QY (Vietnam) v Secretary of State for the Home Department [2025] EWCA Civ 607

[2025] EWCA Civ 607Case No CA-2024-000325
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)
Deputy Upper Tribunal Judge Monson
Case No. UI-2023-004635
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13/05/2025
Before
LORD JUSTICE HOLROYDELORD JUSTICE ARNOLDLORD JUSTICE DINGEMANS
Between
QY (VIETNAM)AppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Pierre Georget (instructed by OTS Solicitors) for AppellantBen Keith (instructed by the Treasury Solicitor) for RespondentHearing Hearing date: 2 April
Approved JudgmentThis judgment was handed down remotely at 12, noon on 13.05.2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Introduction

[1]This appeal raises the issue of whether the Upper Tribunal (Immigration and Asylum Chamber) (“Upper Tribunal”) was right, in the decision dated 15 December 2023, to find a material error of law in the decision dated 4 August 2023 of the First-tier Tribunal (Immigration and Asylum Chamber) (“FTT”). The Upper Tribunal found that the FTT had failed to engage with the respondent Secretary of State’s reason for disbelieving the appellant’s account and gave inadequate and internally inconsistent reasons for finding the appellant credible. As a consequence of that finding the Upper Tribunal set aside the decision of the FTT, did not preserve any findings of fact, and remitted the matter to be redetermined in the FTT. Relevant background[2]The appellant, a citizen of Vietnam, claims to be at risk of persecution or serious harm if returned to Vietnam. As this issue has not yet been finally determined, he has the benefit of anonymity and has been referred to in all of the proceedings (before the FTT, Upper Tribunal and this court) as QY. The appellant was, at the time of the decision in the FTT, a 35 year old man.[3]The appellant was a crew member of a cruise ship which docked (it seems unexpectedly) in Dover on 9 September 2017. The appellant left the ship and did not return for the sailing at 1900 hours. The appellant was reported to the UK Border Force as a seaman deserter on the same day.[4]On 5 June 2020 the appellant was stopped in Surrey in a car by the police. The car had been linked to a property where it was known that cannabis was being grown, and electricity was being diverted from the mains. The appellant gave a false name and false date of birth to the police. He was arrested as an illegal entrant to the UK, and for suspected production of cannabis. The appellant’s two phones were seized, and details on the appellant’s phones led the police to another property where cannabis was found, together with significant sums of money, and two further co-defendants were located.[5]On 3 December 2020, in the Crown Court at Guildford, the appellant was convicted, having changed his plea at a time when he was entitled to a discount of 20 per cent credit for plea, of being concerned in the production of cannabis, a class B drug between 1 April and 7 June 2020. It was accepted that he had a significant role in the production of the cannabis because of his expectation of a significant financial advantage, and his managerial role in looking after the properties involved in the operation. The appellant was sentenced to imprisonment for 3 years and 7 months.[6]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 (the 2007 Act). On 22 June 2021 the appellant made a protection and human rights claim, relying on a statement dated 10 June 2021. Solicitors represented the appellant in making the claim.[7]On 5 May 2022 the appellant was in immigration detention and submitted a Rule 35 claim, and gave details of his asylum and protection claim to the doctor.[8]The appellant was given a screening and substantive asylum interview on 10 May 2022. The appellant handed over a surgical medical report headed “Exson Department of Health of HCMH Exson International Clinic”, dated 9 November 2016 and an outpatient medical record from Phu Nhuan District Hospital, Ho Chi Minh City dated 10 December 2016.[9]The report dated 9 November 2016 recorded the time and date of examination as 20:15 on 9 November 2016, and went on:
“the patient states that at 19:30, while participating in traffic, he was hit by a stranger and attacked by a sharp object (suspected knife) in the thigh, causing the patient to fall to the street, causing pain in the leg (R); restriction of knee joint movement. The patient was taken to Exson International Clinic by family members at 20:15 on the same day.”
