The Court of Appeal (CoA) reminded us that "plausibility" alone is not sufficient; the Tribunal must explain why an account is plausible, particularly in light of factors that might suggest otherwise.
Background:
QY, a 35-year-old Vietnamese national at the time of the First-tier Tribunal's (FTT) decision, sought asylum or humanitarian protection in the UK, claiming he is at risk of persecution or serious harm if returned to Vietnam due to his alleged encounters with corrupt military officials.
QY's presence in the UK began somewhat unexpectedly. He was a crew member aboard a Costa Italian cruise ship that unexpectedly docked in Dover on 9th September 2017. QY left the ship and did not return, and so was promptly reported to the UK Border Force as a "seaman deserter".
On 5th June 2020, he was arrested in a car and, when questioned, QY provided the officers with a false name and a false date of birth. Consequently, he was arrested as an illegal entrant and on suspicion of cannabis production. The suspicion was further confirmed when they found another property where a substantial quantity of cannabis was discovered, along with significant amounts of cash.
On 3rd December 2020, QY, having initially pleaded not guilty, changed his plea at a stage where he was still eligible for a 20% reduction in his sentence for an early guilty plea. He was convicted of being "concerned in the production of cannabis," a Class B drug. The Court accepted that QY played a "significant role" in this operation, driven by the expectation of substantial financial gain and involving a managerial aspect in overseeing the properties used for the cultivation. He was ultimately sentenced to imprisonment for 3 years and 7 months.
On 2 June 2021, the appellant was served with a notice of a decision to deport him made pursuant to Section 32(5) of the UK Borders Act 2007. QY lodged a claim for protection and human rights on 22nd June 2021, supported by a statement he had prepared on 10th June 2021. While in immigration detention, QY submitted a Rule 35 claim on 5th May 2022, providing a medical practitioner with details of his asylum and protection case. The appellant was given a screening and substantive asylum interview on 10 May 2022, whereupon he presented two medical documents from Vietnam, one dated November 2016 regarding an attack he was the victim of, and another dated December 2016 about right knee pain.
QY was later released on immigration bail, either on 15th June 2022 or 18th July 2022. The Secretary of State rejected the appellant's claim for asylum or humanitarian protection in a letter dated 3 October 2022. A Deportation Order was also issued on 3 October 2022.
The FTT found QY credible, despite acknowledging "serious concerns" about his credibility. The Judge applied the lower standard of proof for asylum claims and found QY's explanations to be "plausible". The Upper Tribunal (UT), however, found the FTT's decision to contain material errors of law, particularly regarding the credibility assessment. The UT remitted the case for a new hearing.
Decision:
The majority of the CoA dismissed the appeal, agreeing with the UT that the FTT's reasoning for finding the appellant credible, despite acknowledging "serious concerns", was inadequate and the case should be remitted back to the FTT for a new decision. The minority, represented by Holroyde LJ, believed the UT overstepped its role by engaging in excessive scrutiny of the FTT's judgement, essentially disagreeing with its factual assessment, although this does not constitute a basis for finding an error in law. He believes the FTT Judge reached conclusions she was entitled to reach, and that the reasons for her decision were clear.
Lord Justice Dingemans acknowledges that the FTT Judge correctly bore in mind the lower standard of proof applicable in asylum and protection claims when rejecting some of the Secretary of State's initial criticisms, although the findings were simply inadequate. Lord Justice Dingemans pinpoints the central issue, specifically that the FTT Judge stated there were "serious concerns" about credibility, but then found the appellant's account "plausible" based on internal consistency and not being implausible. This, he argues, "begs the question" of just what the FTT Judge took into account to overcome those serious credibility concerns.
Implications:
This case has significant implications, particularly in terms of judicial review and the standard of reasoning required in Tribunal decisions. The majority decision emphasises that when a Tribunal Judge identifies "serious concerns" about a claimant's credibility, they cannot simply state that the claimant's account is "plausible" without providing a clear and detailed explanation of how those concerns were overcome.
Although the standard of proof is lower in asylum cases, the standard of reasoning is still very high. Having appropriate evidence is, therefore, crucial.
