MN (Vietnam) v Secretary of State for the Home Department

The appellant is a national of Vietnam who entered the UK on 10 June 2014. After having been encountered as an overstayer on 4 April 2018, he claimed asylum on 6 April 2018. On 27 June 2023 he was granted 12 months discretionary leave on the basis that he was a victim of trafficking. On 4 September 2023 the respondent refused the appellant’s protection claim. The appellant’s appeal against that decision to the First-tier Tribunal (Immigration and Asylum Chamber) (“FtTIAC”) was dismissed in a determination promulgated on 14 June 2024. The appellant made an unsuccessful appeal against the decision of the FtTIAC judge to the Upper Tribunal (Immigration and Asylum) Chamber (“UTIAC”) which was determined by a decision of Upper Tribunal Judge Hanson dated 10 December 2024. This is the appellant’s appeal against that decision.

The appellant is a Catholic and whilst in Vietnam he attended a demonstration in 2014 against the Chinese government who had at that time occupied the Spratly and Paracel Archipelago and seized land belonging to the Catholic church. The appellant’s attendance at the demonstration was undisputed by the respondent, but the respondent did not accept that the appellant had experienced the difficulties which he claimed in his evidence as a consequence of his attendance. The appellant’s account of his treatment at the demonstration is recounted in the following paragraphs of the determination of the FtTIAC judge:

The FtTIAC Judge also took account of other details of the appellant’s asylum interview which were recorded as follows:

The appellant was granted a business visa by the respondent on 13 May 2014 valid until 23 November 2014. As set out above, he arrived in the UK on 10 June 2014. The appellant’s account was that when he arrived in the UK he was given a passport and told to follow those who were facilitating his entrance to the UK. Once he had passed through the gate successfully the passport was taken back off him.

The parties provided the FtTIAC judge with information about the current situation in Vietnam which was said to be pertinent to the circumstances of the appellant and provide insight into the risks which he might face on return. The FtTIAC judge set out that evidence in the following paragraphs:

Before the FtTIAC judge the respondent attacked the credibility of the appellant and in particular relied upon the failure of the appellant to mention at his screening interview that he had been arrested. It was also pointed out that the appellant had given an inconsistent explanation for why his arrest had been omitted from his initial explanation of the circumstances leading to him fleeing Vietnam. Further, the respondent relied upon section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 given the failure of the appellant to claim asylum until he was arrested in April 2018.

The conclusions reached by the FtTIAC judge in relation to the appellant’s credibility and the findings of fact to be made in the case were set out in the following paragraphs:

The judge had previously identified (at paragraph 7 of the determination) that the issue which was to be determined (and which is relevant to this appeal) was whether the appellant had established to the lower standard of proof applicable that he would be at risk on return to Vietnam because of his imputed political opinion. Against the background of the judge having accepted the appellant’s account of what had taken place in Vietnam when he attended the demonstration the FtTIAC judge went on to consider the question of the risk to the appellant upon return to Vietnam. The FtTIAC judge’s conclusions on that issue were as follows:

The FtTIAC judge was not therefore satisfied on the basis of all the evidence that there was a real risk of the appellant being persecuted if he was to be returned to Vietnam. Permission to appeal the FtTIAC judge’s decision was granted by FtTIAC on some, but not all grounds. In particular, it was granted on the basis of the assertion that the treatment which the appellant had received following the demonstration amounted to persecution and that a further beating upon return would also amount to persecutory treatment. It was further contended that the FtTIAC judge had not provided reasons as to why the conduct of the authorities would not be persistent or systematic, or why the conduct had to be persistent or systematic in order for it to be regarded as persecution.

Upper Tribunal Judge Hanson concluded that the FtTIAC judge had been correct, based on the authorities which are set out below, to find as a fact that the appellant’s experiences in Vietnam did not amount to persecution. It followed that on the basis he had not been the subject of persecution in the past, the judge was entitled to reach the further factual conclusion that he would not be at risk of persecution in the future. The judge’s conclusions, in particular in paragraph 36 of the determination, just cited, were accurate and sustainable.