The diagnosis was recorded as “multiple soft thigh injury (R); with a 1.5 cm wound on the lower third of the outer thigh (R).” It was recorded that there was “outpatient treatment from November 10, 2016, to November 17, 2016”.[10]The report dated 10 December 2016 gave the reason for hospitalisation as “right knee pain”. It was recorded “while riding a bicycle on the road, the patient injured his right leg, then could not stand up, limited movement of the right knee joint. Hospitalised at Phu Nhuan District Hospital, Ho Chi Minh City”. The initial diagnosis was “monitor for anterior cruciate ligament rupture + right patella cartilage damage”. Treatment was a right knee zimmer brace. The outpatient treatment was recorded to be from 10 December 2016 to 17 December 2016.[11]Mr Thanh, the appellant’s cousin, was recorded as the contact name on both reports. The appellant also handed over a military certificate of a martyr’s award to the appellant’s father.[12]The appellant was released on immigration bail on either 15 June 2022 or 18 July 2022. The claim for asylum and human rights protection[13]The appellant’s claim for asylum, or humanitarian protection, was made on the basis that he feared for his life on return to Vietnam. The appellant said that in 2010 (when he was aged 21 years, his 22nd birthday being in February 2010) he had received papers requiring him to do his national service. The appellant said that he was a student at the time and should have been exempt, and his father had died as a result of his military service and the family had a martyr’s certificate, which was a further basis on which the appellant should have been exempt from national service. The appellant said that five men came to his house, two of whom were in military uniform. He was told that he had broken the law, even though the appellant showed them his father’s certificate. He was handcuffed and taken to the recruiting officer’s house. He was taken to an interview room, and hung upside down for two days and beaten. He was told that he would be released if he paid US$1,500 to the officers each year. The appellant agreed to make the payment, and he was released. The appellant did not inform the police about this, because the head of the police was the cousin of the military recruiter.[14]In 2012 (when he was aged about 24 years) the appellant obtained employment on the Costa Italian cruise ship. He made annual payments to the recruiting officer, visiting the recruiting officer’s house each December.[15]In 2016 (when he was aged about 28 years) the appellant said that he decided to stop making the payments because he felt that he had done nothing wrong, and he wrote a letter of complaint to the provincial authorities and military officials. The appellant said that after he sent the letter he was arrested and beaten again. His brother pleaded with the men to release him, and said that the payments would be made. The men released him, but the appellant did not make any further payments and fled to Ho Chi Minh City. He waited to get on his cruise ship, but the military officials caught up with him because they knew he would be returning to the cruise ship. The appellant was beaten again, threatened to be killed, and was stabbed in his leg, and was told to pay double the money. The appellant went to hospital, where he was for seven days, and said he had been attacked by a stranger. The appellant relied on the first hospital record. The appellant’s cousin informed the police, but the police were unable to help because they did not have enough evidence.[16]The appellant did not make the payment in December 2016. He was beaten again. He went to hospital and told hospital staff that he had fallen off his bicycle. The appellant relied on the second hospital record.[17]On 13 April 2017 the appellant left Vietnam on the cruise ship. He had not made payments, but the men had asked his brother to pay instead and had threatened his brother. The appellant feared that if he was returned to Vietnam, he would be beaten, killed or charged for not complying with what the military men said. He left the cruise ship in the UK. The decision letter[18]The Secretary of State rejected the appellant’s claim for asylum or humanitarian protection by letter dated 3 October 2022. Based on a Country of Origin Information report dated 9 August 2013, the Secretary of State accepted that military service was compulsory for men aged 18 to 25 years, but recorded that the appellant could officially avoid recruitment because he was in education at the age of 21 when an order for his military service was issued, and because his father had died from an injury incurred during military service in defence of the country, evidenced by the martyr’s certificate.