Vietnamese victim of human trafficking successfully challenges asylum appeal refusal

About this case:

• Citation:
  [2022] CSOH 48
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Ericht

Petitioner HHP, a victim of human trafficking, argued that the First-tier Tribunal had erred in concluding that the Vietnamese authorities would not be aware of his political activities in the UK. The Home Secretary originally refused his asylum application in September 2018 and opposed the petition. 

The petition was heard by Lord Ericht, with Winter, advocate, appearing for the petitioner and Crabb, advocate, for the respondent. 

Sur place activities 

On 18 October 2016, the petitioner became known to the authorities after a police visit to a nail bar. The Home Office notified his solicitors that the Competent Authority had concluded he was a victim of human trafficking on 28 September 2018. He claimed asylum on the basis that he was at real risk of being re-trafficked on return to Vietnam due to his political activities there and sur place activities in the UK. 

After his claim was refused by the Home Secretary in September 2018, the petitioner appealed to the First-tier Tribunal. Before the FtT he led evidence, including photographic evidence, that he had attended a political demonstration outside a church in Edinburgh in March 2017 and another outside the Vietnamese Embassy in London in April 2017.  

The FtT refused the petitioner’s appeal on 24 January 2021. Permission to appeal was refused by the Upper Tribunal, which concluded that the immigration judge was open to conclude that there was no reliable evidence that the Vietnamese authorities would be aware of the appellant’s activities in the UK. 

It was argued by the petitioner that the FtT had arguably erred in law when assessing whether the Vietnamese authorities would be aware of his political activity. The FtT had concluded that there was no reliable evidence that the authorities would be aware of his sur place activities, which it described as minimal, when this conclusion was not open to it on the available evidence. 

Exclusion of evidence 

Lord Ericht, in his opinion, observed: “Much time was taken up at the hearing before me in looking at photographs which had appeared on-line. The First-tier Tribunal held that the petitioner was not recognisable in the photographs which had appeared on-line of the church demonstration or the Embassy demonstration. Having examined the photographs in detail, it seems to me that it is possible that another judge might have come to a different view.” 

He continued: “However, the on-line photographs were not the only evidence going to the question of whether the Vietnamese authorities were aware of the petitioner’s attendance at the Embassy demonstration. The First-tier Tribunal accepted that the petitioner attended at the demonstration. If a person takes part on a demonstration outside a country’s embassy then one possible inference from that fact might be that that country’s authorities would be aware of this.” 

Assessing the FtT’s approach to the evidence, he said: “In coming to the conclusion that there was no reliable evidence that the authorities would have been aware of the petitioner’s attendance at the Embassy demonstration, the First-tier Tribunal focussed only on the online photographs to the exclusion of the evidence of attendance at the demonstration. The First-tier Tribunal gave no consideration as to whether the Vietnamese authorities would have been aware of his attendance at the demonstration otherwise than by looking at photographs on-line.” 

He went on to say: “The First-tier Tribunal does not explain why the petitioner’s attendance at the Embassy demonstration is not reliable evidence that the Vietnamese authorities would have been aware of his presence there. In my opinion it is arguable that by concluding that there was no reliable evidence that the Vietnamese authorities would have been aware of his attendance at the Embassy demonstration without taking into account its finding that he was present, the First-tier Tribunal has erred in law in leaving out a relevant matter and reaching a conclusion on the facts which is irrational.” 

Lord Ericht concluded: “It is of course not for me to express any opinion as to whether that arguable argument will succeed: all I require to consider is whether it is arguable. I find that it is, and accordingly that the Upper Tribunal has failed to identify that the First-tier Tribunal has arguably made an error of law.” 

The decision of the Upper Tribunal refusing permission to appeal was therefore reduced.