On 24 February 2026 the appellant (now represented by different counsel) sought the court’s permission to rely upon a substitute skeleton argument replacing the skeleton argument which had been lodged in support of the grant of permission to appeal. Whilst there was some debate about whether the formulation of the appellant’s case within the substitute skeleton argument was within the scope of the grounds of appeal which had been granted permission (drafted by previous counsel), ultimately it was agreed that the appellant should advance his case as formulated in the substitute skeleton argument. The court had no difficulty with this pragmatic approach, and indeed in my view it assisted the analysis of the appellant’s case and the exploration of the issues to which it gives rise.

As reformulated pursuant to the substitute skeleton argument, the appellant’s case is based upon three strands of argument seeking to demonstrate that the decision of the FtTIAC judge, whose conclusions were effectively accepted and adopted by the UTIAC judge, were in error. The first argument is that there was a failure by the FtTIAC judge to make key findings in relation to the severity and context of the ill-treatment which the appellant had received. In order to address the question of whether or not the appellant would be the subject of persecutory treatment upon return to Vietnam, it was essential for the FtTIAC judge to make clear findings in relation to how severe or prolonged the beating which the appellant had received was and, consequentially, how severe or prolonged the mistreatment which he would receive upon return to Vietnam would be. Further, it was necessary for the FtTIAC judge to make findings about the impact on the appellant of the past beating as well as the impact upon him of any mistreatment in the future. Furthermore, the FtTIAC judge needed to make findings about the context of the past and future ill-treatment of the appellant, for example, whether the beating had occurred or would occur in the context of state custody. The FtTIAC judge also needed, but failed, to make findings about the purpose of the beating. Was the purpose of the beating and would the purpose of any future beating be for the purpose of terrorising or deterring the appellant, humiliating him or extracting information from him? The FtTIAC judge had made no findings in relation to these important features of the appellant’s case, all of which were necessary for an evaluation of whether or not the treatment of the appellant would be persecutory. The appellant contends that this first argument is not only based upon a failure to make essential findings in order to reach a lawful conclusion but also, alternatively, a failure on the part of the FtTIAC judge to give adequate reasons for the decision reached in the appellant’s case. It is illegitimate for the respondent to rely upon inferences in relation to these critical factors.

The second argument advanced by the appellant is that there were significant errors in the FtTIAC judge’s assessment of past ill-treatment of the appellant which affected the risk assessment in relation to future ill-treatment upon return to Vietnam. The authorities make clear that there is a relationship between the experience of past persecution and the prospective risk of persecution. The appellant observes that if the decision-maker has erroneously concluded that the asylum claimant was not persecuted in the past, that error is apt to fundamentally undermine any assessment of prospective risk of persecution upon return. The particular criticism of the FtTIAC judge which the appellant advances is a failure to address the cumulative effect of various elements of the events in Vietnam, namely the appellant’s arrest, charge for attending an illegal demonstration, his being placed on a blacklist by those arresting him and his being watched and warned of this surveillance by the authorities. The FtTIAC judge elided all of these elements of what had happened in Vietnam to the appellant into a “single beating”. This error was material in the context of the information about Vietnam placed before the FtTIAC judge which identified the range of penalties available to the authorities in relation to prohibited attendance at illegal demonstrations.

The third argument relates particularly to the way in which the judge approached the question of persecution at paragraph 36 when he concluded that, whilst a further beating would be unpleasant, “I am not satisfied that the conduct will be persistent or systematic”. The FtTIAC judge was unclear as to what he meant when he used the adjective “systematic”. It is clear from the authorities that a single act of ill-treatment is capable of constituting persecution and the threshold which FtTIAC judge was applying was unclear and erroneous.

Article 1A(2) of the 1951 Convention and the 1967 Protocol relating to the status of refugees (“the Refugee Convention”) affords refugee status to a person who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”. A key element of this definition of refugee status is, therefore, the question of the potential refugee having a “well-founded fear of being persecuted” for a Convention reason, in this case the appellant’s imputed political opinion.

Given the date on which the appellant made his asylum claim the provisions of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (“the Qualification Regulations”) applied to his claim, rather than the relevant current provisions of the Nationality and Borders Act 2022. Regulation 5 of the Qualification Regulations provides the following in relation to acts of persecution:

It is worthwhile noting that these provisions are reflected in section 31(2) and (3) of the 2022 Act, albeit the provisions as already noted were not in operation in respect of the appellant’s asylum claim.