[19]The Secretary of State recorded that the appellant had neither provided any evidence of the recruitment order issued in 2010, nor evidence of the payment of bribes to the purported recruiting authority. The appellant said that his cousin had reported to the police that the appellant had been stabbed in Ho Chi Minh City, but there was no evidence of a police report. The appellant claimed that he had been treated in hospital for assault, but had told staff that he had fallen off his bicycle, but the Secretary of State did not accept that the hospital staff would have accepted the explanation, or that the medical report supported the appellant’s claim that he had been ill-treated. The Secretary of State did not accept that the appellant had been accused of, or fined for, evading military service, or had been ill-treated by authorities, corrupt officials or their associates. Further, the appellant’s credibility had been damaged by his failure to claim asylum in Italy or Norway, before the cruise ship reached the UK, and by the fact that he had delayed claiming asylum until he was notified of his liability to deportation. He had failed to demonstrate a reasonable degree of likelihood that he would be at real risk of persecution from authorities or corrupt military authorities. The appellant was notified of his right to appeal to the FTT against the decision to refuse his protection and human rights claim.[20]A deportation order was also issued on 3 October 2022. The proceedings in the FTT[21]The appellant appealed to the FTT. The appeal was heard on 12 July 2023 by FTT Judge Andrews (the FTT judge). The appellant was represented by counsel and the Secretary of State by a Home Office Presenting Officer. The appellant had made statements dated 10 June 2021 and 2 December 2022, and gave oral evidence and was cross-examined. There was a hearing bundle.[22]The FTT decision was dated 4 August 2023. As this case raises the issue about whether the Upper Tribunal was entitled to set aside the decision of the FTT, it is necessary to set out the decision of the FTT judge in some detail.[23]The FTT judge referred to the presumption under section 72(2) of the National, Immigration and Asylum Act 2002 (“the 2002 Act”), which part reflected article 33(2) of the Refugee Convention. If a person has been convicted of a particularly serious crime and sentenced to at least 2 years imprisonment, then that person is presumed to constitute a danger to the community unless the presumption is rebutted, which means that the person might be deported from the UK. The burden of rebutting the presumption is on the appellant, and the standard of proof is the balance of probabilities.[24]The FTT judge referred to the claims made by the appellant, for asylum under the Refugee Convention, alternatively for humanitarian protection and the rights to life and freedom from torture and inhuman or degrading treatment under articles 2 and 3 of the European Convention on Human Rights (“ECHR”). The appellant also claimed that deportation would infringe his rights protected under article 8 of the ECHR.[25]The FTT judge referred to the relevant legal framework. This included sections 32 and 33 of the 2007 Act which require the Secretary of State to deport a foreign criminal unless an exception applied. Relevant exceptions were that: deportation would breach the UK’s obligations under the Refugee Convention; and deportation would infringe rights protected by articles 2, 3 and 8 of the ECHR.[26]The FTT judge found that the appellant had been convicted of a particularly serious crime, but, considering all of the evidence, including the fact that he had been out of trouble since his release a year before, the appellant had shown that he was not a danger to the community.[27]The FTT judge then turned to findings of fact recording that “I have taken account of everything that I heard, and I have considered all the documentary evidence that I was referred to by the parties. I have carefully considered the evidence in the round …”. The FTT judge referred to the decision letter and the common ground that a 21 year old man would be obliged to undergo military service in Vietnam unless he had an exemption. Children of martyrs were exempt.[28]The FTT judge then turned to factors that did not materially damage the appellant’s credibility, recording that the Secretary of State had highlighted claimed inconsistencies and other problems with the appellant’s evidence. The judge recorded “however, reminding myself that I must apply the lower standard of proof, I find that none of the following materially damages his credibility”. The FTT judge found that it was plausible that a military recruiter might abuse his power, notwithstanding that the appellant had shown his father’s martyr’s certificate. The FTT judge found it reasonable for there not to be evidence of payment of bribes, and reasonably plausible that the appellant did not keep copies of his letters of complaint about being forced to pay bribes.[29]The FTT judge recorded that there was evidence that there was due process for those accused of draft evasion but, to the lower standard of proof, it was reasonably plausible that the appellant did not go to the police because the head military recruiter was the cousin of the town’s head of police.[30]The FTT judge recorded that the appellant had said that his cousin had gone to the police after he had been stabbed in Ho Chi Minh City but found that it was plausible that there was no written police report because the police had said it was not serious.