Court of Appeal dismisses Vietnamese humanitarian protection appeal

The Court of Appeal has upheld a decision of the Upper Tribunal to allow the Home Secretary’s appeal against a First-tier Tribunal decision allowing the appeal of a Vietnamese national on humanitarian protection grounds. The court held that the First-tier Tribunal had not given sufficient reasons for finding the appellant to be credible. The case is QY (Vietnam) v Secretary of State for the Home Department [2025] EWCA Civ 607.

Background

The appellant is a Vietnamese national who arrived in the UK as a crew member of a cruise ship. He left the ship and did not return. In June 2020 he was encountered by the police and arrested as an illegal entrant to the UK and for suspected production of cannabis. On 3 December 2020 he was convicted and sentenced to imprisonment for three years and seven months.

He was served with a notice of decision to deport on 2 June 2021 and he claimed asylum and made a human rights claim on 22 June 2021. He gave evidence that he had been blackmailed by military officials in Vietnam in relation to his non performance of compulsory military service, which the appellant said he was exempt from. When he stopped making the payments after a few years, he was beaten and threatened by the men.

The appellant’s claim was rejected on 3 October 2022, noting that military service was compulsory but that the appellant was eligible for an exemption. The account of the threats, violence and payment to military officials was not accepted and the decision maker noted that the appellant’s credibility had been damaged because he had not claimed asylum until encountered by immigration enforcement, as well as the fact that he had not claimed asylum in countries the cruise ship had stopped at before reaching the UK. A deportation order was made on the same day.

The appeal hearing took place on 12 July 2023. The First-tier Tribunal considered that the appellant had rebutted the presumption that he was a danger to the community, having committed a “particularly serious crime” as set out in section 72(2) of the Nationality, Immigration and Asylum Act 2002.

The tribunal found many elements of the appellant’s account to be plausible however noted that there was a lack of supporting evidence. The judge found that the failure to provide witness statements from the appellant’s family damaged his credibility. The tribunal accepted the reasons for the appellant not claiming asylum earlier and placed little weight on that.

Overall, it was concluded that, to the lower standard of proof, the appellant’s claim was credible. The asylum claim was rejected because the tribunal found that there was no convention reason, but the appeal was allowed on humanitarian protection grounds.

The Home Secretary appealed. The Upper Tribunal dismissed grounds relating to the issue of whether the appellant was a danger to the community and the failure to take the criminal conviction expressly into account in the credibility assessment. However the Upper Tribunal found that there were other errors of law in the credibility assessment and in not addressing sufficiency of protection. The First-tier Tribunal’s decision was set aside.

The Court of Appeal 

The appellant appealed to the Court of Appeal, which upheld the decision of the Upper Tribunal by two to one. The court said [at 60]:

The fact that there is, for good reason, a lower standard of proof in asylum and protection claims, does not obviate the necessity to explain how “serious concerns” about the appellant’s credibility have disappeared, so that explanations, which might on their own have been plausible, remain plausible. In my judgment, the Secretary of State, as the losing party, was entitled to reasons “in sufficient detail to show” what had led to the decision, see Fage at paragraph 115. In this case the Secretary of State was entitled to know why, notwithstanding the serious concerns about credibility raised by the absence of evidence of requests for the 2010 recruitment order and the absence of evidence from family members, the appellant’s account, which depended only on the appellant’s evidence, was plausible.

Holroyde LJ did not agree with the majority’s decision and referred to authorities “emphasising the need for the UT on appeal to show appropriate restraint before interfering with a decision of the FTT”. The judge said that the First-tier Tribunal judge was entitled to reach the conclusions she did, albeit that they might have been better expressed, and that the Upper Tribunal’s decision amounted to a disagreement with the decision, not an error of law.

The case will now return to the First-tier Tribunal for a fresh hearing. 

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