AM and BM (Trafficked women)
| Jurisdiction | UK Non-devolved |
| Judge | Senior Immigration Judge McGeachy |
| Judgment Date | 06 May 2009 |
| Neutral Citation | [2010] UKUT 80 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 06 May 2009 |
[2010] UKUT 80 (IAC)
Senior Immigration Judge Mcgeachy
Senior Immigration Judge Southern
Ms J Enderby
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
AM and BM (Trafficked women) Albania CG
a) It is not possible to set out a typical profile of trafficked women from Albania: trafficked women come from all areas of the country and from varied social backgrounds.
b) At its worst the psychological damage inflicted on a victim of trafficking can lead to difficulties in reintegrating into Albanian society and has implications on whether or not it is possible for the victim of trafficking, should she fear persecution in her own area, to relocate.
c) Much of Albanian society is governed by a strict code of honour which not only means that trafficked women would have very considerable difficulty in reintegrating into their home areas on return but also will affect their ability to relocate internally. Those who have children outside marriage are particularly vulnerable. In extreme cases the close relatives of the trafficked woman may refuse to have the trafficked woman's child return with her and could force her to abandon the child.
d) Those that see themselves outside society, for example, divorced or abandoned women, or others who wish to live abroad, may seek out traffickers in order to facilitate their departure from Albania and their establishment in prostitution abroad. Although such women are not “trafficked women” in the sense that they have not been abducted against their will, there is likely to be considerable violence within the relationships and the psychological affect of that violence may lead to a situation where the pressures which they are under and the lack of freedom they are under means that such women should be treated as trafficked women.
e) The Albanian Government and authorities are taking steps to protect trafficked women who return but such steps are not always effective. When considering whether or not there is a sufficiency of protection for a trafficked woman who is to be returned her particular circumstances must be considered. Not all trafficked women returning to Albania will be unable to access the arrangements and facilities available to enable successful re-integration.
f) Trafficked women from Albania may well be members of a particular social group on that account alone. Whether they are at risk of persecution on account of such membership and whether they will be able to access sufficiency of protection from the authorities will depend upon their individual circumstances including but not limited to the following: 1)The social status and economic standing of the trafficked woman's family. 2) The level of education of the trafficked woman or her family. 3) The trafficked woman's state of health, particularly her mental health. 4) The presence of an illegitimate child. 5) The area of origin of the trafficked woman's family. 6) The trafficked woman's age.
For the Appellant: Mr D. Jones and Mrs R Kotak, of Counsel instructed by Messrs Wilson and Co.
For the Respondent: Mr. M. Blundell, of Counsel instructed by the Treasury Solicitor
The appellants are young women who are citizens of Albania. Each applied for asylum, her claim being based on the fact that she was a victim of trafficking. Each has a young child. When their applications were refused, removal directions were given for their return to Albania.
Each then appealed, their appeals were dismissed but on reconsideration material errors of law were found in both determinations. The appeals therefore now come before us as second stage reconsiderations with a view to giving country guidance on the conditions facing victims of trafficking on return to Albania and the likelihood of future persecution or treatment contrary to their rights under Article 3 of the ECHR. Each case before us also raises substantial Article 8 issues not least because each appellant has a young child.
Over four days of hearing we heard evidence from AM, Dr Roxane Agnew-Davies, a clinical psychologist specialising in violence against women, and from Dr Stephanie Schwandner-Sievers. We also had before us a report from Mr Alex Standish of the Department of Anthropology at Durham University and a number of medical reports relating to the appellants as well as the background documentation which we have listed in the addendum to this determination which includes the annual reports of the organisations in Albania set up to assist trafficked women who have been returned to Albania.
Article 3 of the United Nations Protocol, to prevent, suppress and punish trafficking in persons, especially women and children dated 15 th November 2000, supplementing the United Nations Convention against Transnational Organised Crime (the ‘Trafficking Protocol’) of that date, defines ‘Trafficking in Persons’ in the following terms:
(a) ‘Trafficking in persons’ shall mean the recruitment, transportation transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal or organs;
(b) The consent of a victim of trafficking in person to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;
(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered ‘trafficking in persons’ even if this does not involve any of the means set forth in subparagraph (a) of this article;
(d) ‘Child’ shall mean any person under eighteen years of age.
The Trafficking Protocol definition has been described by UNHCR as representing “the current international consensus on the meaning of trafficking”. The same definition is used in the Council of Europe Convention of 16 th May 2005, on action against trafficking in Human Beings, in Article 4, subject to the addition of a subparagraph (e) defining “victim” to mean “any natural person who is subject to trafficking in human beings as defined in this article”.
The UNHCR Trafficking Guidelines, dated 20 th May 2002, break down this definition into ‘three essential and interlinked sets of elements’ as follows:
“ The act: recruitment, transportation, transfer, harbouring or receipt of persons’
The means: by threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power, abuse of a position of vulnerability, or of giving or receiving of payments or benefits to achieve the consent of a person having control over the victim;
The purpose: exploitation of the victim, including, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery or servitude or the removal of organs.”
AM (hereinafter referred to as “AM”) was born on 16 August 1983 in Sinat Village, near Kukes in Northern Albania. She entered Britain illegally in July 2006 and her daughter was born on 5 August 2006. In her determination Immigration Judge Kaler set out the basis of the appellant's claim in paragraphs 11–16 as follows:
“11. She was born in Kukes in Albania in a Muslim family. Her parents introduced her to A as a prospective husband and they both agreed to the match after the first meeting in September 2005. They were officially engaged on 1 October 2005 when rings were exchanged and there was a small celebratory family lunch. A asked and was granted her father's permission to take her to Pristina as he had been promised a good job there, and they left for Kosovo on 20 October 2005. This was the last time she saw her family.
12. In Pristina, the Appellant was introduced to A's friend N and was taken to a flat above a café where there were other women present. She greeted them but they did not speak to her. A then told her that the girls worked for him and she would do so as well. He beat her up in front of the girls, she was raped by N and then put to work as a prostitute. She had initially refused to comply but they threatened her family, saying they would recruit her sister as well.
13. She tried to kill herself a week later. She was in a flat on the fourth floor and she tried to break a window with the heel of her shoe. A heard her banging and beat her severely. She tried to escape through a bathroom window on another occasion but was discovered and beaten. She was also beaten every time she did not satisfy a client. The clients were manly foreigners and many of them spoke English.
14. A took her back to Albania five months later in March 2006. they went to Vlore and she was put to work again. About two months later, the Appellant realised that her stomach was getting bigger and she told A she believed she was pregnant. She did not think of this before as she always had irregular periods. A beat her up, and made her carry on working. She continued to service clients. A then told her that he would take the Appellant to England and sell the baby. A told her he had girls there too.
15. A, N and the Appellant travelled on a lorry on 3 July 2006, and A left them when they changed lorries. She remembered the date because A had said they would have to be on the lorry on 3 July. She was given hamburgers,...
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