[31]The FTT judge recorded that he said he spent 7 days in hospital after being stabbed in Ho Chi Minh City, but told hospital staff that he had fallen off his bike. The decision letter said it was not credible that the hospital staff would have accepted the appellant’s explanation, given that they would have known the difference between a traffic incident and a physical assault. The FTT judge said that this assumed that hospital staff would have considered it part of their role to challenge the explanation put forward by the appellant, and they might not have done. The FTT judge said he did not consider the appellant’s evidence so implausible as to damage his credibility.[32]The FTT judge considered that the appellant’s claim that he was taken to hospital by one of his attackers after he was attacked and beaten so that he would not tell the truth about what had happened, but left the appellant with a family member, was unreasonable, but the FTT judge said “reminding myself that I must apply to the lower standard of proof, I do not consider this so implausible as to damage the appellant’s credibility”.[33]The FTT judge then addressed matters that damaged the appellant’s credibility. This was the lack of supporting evidence, reminding herself by reference to TK (Burundi) v Secretary of State for the Home department [2009] EWCA Civ 40; [2009] Imm AR 488 at paragraph 16 that there was no need for corroboration but that where evidence to support an account is or should be readily available, the judge was entitled to take into account the failure to provide that evidence and any explanations for the failure. The FTT judge accepted that it was plausible that the appellant had not kept a copy of the 2010 recruitment order, but the appellant had told the judge that he had attempted to get an order from the Vietnamese authorities, and a copy of that request should have been available. The FTT judge concluded “in those circumstances, his failure to provide such evidence would be damaging to his credibility”.[34]The FTT judge also found that the failure to provide any witness statements from the appellant’s family in Vietnam, which would have been readily available to him, was damaging to his credibility.[35]The FTT judge then addressed sections 8(1), (4) and (5) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (“the 2004 Act”) which provides for behaviour to which the section applies to be taken account of “as damaging the claimant’s credibility”. Relevant behaviours included a failure to make a claim for asylum or human rights while in a safe country, and a failure to claim asylum before being notified of an immigration decision. There were two relevant behaviours to which the section applied. The first was a failure to claim asylum in Italy and Norway, which he had travelled through before coming to the UK. The second was a failure to claim asylum until after notification of a deportation decision. The FTT judge said “in deciding the level of damage to the appellant’s credibility I take particular account of the following” and set out the complaint on behalf of the Secretary of State that if the appellant’s life was in danger he would have made his problems known as soon as possible to appropriate authorities. The FTT judge then set out the appellant’s account that he had wanted to settle in Germany but “his contract ended early (before the ship reached Germany), so he instead chose to come to the UK, because he speaks English, and he had a friend here … I consider this plausible”. The FTT judge recorded that as the appellant was on a ship it was “plausible that he would not claim asylum in Norway or Italy, but would have stayed on the ship in the hope of reaching Germany. When that proved impossible, he left the ship in the UK …”. The FTT judge also considered reasonably plausible the explanation that the appellant believed that his family would be unable to work for the government in Vietnam if he claimed asylum here because the Vietnamese government would find out about the claim for asylum. The FTT judge said “taking all the above into account, I consider it appropriate to attach relatively little weight to the appellant’s failure to claim asylum sooner (whether in the UK, or in another safe country)”.[36]The FTT judge then turned, in paragraph 44 of the judgment under the heading “discussion and conclusions”, to her decision. The FTT judge identified “there are matters that raise serious concerns about the appellant’s credibility (for example, as referred to in paragraphs 37-43 above). However I must consider the evidence as a whole. Taken as a whole, I find a good level of internal consistency in the appellant’s evidence. To the lower standard of proof, I do not find the appellant’s account implausible. Having considered all the evidence in the round, I find, to the lower standard of proof, that these factors outweigh the fact that count against the appellant’s credibility. To the lower standard of proof, I find him credible.” The FTT judge went on to find, to the lower standard of proof, that the appellant was arrested, detained and beaten as he said in Vietnam, he was required to pay an annual fine, and that when he worked on cruise ships, his persecutors were aware when he returned to Vietnam.