the FTT was dismissed, as the judge did not believe the petitioner’s claim that he was a victim of trafficking, or his claim that he was a Catholic.

The petitioner sought permission to appeal, but the FTT refused the application.

‘Arguable grounds of appeal’

The grounds of appeal to the FTT contained a first paragraph headed “Background”, and, under the heading “Errors of law”, further paragraphs numbered 1 to 13.

The first two complained that the FTT judge considered the credibility of the petitioner by references to his own account and inconsistencies in it, before then turning to a medical report by a Dr Maguire, and a report by a Professor Bluth, who gave an opinion regarding conditions in Vietnam so far as relevant to the claims made by the petitioner.

Paragraph 3 related to the FTT judge’s approach to the relevance of a tattoo of a Vietnamese priest on the petitioner’s chest, in the context of his claim to be a Roman Catholic, while paragraphs 8 to 12 also related to criticisms of the FTT judge’s approach to the evidence about the petitioner’s Roman Catholicism.

Paragraphs 4 to 7 made various criticisms as to the approach taken to particular aspects of the petitioner’s account in the FTT judge’s decision, and finally, paragraph 13, claimed that the judge also failed to adequately consider the expert reports.

The grounds of appeal to the UT referred to the original grounds of appeal and stated that these would be relied upon, but permission was refused again, following which the petitioner sought leave from the Court of Session.

In seeking reduction of the UT’s decision, the petitioner submitted that the reasons for refusal disclosed that the UT did not consider all of the grounds of appeal, including those brought before the FTT and incorporated by reference into the grounds before the UT.

It was argued that several grounds were “simply not mentioned at all” in the reasons, and that the UT “erred in law” in failing to consider those grounds of appeal - all of which were said to be “arguable”.

It was also submitted that the reasons given for refusing permission focused on complaints made by the petitioner about the approach of the FTT judge on the issue of credibility, but those reasons themselves disclosed error of law on the part of the UT, as the grounds of appeal to which they related were arguable. 

‘Material error of law’

Reducing the decision, the Court of Session ruled that the UT made a “material error of law”, meaning that there was a real possibility that, had the error not occurred, the outcome would have been different.

In a written opinion, Lady Carmichael said: “The reasons given by the UT do not disclose any consideration at all of a number of the grounds which were before the FTT and which were expressly relied on, of new, before the UT. There is no indication, for example, that it considered any of the grounds before the FTT which dealt with the FTT judge’s treatment of the petitioner’s claim based on his Roman Catholicism. 

“The UT need not in all cases give reasons for refusing each ground of appeal individually. Different grounds of appeal may in substance address the same matters.

“There may be cases in which some claimed errors of law are not material unless another is found established. If that latter claimed error is not deemed arguable, it will be pointless for the UT to consider permission in relation to all of the others. Refusal of permission may be made in very short form, so long as the reasons disclose why the matter was decided as it was and what conclusions were reached on the principal and controversial issues of importance.

“In this case, however, I infer that the UT did not consider any grounds other than those focused in paragraphs 2-6 of the grounds of appeal to the UT. That was an error of law. It was a failure to exercise the jurisdiction with which it had been entrusted by Parliament in relation to considering applications for permission to appeal.”

She continued: “The respondent submitted that some of the grounds had already been addressed by the FTT, that the UT was entitled to rely on that, and that no purpose would have been served by its repeating the conclusions of the FTT. That submission is wrong in principle.

“Parliament has provided two opportunities for an unsuccessful party to seek permission. That party is entitled to have his application considered independently by each of the FTT and the UT.

“He must be able to tell from the reasons given, even if they are stated briefly, that each body has exercised its jurisdiction. If the UT had considered all the grounds and reached the same conclusions as the FTT, and for the same reasons, it could simply have said that it had done just that.”

The court accordingly held that the UT made a “material error of law”.

Lady Carmichael concluded: “I have concluded that there is a real possibility that, had the UT considered all of the grounds of appeal to it in the way it ought, it would  have granted permission to appeal.”