As (Afghanistan) v Secretary of State for The Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lord Justice Ryder,Lord Justice Briggs |
| Judgment Date | 21 November 2013 |
| Neutral Citation | [2013] EWCA Civ 1469 |
| Docket Number | Case No: C5/2012/1564 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 November 2013 |
[2013] EWCA Civ 1469
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Royal Courts of Justice
Strand, London, WC2A 2LL
The Right Honourable Lord Justice Longmore
The Right Honourable Lord Justice Ryder
and
The Right Honourable Lord Justice Briggs
Case No: C5/2012/1564
Mr Mark Schwenk (instructed by Jackson & Canter) for the Appellant
Mr Bilal Rawat (instructed by The Treasury Solicitor) for the Respondent
Approved Judgment
Hearing dates: 30 th October 2013
The question in this appeal is the extent to which (if at all) judges of the Immigration and Asylum Chamber should regard as conclusive decisions of the "Competent Authority" determining that an appellant before them has or has not been a victim of trafficking.
AS claims to have been a victim of trafficking and that the Council of Europe Convention on Action against Trafficking in Human Beings, signed by the United Kingdom on 16 th May 2005 ("the Trafficking Convention") applies to him. If he is (or has been) a victim of trafficking he may be entitled to a temporary renewable residence permit and may be entitled to other assistance from the United Kingdom authorities. There is no national legislation giving effect to the Convention but the UK Government has met its convention obligations by creating a National Referral Mechanism ("NRM") to identify and support victims of trafficking. The United Kingdom Border Agency ("UKBA") is the "Competent Authority" for making decisions in situations in which trafficking is raised as part of an asylum claim or in the context of other immigration processes. In the present case the UKBA has decided that AS is not a victim of trafficking and that the circumstances on which he relied to support his case amounted to people smuggling rather than human trafficking.
AS's case is that he was born on 21 st July 1991 in Afghanistan. He says that he left Afghanistan with other members of his family but became separated from them en route to the United Kingdom where he arrived on an unidentified date. On 21 st July 2008 he was found by Hertfordshire police who, thinking he might be under 18, placed him in the care of the local authority. Not appreciating this gesture, AS absconded almost at once and was not heard of again until 11 th October 2010 when he telephoned 999, asked for the police and said he had nowhere to go. He was arrested and immediately claimed asylum. He was interviewed on 11 th October and an immigration officer completed an NRM referral form. He was interviewed for a second time on 22 nd October for the purpose of assessing his claim to asylum. He claimed in those interviews that his father had had a dispute with an uncle as a result of which his father and his sister had been kidnapped; his sister had been murdered but he and his father had been able to pay a ransom to obtain their release. They decided to leave Afghanistan and agreed to pay $165,000 to an agent to smuggle the remaining family out of Afghanistan. He became separated from his family in Greece but with the assistance of the agent (or perhaps another agent) he was able to come to the United Kingdom.
He said that, after absconding from local authority care, he contacted the original agent in Afghanistan in order to establish contact with his family. That agent directed him to a Mr Saleem who said that the family had not paid the whole of the agreed sum to the original agent and that, because $50,000 was outstanding, AS would be held captive in the basement of a London hotel and would have to work as a kitchen assistant until the debt was fully paid. AS was only released in October 2010 when the debt was considered to have been paid. He was then taken into some woods by car, abandoned there and, after walking for about half an hour, found a telephone box and telephoned the police. As a result of the interviews, AS was identified as a potential victim of trafficking to whom the Convention might be applicable and was referred to the relevant unit in the UKBA for a decision on the matter.
On 17 th November 2010 the Secretary of State refused AS's claim to asylum on the basis that he had no well-founded fear of persecution if returned to Afghanistan; on 22 nd November the Secretary of State made a decision to remove him, thus giving rise to an immigration decision which AS was able to appeal pursuant to section 82(2)(g) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). On the same day a decision was made that there were reasonable grounds to think that AS had been a victim of trafficking. This meant that he could not be removed for at least 45 days while the UKBA as the Competent Authority made a final assessment.
On 6 th December AS gave notice that he intended to appeal the decision to remove him but it was decided that the appeal would not be processed pending a decision on his trafficking claim. AS was interviewed, for a 3 rd time, this time in relation to the trafficking claim, on 20th January 2011; on 25 th February 2011 the UKBA issued and sent to AS a "Conclusive Grounds Trafficking Consideration" signed by the decision maker, a Ms Terry Farrell. In considering the treatment of AS by Mr Saleem, Ms Farrell after quoting the relevant definition of "forced labour" said this:-
"From the evidence provided it appears that [AS] was kept captive and required to work until the alleged debt was repaid. Ordinarily this could be considered to be a case of people smuggling rather than trafficking. However [AS] claims to have been a minor at the time that he was taken by the Agent and forced to work. It is considered that as a minor he should not have been held responsible for the debt incurred by his father, and that the work he was required to do by Mr Saleem could therefore be considered to be forced labour."
Ms Farrell then considered evidence about AS's age and concluded that he must have been at least 18 before he left Afghanistan and ended by saying:-
"It is concluded that the arrangement [AS] then entered into with the UK based agent Mr Saleem is that he was to work for Mr Saleem until the debt of $50,000 was repaid. Once the debt was paid off [AS] was released. Although the conditions under which he worked are not considered acceptable in the UK, it is concluded that this is a case of people smuggling rather than human trafficking."
This decision could be said to be questionable in that Ms Farrell appears to have accepted AS's account of what actually happened to him namely that he was kept captive and required to work until "the debt" was repaid. Although this appears on any view to be "forced labour", Ms Farrell seems to think that it would only be forced labour if suffered by someone under 18. There does not appear to be any warrant for...
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