Assistance in understanding the application of the Refugee Convention can be found in the Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection published by the UNHCR, the UN Refugee Agency, most recently reissued in February 2019. In relation to the phrase “well-founded fear of being persecuted” paragraph 38 of the Handbook provides as follows:

The potential significance of past persecution is identified in paragraph 45 of the Handbook, which notes that it “may be assumed that a person has well-founded fear of being persecuted if he has already been the victim of persecution for one of the reasons enumerated in the 1951 Convention”. The Handbook goes on to provide the following in relation to the definition of persecution:

In Demirkaya v Secretary of State for the Home Department [1999] All ER 659 the Court of Appeal considered the threshold for determining whether conduct might amount to persecution. The appellant in that case was a Turkish Kurd whose claim to asylum was based upon him being a non-violent sympathiser and PKK activist. Whilst in Turkey he had been arrested on a number of occasions and subjected to falaka and being beaten up. In particular, on one occasion he had been subjected to a particularly vicious attack where his back had been sliced with a bayonet leaving him with 35 vertical scars between his shoulders. The Immigration Appeal Tribunal formed the conclusion that although the appellant was likely to be arrested on return and detained for one or two days and face insults, this would not amount to persecution attracting the protection of the Refugee Convention. Stuart-Smith LJ provided the following analysis of the correct approach to the question of whether or not conduct could amount to persecution:

At paragraph 20 of his judgment Stuart-Smith LJ goes on to emphasise the relevance to the question of whether an appellant has a well-founded fear of persecution of the experience of past persecution by the appellant. This was a feature of the case which the Immigration Appeal Tribunal had wholly left out of account in that case.

These issues were returned to by the Court of Appeal in the case of MI (Pakistan) v Secretary of State for the Home Department [2014] EWCA Civ 826. The appellant MI was diagnosed with albinism, and he made a claim for asylum in which he complained of having been bullied at school on the grounds of his albinism between the ages of 8 to 15 as well as being the subject of name calling between the ages of 15 to 22. He also stated that whilst in Pakistan he had had difficulty finding work and had been dismissed from employment following remarks by customers about the colour of his skin. He was beaten up by a group of men when he was 23 after responding to their name calling and, having relocated from Karachi to Quetta, the same harassment as a consequence of his condition had continued.

MI’s claim was rejected by the respondent on all grounds. On appeal to FtTIAC the appeal was allowed on the basis that the appellant had established that he had suffered persecution as a consequence of his albinism and that he had been unable to relocate in order to resolve these problems. The FtTIAC judge therefore found that he had a well-founded fear of persecution in Pakistan. The respondent appealed to UTIAC and Deputy Upper Tribunal Judge French concluded that the FtTIAC judge had failed to provide adequate reasons as to why the conduct complained of amounted to persecution. Deputy UTJ French then remade the decision in respect of the appeal and dismissed it on all grounds. He concluded that the evidence did not establish that the appellant had been persecuted or faced a real risk of persecution in the future in Pakistan. This was the case both in relation to the Refugee Convention and also under Article 3 of the ECHR.

The Court of Appeal in MI was also considering the additional case of MF, where the appellant complained of his treatment whilst being politically active and campaigning in opposition to President Hugo Chavez. In particular, whilst serving as the Coordinator of Environmental Affairs in Caracas, MF was the subject of various incidents. Firstly, he was the subject of a road traffic accident when driving to deliver materials and a man with a gun took control of his truck and subsequently drove the truck at him, throwing him in the air. He was followed by police officers in plain clothes who stole his car, screamed and spat at him, subjecting him to intimidation. He received an anonymous telephone call which was threatening and was the subject of provocation and insults by people who approached him. He had difficulties obtaining medical treatment and a school place for his daughter and, finally, was threatened that if he took part in the 2012 elections in Venezuela he would be killed. This led him to resigning his post and fleeing Venezuela in September 2011.

The respondent rejected MF’s claim to asylum and his appeal to FtTIAC was dismissed on all grounds. It was accepted that the decision of the FtTIAC judge contained an error of law and thus his case came before UTIAC for a full rehearing. Most of MF’s evidence was accepted and the UTIAC judges concluded that he had experienced harassment and intimidation from people acting or purporting to act on behalf of President Chavez. It was not accepted, however, that what had occurred crossed the threshold so as to amount to persecution.