[37]The FTT judge then rejected the asylum claim because the appellant did not have a well-founded fear of persecution for a Convention reason. The FTT judge recorded the concession made on behalf of the Secretary of State that if the appellant rebutted the section 72(2) presumption, the appellant should win his appeal if the judge found him credible in relation to the claimed events in Vietnam, which the judge had. The FTT judge found that there was a real risk that, if the appellant returned to Vietnam, he would suffer serious harm, and degrading treatment and punishment. The appeal to the Upper Tribunal[38]The Secretary of State sought and was granted permission to appeal to the Upper Tribunal. The grounds of appeal engaged the issue of whether the appellant was a danger to the community, and included a ground that the FTT judge gave inadequate reasons for the findings made. A complaint was made that the FTT judge considered that the appellant was able to choose where to claim asylum, and failed to reflect on the fact that if there was a genuine claim the appellant would have made a claim as soon as he could. The judge granting leave to appeal identified that the grounds of appeal were not clear but that there were arguable grounds of appeal because the FTT judge had identified serious concerns about the appellant’s credibility, but then found him credible. In the Secretary of State’s Skeleton Argument complaint was made about the fact that the FTT judge appeared to find the appellant credible because he could name two persons, but did not engage with the admitted existence of due process in Vietnam in relation to conscription, and did not make any findings about why the appellant did not pursue proceedings under the Penal Code rather than pay bribes. Particular complaint was made about the findings in paragraph 41 and the finding that it was plausible that the appellant should choose to leave the ship when the contract ended before the ship reached Germany, and had failed to reflect on the appellant’s evidence that he did not claim asylum in Norway because he wanted to earn money, or that the appellant had been working on cruise liners for some 5 years before entering the UK. The Secretary of State complained that the FTT judge failed to factor in the fact that the appellant was working in a cannabis factory at the time when he was not claiming asylum.[39]The hearing of the appeal took place on 30 November 2023 before Deputy Upper Tribunal Judge Monson (“the Upper Tribunal Judge”). The appellant was represented by counsel and the Secretary of State was represented by a Senior Home Office Presenting Officer. The decision of the Upper Tribunal judge was dated 10 December 2023.[40]The Upper Tribunal judge set out the background, before summarising, in some detail, the decision of the FTT judge. The Upper Tribunal judge then summarised the grounds of appeal, the reasons for the grant of permission to appeal, the Secretary of State’s case following the grant of permission to appeal, and summarised the submissions made on appeal.[41]The Upper Tribunal judge reminded himself of the need to show appropriate restraint before interfering with decisions of the FTT, and referred to Volpi and another v Volpi [2022] EWCA Civ 464; [2022] 4 WLR 48 (Volpi) and T(Fact-finding: second appeal) [2023] EWCA Civ 485. Those cases had themselves referred to the review of the law in this area by the Supreme Court in McGraddie v McGraddie [2013] USC 58; [2013] 1 WLR 2477 and Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5; [2014] ETMR 26 (Fage).[42]The Upper Tribunal judge dismissed the Secretary of State’s appeal so far as it related to the issue of whether the appellant was a danger to the community. Complaint was made about the absence of reasons for that finding but although the Upper Tribunal judge accepted that the FTT judge had not undertaken a comprehensive analysis of the risk of re-offending the Upper Tribunal judge concluded “I consider that the judge gave adequate reasons for finding that the appellant would not be a danger to the community …”.[43]The Upper Tribunal judge then turned to the complaint that the FTT judge had erred in her assessment of the credibility questions arising under section 8 of the 2004 Act and that the appellant had not given a plausible explanation for not claiming asylum on first arriving in the UK by ignoring the criminal enterprise on which the appellant was engaged. The Upper Tribunal judge recorded that the FTT judge “did not expressly take into account the appellant’s involvement in a criminal enterprise” before concluding that the explanation for not claiming asylum was plausible, but noted that the FTT judge did not need to rehearse every argument as to why the appellant’s explanation should be disbelieved. The Upper Tribunal judge found that this error of law challenge was an expression of disagreement with a finding that was reasonably open to the judge for the reasons given.[44]The Upper Tribunal judge then turned to the ground relating to the findings of fact made by the FTT judge and the reasons given for those findings. The Upper Tribunal judge turned to the Secretary of State’s reasons for rejecting the appellant’s account of past persecution being the existence of protection and due process in Vietnam. The Upper Tribunal judge recorded that the FTT judge had not addressed the sufficiency of protection available to the appellant, whether the appellant had made a genuine attempt to obtain effective redress and protection “and if the answer was no, whether reflexively it was credible that the appellant had not availed himself of an easy means of redress rather than continuing to submit to unlawful demands from corrupt local officials”.