United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2024-004204 UI-2024-004209   First Tier Tribunal: PA/52646/2023 LP/02961/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 21 March 2025

 

Before

 

UPPER TRIBUNAL JUDGE BRUCE

 

Between

 

QVN (Vietnam)

(anonymity order made)

Appellant

and

 

Secretary of State for the Home Department

Respondent

 

AND

 

Secretary of State for the Home Department

Appellant

and

 

QVN (Vietnam)

(anonymity order made)

Respondent

 

Representation :

 

For QVN: Mr Schwenk, Counsel instructed by Jackson Lees Group Limited

For the Secretary of State: Mr Diwnycz Senior Home Office Presenting Officer

 

 

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 him or any member of his family. Failure to comply with this order could amount to a contempt of court .

 

Heard in Bradford on the 20 ^th November 2024

 

 

DECISION AND REASONS

 

1.              The Appellant is a national of Vietnam born in 1983. On the 7 ^th August 2024 the First-tier Tribunal dismissed his appeal on protection grounds, but allowed it on human rights grounds with reference to Article 8 ECHR.

 

2.              Both the Appellant, as he was before the First-tier Tribunal, and the Secretary of State, have been granted permission to appeal to this Tribunal against the parts of the First-tier Tribunal decision which went against them. Permission was granted by First-tier Tribunal Judge Boyes on the 6 ^th September 2024. For the sake of convenience in this decision I shall refer to the parties as they were identified before the First-tier Tribunal.

 

3.              There has been a significant delay between me having heard this case and this decision being promulgated. This has been caused by my having had an accident just a few days after the hearing in November 2024, which has necessitated a lengthy period off work. May I offer my sincere personal apologies to the parties for this delay and any inconvenience caused.

 

 

The Article 8 Decision

 

4.              The Secretary of State complains that the First-tier Tribunal erred in law in allowing the appeal on Article 8 grounds.

 

5.              The point made in the decision of the First-tier Tribunal was a simple one. The Competent Authority for assessing claims of modern slavery had concluded that there were reasonable grounds to accept that the Appellant had been trafficked for the purpose of labour exploitation. At the date of the appeal before the First-tier Tribunal the Competent Authority had not yet made a 'conclusive grounds' decision. The First-tier Tribunal had regard to legislation sections 61(2) and (3) :of the Nationality, Asylum and Borders Act 2022 [1]:

 

61 Identified potential victims of slavery or human trafficking: recovery period

(1) This section applies to a person (an "identified potential victim") if-”

(a) a decision is made by a competent authority that there are reasonable grounds to believe that the person is a victim of slavery or human trafficking (a "positive reasonable grounds decision"), and

(b) that decision is not a further RG decision (as to which, see section 62).

(2) Subject to section 63(2), the identified potential victim may not be removed from, or required to leave, the United Kingdom during the recovery period.

(3) The "recovery period", in relation to an identified potential victim, is the period-”

(a) beginning with the day on which the positive reasonable grounds decision is made, and

(b) ending with whichever of the following is the later-”

(i) the day on which the conclusive grounds decision is made in relation to the identified potential victim;

(ii) the end of the period of 30 days beginning with the day mentioned in paragraph (a).

 

6.              These sections clearly provide that a person cannot be removed from the United Kingdom whilst there are reasonable grounds to believe that he is a victim of trafficking, and a conclusive grounds decision is yet to be taken.

 

7.              In determining his human rights appeal the First-tier Tribunal noted that this was precisely the situation in which the Appellant found himself. Although there were no other reasons to find that it was disproportionate to refuse him leave, at the date of the appeal before the First-tier Tribunal the decision plainly did constitute an unlawful interference with the Appellant's private life in this country. He fell into a class of people that parliament had legislated must not be removed because to do otherwise would be to breach the United Kingdom's international commitments.

 

8.              The Secretary of State now submits that this was an "irrelevant" consideration, that there was no power to allow an appeal on trafficking grounds and that the First-tier Tribunal erred in law.

 

9.              As Mr Diwnycz quite rightly conceded before me, the author of the grounds entirely misunderstands the First-tier Tribunal's reasoning. It has not allowed the appeal on "trafficking grounds". It allowed the appeal on Article 8 grounds, rightly finding that it would be an unlawful interference with the Appellant's private life to refuse to grant him leave in accordance with legislation designed to protect him and enable him to recover from his experiences. There is no error at all in the Tribunal's approach.

 

 

The Protection Claim

 

10.          The basis of the Appellant's protection claim was that he had started experiencing problems in Vietnam after he started attending a church there in 2013. Two Catholic protestors had been arrested by plain clothes security officials and there had been a demonstration calling for their release. The police raided the Appellant's home and during a struggle he had been pushed into the cooking fire and as a result had suffered severe burns, resulting in him being hospitalised for two months. His parents had been forced to borrow money from the bank in order to pay for his treatment. When they failed to keep up with the repayments they lost their home. When the Appellant got out of hospital he stayed with a neighbour. He was subsequently arrested on four occasions. On each arrest he was held for no more than a day and questioned about his involvement in anti-government protests. Although he was not subject to any physical harm he grew frightened of what might happen next so he borrowed some money from loan sharks in order to fund his departure from Vietnam. He left the country in September 2019 and has never paid that money back. He now fears retribution from the loan sharks, as well as the continued interest of the Vietnamese security services.