In the Court of Appeal Gloster LJ, having set out the principal legal instruments bearing upon the establishment of refugee status, noted in paragraph 55 of her judgment that there was no universally accepted definition of “persecution” for the purposes of the Refugee Convention. However, she noted that in Sepet v SSHD [2003] UKHL 15 Lord Bingham had observed that persecution “is a strong word”. In respect of the case of MI, Gloster LJ concluded that the appeal against UTIAC’s decision should be dismissed. Her reasons for doing so were as follows:

Gloster LJ also dismissed the appeal against UTIAC’s decision in MF. Again, her conclusions for reaching that decision were expressed as follows:

At an earlier stage of her judgment, Gloster LJ drew on the Supreme Court’s decision in the case of In the matter of B (A Child) [2013] UKSC 33 to analyse whether a particular statutory threshold had been crossed. That was a case concerned with the threshold in section 31(2) of the Children Act 1989 as to whether or not a child was “likely to suffer significant harm”. Gloster LJ identified that when addressing statutory thresholds of this kind it is generally the case that a judge will be required to take at least three important steps. Firstly, the judge will have to determine the factual issues on the evidence which has been presented. Secondly, the judge will have to identify the nature of the threshold with which the case is engaged, that question involving the proper construction of the relevant statutory provision. Thirdly, the judge will have to decide whether, on the basis of the facts which have been found and the assessments which have been made, that relevant threshold has been crossed.

In the case of the decision made by the FtTIAC judge in MI, Gloster LJ was satisfied that there had been an error at both the second and third stages of the evaluation process. Firstly, the judge failed to identify the nature of the threshold which had to be satisfied for the relevant conduct to amount to persecution. Thereafter, the FtTIAC judge had failed to address the question of whether or not the treatment which the judge had found as a fact that MI had suffered passed the threshold test of being sufficiently serious or severe so as to constitute persecution within the meaning of the Refugee Convention.

During the course of argument our attention was drawn to cases in other jurisdictions bearing upon the question of the definition of persecution. In the Court of Justice for the European Union, in the case of Y and Z v Germany (joined cases C-71/11 and C-99/11) [2013] 1 CMLR 5 the court considered the cases of two members of the Ahmadiyya Muslim community in Pakistan who had entered Germany and applied for asylum. Y stated he had been beaten in his home village and had stones thrown at him and been in receipt of threats to kill and reports to the police. Z claimed he had been mistreated and imprisoned as a consequence of his religious beliefs. Under Pakistani law, members of the Ahmadiyya community faced death or life imprisonment for practising their religion on the basis that the practice of their religion was regarded as defiling the name of the Prophet Muhammad. The question which the CJEU was asked to determine was whether any interference with the right to religious freedom might constitute an act of persecution within the meaning of the Directive 2004/83 on the qualification and status of third country nationals as refugees, and also whether the Directive had to be interpreted as meaning that a fear of persecution was well-founded where a person concerned could avoid exposure to persecution in their country of origin by abstaining from certain religious practices.

The court determined that it was unnecessary to distinguish between acts interfering with the “core areas” of the basic right to freedom of religion which do not include religious activities in public from acts which do not affect those suggested “core areas”, and further that the fact that a person could avoid the risk of persecution by abstaining from certain religious practices was irrelevant to the assessment of whether or not they were a refugee. In dealing with the first question the court offered the following observations in relation to whether a distinction between core areas and other areas of religious practice was compatible with the Directive and how to assess whether the person concerned had a well-founded fear of persecution on the basis of their religion:

Two cases from the European Court of Human Rights were also drawn to our attention, the first being Bouyid v Belgium (2016) 62 EHRR 32. The first applicant in that case had refused to produce his identity card to a police officer, following which he was taken to a police station where the same officer slapped him in the face, causing bruising to his cheek and ear. The second applicant was slapped in the face whilst being interviewed by another officer of the same police force. He also suffered bruising to his cheek. It appears that following lengthy investigations the case against the police officers was discontinued on the basis that there was no evidence an offence had taken place and thus proceedings before the courts in Belgium proved fruitless. The applicants brought their case to the European Court of Human Rights. The case proceeded to the Grand Chamber, which held at paragraph 112 of their judgment that since the applicants had only referred to minor bodily injuries and had not undergone serious physical or mental suffering, the treatment which they had received could not be described as inhumane or torture but rather a case which involved degrading treatment as a violation of Article 3. The court observed the following in relation to the assessment of breaches of Article 3 at paragraphs 86 to 88 of the judgment:

The Grand Chamber of the European Court of Human Rights returned to these issues in the case of Khlaifia v Italy (Application no. 16483/12) when considering applications on behalf of individuals who left Tunisia travelling by sea and, having been intercepted by the Italian coast guard, were escorted to a port on the island of Lampedusa. They were held there in a reception centre and having been flown to Palermo they were then transferred to two ships moored in the harbour where they were held. After having remained on the ships for a few days they were then taken to Palermo airport and flown back to Tunisia. In determining that there had been no breach of Article 3 as a consequence of the conditions of their detention either in the reception centre or on board the two vessels, the court emphasised the prohibition of inhuman or degrading treatment being a fundamental value in democratic societies. The court went on to emphasise the need for a minimum level of severity to be demonstrated in order to justify a breach of Article 3. The court stated as follows at paragraphs 159 to 160 of its judgment:

Turning to the question of the applicable principles in relation to the provision of reasons in cases of this sort the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules provide in rule 29(3)(a) that where the decision of FtTIAC relates to an asylum claim or a humanitarian protection claim, FtTIAC must provide with the notice of decision its written reasons for that decision. There is, therefore, in protection claims a duty on FtTIAC to give written reasons for its decision. The question which then arises is by what standard those reasons are to be judged in order to determine whether or not they are legally adequate. Whilst given in a different public law context, the observations of Lord Brown of Eaton under Heywood in South Bucks County Council v Porter (No 2) [2004] UKHL 33; [2004] 1 WLR 1953 at paragraph 36 provide an important statement of principle applicable in the current context:

Accompanying these principles, it is also necessary to observe that the decision, in this case the FtTIAC determination, must be read as a whole and in context. Part of that context is that examining the determination’s reasons should be approached and undertaken purposefully, with the object of obtaining an understanding of the decision and its basis. It should not be read or construed in a manner more appropriate to a contract or statute. It requires what Lord Bingham MR described as a “straightforward down to earth reading” of the determination which seeks to identify whether there is “room for genuine as opposed to forensic doubt” as to what has been decided and why (see Clarke Homes Limited v Secretary of State for the Environment and East Staffordshire District Council [1993] 66 P&CR 263).

This approach to the standard of reasons required as a matter of law can be set in the general understanding of approaches to appeals in respect of tribunals within the Immigration and Asylum Chamber provided by Lord Hamblen at paragraph 72 of HA (Iraq) v SSHD [2022] 1 WLR 3784; [2022] UKSC 22:

It is important, when considering the first and second strands of argument advanced in this appeal by the appellant as to the absence of key findings in relation to the severity and context of the past ill-treatment experienced by the appellant and any future beating, to bear in mind the following. Firstly, the authorities which have been referred to above (and in particular the Handbook) make clear the acutely fact-sensitive determination which needs to be made when considering whether or not a person has been the subject of persecution. Secondly, the authorities make clear that it is important not to seek to turn what is a question of fact as to whether or not a person has been the subject of persecution into a question of law. Thirdly, in assessing the question of whether a person has been the subject of persecution it is necessary to have regard to both the subjective frame of mind of the person seeking refugee status as well as the objective circumstances which may ground a well-founded fear. Fourthly, as noted by the Handbook along with the authorities, whether or not a person has been a victim of persecution in the past may prove a useful indicator of how they may be treated on return, all other things being equal.

The appellant’s first line of argument depends upon the contention that there were elements of the appellant’s case about which the FtTIAC judge failed to make findings or failed to make sufficiently specific findings. In order to evaluate that contention, it is necessary to form conclusions about what, in fact, the FtTIAC judge decided. First and foremost, the judge clearly accepted the totality of the appellant’s account of what had happened to him in Vietnam prior to him leaving the country. At paragraphs 31 and 32 of the determination the FtTIAC judge found the appellant’s account to be plausible and that the appellant had established that he was arrested whilst attending a demonstration in Ho Chi Minh, beaten, charged with attending an illegal demonstration and returned to his home area where he was advised by the authorities that he was on a blacklist and they were watching him. In short, it is clear from the determination that the FtTIAC judge accepted the detail of the appellant’s description of what occurred. In the appellant’s evidence this was treated as a single episode comprising a number of features which were captured in the judge’s findings, and it was not necessary for the judge to repeat every aspect of the episode each time it was referred to.