[45]The Upper Tribunal judge found that there was an internal inconsistency in the FTT judge treating the section 8 considerations as being of little weight, and then placing them in the same category as matters mentioned as being of serious concern.[46]The Upper Tribunal judge found that it was unclear whether the FTT judge had treated her findings about matters not adversely affecting credibility as being positive credibility findings or merely non-adverse credibility findings, which are not the same thing. The Upper Tribunal judge said “on their face, the findings … are defensive. They are findings as to why various matters relied on by the respondent are not in the judge’s view damaging to the appellant’s credibility, but they are not findings to the effect that the matters … enhance the appellant’s credibility. Nor are they reasonably capable of performing that function. However, the balancing exercise carried out by the judge … implies that she has treated her findings … as positive credibility findings which outweigh the adverse credibility findings …”.[47]Finally the Upper Tribunal judge noted that the FTT judge had excluded from the balancing exercise the martyr’s certificate, which was not a neutral document, and was antithetical to the core claim because it meant that there was no risk of the appellant being charged and tried for draft evasion, and had not been threatened with a criminal prosecution for draft evasion if he did not submit to their demands.[48]The Upper Tribunal judge found that the FTT judge had materially erred in law, the decision was unsafe and had to be set aside. The matter was remitted to the FTT because of the extent of the fact-finding required to remake the decision. The respective cases on appeal[49]Mr Georget on behalf of the appellant submitted that the Upper Tribunal judge was wrong to set aside the findings made by the FTT judge. The Upper Tribunal judge had referred to the relevant jurisprudence about respecting findings of fact made by trial judges, but had then ignored the guidance. In effect the Upper Tribunal judge was simply finding reasons to set aside a finding of fact with which he disagreed. The FTT judge had heard the evidence, had properly applied the lower standard of proof in asylum and protection claims, and the fact that the Secretary of State did not like the result did not mean that the findings were wrong.[50]Mr Keith on behalf of the Secretary of State submitted that the Upper Tribunal judge had been right, for the reasons given, to set aside the decision of the FTT judge. The FTT judge’s findings on credibility were not reasoned, and to the extent that the reasons could be understood, were internally inconsistent because finding something plausible to the lower standard of proof was not, without more, capable of enhancing the credibility of the appellant. The FTT judge had never dealt with the inherent unlikelihood of the appellant paying bribes to avoid beatings because he would not do military service, when he had a complete defence to the requirement to do military service, and had not weighed the absence of any evidence to support the appellant’s claims from family members who were available to give evidence but did not, and whose inability to obtain government jobs in Vietnam had been relied on by the appellant to justify a delay in seeking asylum.[51]I am very grateful to Mr Georget and Mr Keith, and their respective legal teams, for their helpful written and oral submissions. Relevant provisions of law[52]There was no material dispute about the law. Asylum law is based upon the 1951 Geneva Convention relating to the status of refugees and the 1967 Protocol. Domestic effect has been given to this by legislation and the Immigration Rules, see generally G v G [2021] UKSC 9; [2022] AC 544 at paragraph 45.[53]The appellant’s claim for asylum and protection was made before 28 June 2022, and so the provisions of the Nationality & Borders Act 2022 (“the 2022 Act”) do not apply to this claim. This means that the approach set out by the Court of Appeal in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 to the standard of proof in asylum and protection claims applies. Sedley LJ, agreeing with Brooke LJ, referred to proving facts “to a modest standard of likelihood is enough, given the special role and purpose of the Convention”. It was common ground that the same approach had been adopted to claims for protection under human rights provisions.[54]As was pointed out in MAH (Egypt) v Secretary of State for the Home Department [2023] EWCA Civ 216; [2023] Imm AR 3 (“MAH”) a fear of persecution should be well-founded which means “a reasonable degree of likelihood”. Claims for protection under human rights grounds require there to be shown substantial grounds that a person would face a real risk of impermissible treatment contrary to the ECHR. As Singh LJ noted in paragraph 51 of MAH, strictly speaking it was not accurate to refer to the standard of proof, because the applicant had to prove nothing, and it was more accurate to describe it as an assessment of risk. It is important to take account of events in the context of conditions in the country from which the applicant for asylum or protection comes, the decision maker is not expected to suspend their own judgment, and claims for asylum and humanitarian claims require the most anxious scrutiny.