Upper Tribunal Allows Asylum Appeal Due to Material Error of Law

OUTCOME: Allowed

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005387 First-tier Tribunal No: PA/50383/2024 [NAME] & Reasons Issued: On 13th of March 2026 Before DEPUTY UPPER TRIBUNAL JUDGE [APPELLANT]) Appellant and THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent Representation: For the Appellant: [redacted] For the Respondent: [redacted] Heard at Field House on the 11th March 2026 Order Regarding Anonymity Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 the appellant is granted anonymity. © CROWN COPYRIGHT 2026

Appeal Number: UI-2025-005387 First-tier Tribunal No: PA/50383/2024 No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead member of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND

REASONS Introduction 1. The Appellant is a citizen of Vietnam. The Respondent refused his protection claim on the 27th December 2023 and his appeal against that refusal was dismissed by First-tier Tribunal McClaren on the 3rd October 2025. Upper Tribunal Judge Bulpitt granted permission to appeal against Judge McClaren’s decision on the 16th December 2025. Hence the matter came before me. The appellant’s case 2. The essence of the appellant’s claim before the First-tier Tribunal was that, whilst living with his parents in Nghe An Province, he participated in a group demonstration and petition of the [NAME] for compensation in respect of environmental damage adversely affecting the local fishing industry. He was consequently summonsed, detained, questioned, and ill-treated by the police. Following his release, he again demonstrated and petitioned the [NAME] for compensation. This led to him receiving a second police summons. Given his previous experience of police detention, he fled to the Dak Lak Province where he remained for about two years before returning to Nghe An Province, hoping that things may have “died down’ in the meantime [paragraph 32 of his first witness statement]. He stayed with relatives at a neighbouring commune for about three months, only visiting his parents at night. In February 2020, his parents drove him to Hanoi Airport where he was met by an agent who assisted him in leaving the country. [NAME] subjected him to forced labour in Ukraine until, in July 2021, they forcibly transported him across central Europe, France, and the English channel. He claimed international protection on arrival in the United Kingdom on the ground that he fears that he will be persecuted by the authorities in Vietnam due to his political activities prior to him leaving, and/or that he will be ill-treated and re-trafficked by those who trafficked him to Europe. Findings of the First-tier Tribunal 3. Judge McClaren found it, “wholly implausible”, that the appellant would (i) be able to evade the police for three years whilst living, “a mere 10 kilometres from the family home” [20], and (ii) not have contacted his family in order to 2

Appeal Number: UI-2025-005387 First-tier Tribunal No: PA/50383/2024 check whether they had received any further arrest warrants for him during his absence [23]. Moreover, the appellant (i) only explained how he was able to leave Vietnam without coming to the attention of the authorities after his earlier failure to do so had been highlighted by the author of the Reasons for Refusal Letter [21], and (ii) had given an inconsistent account of his family members in Vietnam [22]. These were both matters that “may be an indication that he is not speaking the truth”. Finally, it was, “not reasonably likely to be true”, that the police had only written to the appellant’s parents in April 2025 concerning his failure to respond to a summons that he claimed had been issued some eight years’ earlier [24].

4. Judge McClaren did however find that the appellant had been a victim of trafficking. She nevertheless concluded that, “he would not be at risk of being re-trafficked on return to Vietnam”, and that, “his extended family and work experience [would act] as strong protective factors to keep him out of conditions of depravation and poverty” [32]. Alternatively, even if the appellant was at risk in his home area, this could be avoided by him seeking the protection of the [NAME] or relocating to a different area of Vietnam [33, 34]. The grounds of appeal.

5. The grounds of appeal included a running critical commentary of the judge’s reasoning, including criticism of the judge’s application of the burden and standard of proof [7 to 10 and 13 to 14], her treatment of the appellant’s failure to detail in his asylum interview the means of his departure from Vietnam [11], and her assessment of the appellant’s supposed account of an extended period of police inactivity in pursuing their investigation [12] and of the risk of the appellant being re-trafficked on return [14 to 15]. However, Judge Bulpitt concluded that these “narrative grounds” did not identify an arguable error of law and merely disagreed with the judge’s assessment of the evidence [4]. Mr [APPELLANT] suggested at the hearing that these observations did not amount to a refusal of permission to appeal on these grounds. He did not however seek to renew the application for permission to appeal on them after I indicated that I disagreed.

6. The sole ground of appeal upon which Judge Bulpitt granted permission to appeal concerns the judge’s finding that it was “wholly implausible” for the appellant’s whereabouts not to have been discovered by the Vietnamese police whilst he was in hiding for three years, it being found arguable that this finding was based upon (a) a misunderstanding of the evidence as to appellant’s proximity to his parents’ home during that period, and (b) 3

Appeal Number: UI-2025-005387 First-tier Tribunal No: PA/50383/2024 procedural unfairness in not allowing the appellant an opportunity to address the same in cross-examination. Analysis 7. I am not persuaded that the principle of fairness required the appellant to be afforded an opportunity ‘to explain’ why the Vietnamese police had not located him during the three-year post-arrest period during which he claims to have continued residing in Vietnam. This is because witnesses cannot be expected to account for the actions (or inactions) of others. That said, the appellant had made it clear that he had spent two of those years hiding in Dak Lak Province [see paragraphs 30 to 32 of his witness statement, signed on the 5 th April 2024] and further investigation of this claim would have revealed (as Ms [NAME] accepted) that Dak Lak Province lies some 1103 kilometres distant from the family home. The judge’s erroneous assumption that the appellant had been living “a mere 10 kilometres away from the family home” for the whole of this period [paragraph 20 of the Decision] appears to have been based upon a misreading of the appellant’s reply to question 76 of his asylum interview. However, when that reply is read in context, it becomes clear that the appellant was there referring to a period of only 2 or 3 months after he had returned from Dak Lak Province to his home area, because he “couldn’t be in hiding for ever” [see reply to question 75].

8. Ms [APPELLANT] accepted that upon a proper reading of the appellant’s account of his time spent in hiding, the failure of the Vietnamese police to locate him could not sensibly be described as “wholly implausible”. She nevertheless submitted that given the judge’s other sustainable factual findings, this single error did not materially affect the safety of the overall decision. I disagree. As Mr [APPELLANT] pointed out, each the judge’s findings were based upon the supposed implausibility of the [NAME] account. In the case of two of those findings, the judge merely found that the matters in question, “may be an indication that he is not speaking the truth”, whilst in the case of a third he found the appellant’s account was, “not reasonably likely to be true”. There were however only two instances in which the judge went so far as to find that the appellant’s account was, “wholly implausible”, of which the appellant’s account of his time in hiding was one. I find it impossible to conclude that had the judge properly appreciated the nature of the appellant’s case in this regard the outcome of the appeal would necessarily have been the same.

9.

I therefore conclude that the judge made a material error of law by making a critical finding of fact that did not accord with the evidence. Both representatives agreed that in these circumstances there was no alternative to 4

Appeal Number: UI-2025-005387 First-tier Tribunal No: PA/50383/2024 setting aside the decision of the First-tier Tribunal and remitting it for complete rehearing. Notice of Decision The appeal is allowed. The decision of the First-tier Tribunal is set aside. The appeal is remitted for complete rehearing before a First-tier Tribunal judge other than Judge McClaren. [NAME]: 13th March 2026 Deputy Judge of the Upper Tribunal Immigration and Asylum Chamber 5