In my view it is significant that in paragraph 31 of the determination the judge notes with approbation the observation of the presenting officer that the claim of the appellant “chimes” with the information contained in the CPIN. That is the evidence cited at paragraphs 25 to 27 of the determination where at paragraph 3.2.2 it was noted that those who engaged in protests on political or sensitive subjects might be subject to intimidation by the police and arrested, but that this treatment was “not sufficiently serious by its nature and or repetition to amount to persecution”.

These conclusions underpinned the key paragraph in the determination, namely paragraph 36. The appellant submits that it was necessary for the FtTIAC judge to address and make broader findings on a number of aspects of the appellant’s case: how severe or prolonged any beating was or would be; what the impact of the beating was or would be on the appellant; what was or would be the context of any beating; and what was the purpose of the beating. In reality all of those questions were sufficiently examined in the findings that the judge made when the decision is read appropriately and as a whole. The appellant’s submission to us would require a tribunal to possess an unattainable degree of foresight that is not to be expected in an assessment of this kind.

The FtTIAC judge accepted the evidence that the appellant was punched in the face and slapped when he was arrested at the demonstration and at paragraph 36 accepted that there may be a risk of repetition of what had happened. However, the judge went on, as he was entitled to, to place that risk in the context of the appellant having been in the UK since 2014 and having attended only one demonstration in 2018, alongside his conclusion in paragraph 35 that there was “not a reasonable degree of likelihood of the appellant participating in any activities in Vietnam that may be perceived as political or opposed to the regime”. The judge therefore made findings about the extent and nature of the beating which the appellant received and the extent and nature of future ill-treatment of this kind. So far as the impact on the appellant was concerned, again the judge took account of the impact which the episode had had on the appellant in deterring him from any future activities in Vietnam and the judge was well-placed to make that appraisal having heard the appellant give evidence. The judge accepted that the appellant, having been placed on a blacklist, could be questioned by the authorities upon his return. It is obvious that such questioning would be whilst the authorities had the appellant in detention. The judge had also accepted the appellant’s evidence that he had been charged with attending an illegal demonstration as part of his evidence and this would form part of the context of his risk profile upon return. Finally, the judge’s conclusions are set in the context of the evidence about circumstances in Vietnam which he accepted, namely that there can be intolerance of protests and the actions of the authorities in cases such as that of the appellant might take to suppress opposition to the state.

Thus, in my judgment, the judge made comprehensive findings in relation to both the appellant’s experiences in Vietnam before he travelled to the UK and in particular in relation to the episode of his arrest. Those findings were set in the context of the evidence which the judge received about the circumstances pertaining in Vietnam, in particular with regard to participation in protests on sensitive subjects, and the judge reached legitimate conclusions based on that material as to the appellant’s risk on return. The judge’s findings appropriately determined the question of whether the appellant had been persecuted in the past. The finding that the judge was “not satisfied that the single beating was sufficiently serious” to amount to persecution reflected an appropriate self-direction pursuant to the provisions of regulation 5(1) of the 2006 Regulations. Whilst the appellant sought to submit that there was an accumulation of features which the judge left out of account in terms of the appellant’s arrest, detention, beating and being charged with a criminal offence, in my view the judge was perfectly entitled to treat all of these features as facets of the single episode arising from his attendance at the demonstration. This is how they were addressed in the appellant’s evidence and it was sensible to deal with them in that way.

Each of those facets relied upon by the appellant featured in the judge’s overall assessment that what had taken place was not sufficiently serious or of sufficient severity so as to amount to persecution. The judge accepted that there was a risk of repetition, but again the judge was careful to place that risk perfectly properly in the context of what had happened in the past and what had occurred since the previous beating, namely the appellant having resided for many years in the UK and only once having attended a demonstration whilst present in this country. The conclusion which the judge reached that the appellant would not be a person with a profile that the authorities sought to target was grounded in the evidence which the judge had received about circumstances in Vietnam. Applying the principles in relation to the standard of reasons which has been set out above, nothing further was required of the judge in this instance. The reasons provided were clear, coherent and addressed the principal controversial issues which the judge had to resolve.