[55]It was also common ground that appeal courts should not interfere with judgments by trial judges just because the appellate court takes a different view of the facts. Findings of fact made by primary fact finders should not be set aside by the appellate court, unless the appellate court is bound to act. The trial judge should “give his reasons in sufficient detail to show the parties, and if need be [the appellate court] the principles on which he has acted and the reasons that have led him to his decision”, see Fage at paragraph 115. There is no duty to refer to every argument of counsel, and the mere fact that a judge does not mention a piece of evidence does not mean that he overlooked it, see Volpi at paragraph 57. These principles apply to the FTT and Upper Tribunal, see generally Terzaghi v Secretary of State for the Home Department [2019] EWCA Civ 2017; [2020] Imm AR 461, particularly given that rights of appeal from the FTT to the Upper Tribunal are limited to errors of law. Findings of fact made by FTT judges should not readily be set aside. Upper Tribunal judge was right[56]I have read, and re-read, the decision of the FTT judge to consider whether the Upper Tribunal judge was right to set aside the decision or was simply disagreeing with a decision that he would not have made. I have also considered carefully whether the criticisms of the decision by the FTT judge were unfair or were requiring too much by way of reasoning.[57]In my judgment the Upper Tribunal judge was right to set aside the findings of the FTT judge. The FTT judge had rightly borne in mind what is referred to as the lower standard of proof in asylum and protection claims, see paragraphs 53 and 54 above, in rejecting criticisms made of parts of the appellant’s evidence in the Secretary of State’s decision letter. The FTT judge had then considered factors that damage the appellant’s credibility and had found that the failure to adduce evidence of the appellant’s attempts to get the 2010 recruitment order and the failure to adduce evidence from family members was damaging to his credibility. The wording at the end of paragraph 37 of the FTT decision, “his failure to provide such evidence would be damaging to his credibility”, was slightly curious because it refers to “would be”, but seems to me to be nothing more than a typographical mistake, and I ignore it.[58]The FTT judge then stated that these matters “raise serious concerns about the appellant’s credibility”. The FTT judge then stated that the evidence as a whole had been considered and found a good level of internal consistency, and did not find the account implausible. That does, as the Upper Tribunal judge correctly recorded, beg the question of what the FTT judge has taken into account in finding that the accounts were plausible, notwithstanding that they were dependent on the credibility of the appellant, about which as the FTT judge had found, there were serious concerns.[59]In the course of submissions it was accepted that there was some infelicity of phraseology in the wording of the FTT decision, and there was a suggestion that the FTT judge might not have intended to say that there were “serious concerns” about the appellant’s credibility, in part because that phrase followed the FTT judge’s statement that there was little weight to be attached to the appellant’s failure to claim asylum sooner, whether in the UK or another country. The difficulty for the appellant is that these were the words used by the FTT judge.[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.[61]The other reasons given by the Upper Tribunal judge do not seem to me to add much to this central difficulty with the FTT decision. It is right, as the Upper Tribunal judge pointed out, that the FTT judge did not confront the fact that there was, according to the evidence, protection and due process available to the appellant in Vietnam, which begged the question why the appellant would pay bribes rather than seek due process, suggesting that he had not been forced to pay a bribe. The FTT judge had accepted that the suggestion that the appellant had been beaten and forced to pay a bribe was plausible, but again did not explain why the plausibility of that account, which depended on the appellant’s evidence, survived the serious concerns raised about his credibility, when the evidence showed that there was due process available to the appellant. This separate point in reality is making the same complaint about the inadequacy of reasons for the findings made by the FTT judge.