 

11.          Much of what the Appellant had to say about his past was accepted by the First-tier Tribunal. It accepted on the lower standard of proof that he had fallen into the fire during an altercation with security officials in his home, and that he was subsequently arrested and questioned on four occasions, the last of which was in 2018. It accepted that he has fallen into debt as a result of these events, and that should be return to his home area, he would probably still be at risk from the loan sharks there.

 

12.          The Tribunal did not however accept that these facts demonstrated that the Appellant has a well-founded fear of persecution in Vietnam today. He has never been charged and there is no warrant for his arrest. He was never ill-treated during his detentions, which is to be contrasted with the evidence relating to those who are considered to be of real adverse interest to the Vietnamese authorities. Although the loan sharks would obviously wish to visit retribution on the Appellant for his failure to repay his debt, the evidence did not demonstrate that these individuals would have the ability to locate the Appellant should he internally relocate within Vietnam. He did not know who they were and so could not say that they were part of any large organised gang. On his own evidence his parents have moved to the South of the country and now live there without any difficulty. The Appellant could simply move to the south of the country where he could live with his parents. He speaks the language and there would be no practical obstacles that would render internal relocation unduly harsh. The Tribunal's risk assessment concludes: "I am satisfied that there is no real risk of being re-trafficked despite the outstanding debt, his limited education, and his current mental health issues".

 

13.          The Appellant appeals against that decision on the following grounds:

 

i)                The Tribunal erred in fact when it recorded that the Appellant does not know who the loan sharks were. In his statement he describes them as being known as the "black society";

 

ii)              The conclusion that the Appellant would not be at risk of being re-trafficked is unreasoned, and cannot stand in light of the fact that several of the known risk factors for trafficking are present in this case.

 

14.          I am not persuaded that there is any merit in ground (i). The grounds refer to the following passages from the Country Policy Information Note (CPIN) on Vietnam published in January 2023:

 

4.4.3. The International Institute for Asian Studies noted in an article in their spring 2021 newsletter that:

 

'Male moneylenders operate in gangs, which people commonly refer to as giang h ồ [outlaw], xã h ội đen (lit.: 'black society'; meaning gangster, or mafia) and t ụi H ải Phòng (lit.: 'gang from H ải Phòng', a coastal city in Northern Vietnam popularly considered a hotbed of criminality). These gangs cultivate a reputation of being reckless, belligerent and cold-hearted and, in some cases, display tattoos, fancy vehicles, flashy jewellery, and stacks of cash on social media. Some of these gangs use pawnshops and rental and wholesale businesses as fronts for their operations. They lend money to a range of borrowers whom they recruit through social networks and aggressive marketing...

 

4.4.5 The 2022 DFAT report noted that:

 

'While limited information is available about loan shark victims, DFAT was able to ascertain from in-country sources that gangs in general have national and international reach, sometimes in the form of informal networks rather than gangs. It is not clear if those gangs are involved in loan sharking but, if they are, the threat of violence could exist in different parts of the country...

 

15.          Mr Schwenk submitted that these passages confirm what the Appellant has said about the identity of the particular men whom he borrowed money from in his home area, and further that the CPIN makes clear that this gang would have national 'reach' throughout Vietnam. I am unable to agree. It seems to me clear from the text of the CPIN read as a whole that 'black society' is not the name of a particular gang. It is rather a colloquial expression to denote anyone involved in this practice, akin to the use in English of the term 'black market'. The fact that the Appellant identified the men whom he borrowed money from as being 'black society' is basically the same as him saying they were loan sharks or moneylenders. The First-tier Tribunal did not, in my view, err in fact when it said that he was unable to identify them more specifically than that.

 

16.          The reasons for the Tribunal's decision are clear. In respect of the potential risk from the 'black society' to whom he still owes a debt it accepted that they would probably still want their money back, and if he could not pay it that there would be a risk of harm. Any claim on that basis was however defeated by the fact that the Appellant could, as his parents have done, relocate to another part of Vietnam. Even if, as Mr Schwenk submits, it is reasonably likely that these 'black society' moneylenders have informal networks which enable them to locate people, there is nothing to suggest that they would today use such networks to look for a man who borrowed some money from them six years ago. The gang would have no means of knowing that he had ever come back to Vietnam and the evidence does not support the suggestion that they would be constantly 'scanning' the whole country for everyone who ever borrowed any money from them and failed to repay it. As for the risk of retrafficking in general, each case is fact-specific. It is true that the Appellant's case bears several of the features identified in the CPIN as potential risk factors for re-trafficking: he owes money, has few skills and has suffered from mental ill health. The Tribunal specifically recognises these risk factors in its assessment. What it does not accept is the contention that the Appellant would be unable to re-establish contact with his family and relocate in safety to the south of the country. Living with his family in a new city would mean that the pressures which led him into contact with moneylenders and traffickers would be absent. In all the circumstances the Tribunal was entitled to conclude that it would not be unduly harsh for the Appellant to relocate along with his family.

 

 

Decisions

 

17.          The Secretary of State's appeal is dismissed. The decision of the First-tier Tribunal in respect of the human rights grounds is upheld.

 

18.          The Appellant's appeal is dismissed. The decision of the First-tier Tribunal in respect of the protection grounds is upheld.

 

19.          The Appellant is a victim of trafficking and as such there must be an order for anonymity.

 

 

 

Upper Tribunal Judge Bruce

Immigration and Asylum Chamber

10 ^th March 2025