It follows from the conclusions which have been set out above that I am not satisfied there is any substance in the appellant’s first strand of argument, namely that the FtTIAC judge failed to make key findings in relation to the severity and context of what had happened to the appellant in the past and what might therefore happen to him in the future upon return to Vietnam. The appellant’s second strand of argument relates to the contention that, because of errors in the FtTIAC judge’s assessment of past ill-treatment, the assessment made of prospective risk was erroneous. For the reasons which have already been given I am not satisfied that there was any error in the FtTIAC judge’s assessment of past ill-treatment. The judge did take account of the individual facets of what occurred when the appellant was arrested and charged with attending an illegal demonstration and addressed them cumulatively in the sense of them all being features of what the appellant described occurred as a consequence of him attending the illegal demonstration. The question he posed in paragraph 36 has to be put in the context of the judge’s decision taken as a whole and his acceptance in its entirety of the appellant’s account of that episode. The judge’s assessment of future risk was securely placed in the context of the evidence which had been presented about the circumstances in Vietnam and the judge’s assessment of the appellant’s profile as reflecting those who would not be targeted by the authorities. There is no substance in my judgment in the appellant’s second strand of argument in this appeal.

The third strand of argument in the appeal relates to the appellant’s concern that the FtTIAC judge misdirected himself in relation to the threshold test for persecution when in paragraph 36 the judge indicated that he was not satisfied that the conduct on return “will be persistent or systematic”. The appellant contends that the use of this language, and in particular the word “systematic”, demonstrates an inaccurate understanding of the law and that it is not a threshold condition to establish that persecution had occurred to show that it is repetitive or coordinated. Thus, the judge was in error as to the threshold for persecution being established. As was recognised in Demirkaya, a single act of sufficiently serious ill-treatment or degrading treatment may constitute persecution. The appellant relies upon the decision of the Grand Chamber in Bouyid to demonstrate that a single blow to the face in police custody is capable of constituting degrading treatment contrary to Article 3. In the circumstances, therefore, the FtTIAC judge’s decision was based on a misunderstanding as to the appropriate test to establish persecution and this error was compounded by the UTIAC judge suggesting that this was merely a challenge to a factual finding of the judge rather than being an error of law.

In my view the submissions made by the appellant engage in an overly forensic scrutiny or dissection of the language used by the FtTIAC judge and focus upon an individual word outside the wider context of an understanding of the factual conclusion that the FtTIAC judge was reaching and explaining. In the final sentence of paragraph 36 of the determination the FtTIAC judge is simply reiterating the conclusion that, whilst repetition may occur, there will be no real risk of the authorities taking any further adverse interest in the appellant once the recent history of the appellant following his departure from Vietnam comes to light. In that passage the FtTIAC judge is not setting a threshold but describing his findings. The appellant’s concerns are an overreading of the determination which does not set the final word of paragraph 36 in the context of the reasons for the judge’s conclusions set out as a whole.

The appellant is entitled to draw attention to the case of Bouyid as indicating that a blow to the face in police custody is capable of constituting degrading treatment contrary to Article 3. Indeed, as has already been observed, Stuart-Smith LJ in Demirkaya noted that in some circumstances a single episode of ill-treatment could be found to amount to persecution. However, as all the authorities emphasise, these cases are acutely fact-sensitive and closely dependent upon their context. The FtTIAC judge had to reach conclusions based upon the subjective and objective evidence in this case. The finding based on the material in this case that what had happened to the appellant when he attended the demonstration, and what could happen to the appellant on return, were not sufficiently serious or sufficiently severe so as to amount to persecution was a conclusion which was open to the judge and for which he provided clear and adequate reasons. I do not consider that the appellant’s third strand of argument is made out.

For all of these reasons in my judgment the decision of the FtTIAC judge was not the subject of legal error as submitted by the appellant and, like the UTIAC judge, I have formed the view that the appeal must be dismissed.

I agree.

I also agree.