[62]I would therefore dismiss the appellant’s appeal. This means that that all the matters go back to the FTT for a new decision. It is clear from the finding of the Upper Tribunal judge that it is possible, even if a judge does have serious concerns about the appellant’s credibility, to find the appellant’s account plausible, and allow the appellant’s appeal from the Secretary of State’s decision. Reasons, however, for such a finding will have to be given as a matter of fairness for all. Lord Justice Arnold[63]I agree with the judgment of Dingemans LJ. Lord Justice Holroyde[64]I am grateful to Dingemans LJ for his very clear exposition of the background and procedural history of this case, and of the issues before the FTT, the UT and this court. With every respect to him and to Arnold LJ, however, I do not agree with the conclusion they have reached. I would allow the appeal, set aside the judgment of the UT and restore the judgment of the FTT. My view cannot affect the outcome of this appeal, and so nothing would be gained by my giving a lengthy judgment. Moreover, as the majority decision is in favour of sending the matter back to the FTT for a fresh decision, I wish to avoid saying anything which may appear to trespass on the fact-finding exercise in which that Tribunal will engage. I therefore summarise my reasons briefly.[65]I begin by citing short passages from two of the many decisions of this court emphasising the need for the UT on appeal to show appropriate restraint before interfering with a decision of the FTT.[66]In A E (Iraq) v Secretary of State for the Home Department [2021] EWCA Civ 948 at [32] Warby LJ said – “But it is not an error of law to make a finding of fact which the appellate tribunal might not make, or to draw an inference or reach a conclusion with which the UT disagrees. The temptation to dress up or re-package disagreement as a finding that there has been an error of law must be resisted.”[67]In Volpi v Volpi [2022] EWCA Civ 464 at [2] Lewison LJ said – “Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.”[68]At paragraph 46 of his judgment, the UT judge rightly reminded himself of the correct approach. But with all respect to him, he then failed to follow his own self-direction.[69]True it is that the FTT judge’s judgment could in some respects have been better expressed. But she reached conclusions which she was entitled to reach; and in my view, the reasons for her decision are clear. Having heard and considered all the evidence, the judge gave her assessment of the plausibility of each aspect of it. She acknowledged that some aspects cast doubt on the appellant’s credibility; but her overall conclusion, for the reasons which she gave, was that those points were outweighed by the features of the appellant’s evidence which caused her to accept (correctly applying the lower standard of proof) that he was credible. With respect to the UT judge, his judgment amounts in my view to a disagreement with the decision reached below, which has been presented as an error of law on the basis of a “narrow textual analysis”.[70]The appellant did not dispute that, under Vietnamese law, he was exempt from military service and therefore not liable to imprisonment for draft evasion. But his evidence was that he had nonetheless been forced, by a person in a position of power, to pay bribes; and had thereafter been subject to continuing pressure and serious violence. The FTT judge identified features (in particular, the absence of documentary and other evidence) which were relied on by the respondent as reasons for disbelieving the appellant’s account. She did not then ignore those features. Rather, she weighed them in her overall assessment of the evidence as a whole, and – applying the lower standard of proof – concluded that the appellant’s evidence about what had happened to him was credible.[71]In paragraph 44 above, Dingemans LJ has helpfully summarised the UT judge’s criticisms of the FTT judge for failing to address certain matters. The clear answer to those criticisms by the UT judge, in my view, is that the FTT judge accepted the appellant’s evidence about the steps he had taken; and, insofar as he had not done more, she accepted his account of his reasons for acting as he did. No doubt the FTT judge could have expatiated at greater length on the precise way in which her findings that the appellant had been seriously maltreated impacted on her assessment of whether he could fairly have been expected to do more to invoke the protection of the legal system. But her failure to do so was not in my view an error of law.[72]In paragraph 46 above, Dingemans LJ has quoted the material words of paragraph 67 of the UT judge’s judgment. In my view, the UT judge in that paragraph clearly fell into the error of “narrow textual analysis”. He adopted, moreover, an approach which I find difficult to accept. The FTT judge had heard the appellant give evidence and be cross-examined. The respondent had pointed to certain features as undermining the credibility of the appellant’s evidence, and therefore as reasons for rejecting other parts of his evidence. The FTT judge found that those features did not undermine his credibility. Semantics aside, the practical effect of those findings was that the challenge to the credibility, or plausibility, of the other parts of the appellant’s evidence was rejected, and the appellant’s case as a whole was enhanced.[73]For those reasons, I would find that the judgment of the UT required too much by way of reasoning from the FTT, and that no error of law has been shown in the judgment of the FTT.