EK (Article 4 ECHR: Anti-Trafficking Convention) Tanzania [Upper Tribunal]
| Jurisdiction | UK Non-devolved |
| Judge | Lord Turnbull,Allen UTJ,Allen |
| Judgment Date | 19 June 2013 |
| Neutral Citation | [2013] UKUT 313 (IAC) |
| Date | 19 June 2013 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2013] UKUT 313 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Lord Turnbull
Upper Tribunal Judge Allen
For the Appellant: Ms K Cronin & Mr A Slatter, instructed by Islington Law Centre
For the Respondent: Ms E O'Bryan, Senior Home Office Presenting Officer
EK (Article 4 ECHR: Anti-Trafficking Convention) Tanzania
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(1) Trafficking, as defined in Article 3(a) of the Palermo Protocol of 2000, falls within the ambit of Article 4 of the ECHR (prohibition of slavery and forced labour), as held in Rantsev v Cyprus and Russia [2010] ECHR 22.
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(2) There is no distinction, for the purposes of Article 4, between a domestic worker who was trafficked by way of forced labour and one who arrived voluntarily and was then subjected to forced labour.
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(3) Quite apart from the duties arising under Article 4, which in particular are set out in IDIs, the Secretary of State's duty to provide assistance under the Anti-Trafficking Convention is engaged no later than the point at which a decision is made that there are conclusive grounds to believe a particular appellant to be a victim of trafficking.
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(4) The duties arising under the Convention include an obligation to adopt such measures as may be necessary to assist victims in their physical, psychological and social recovery (Article 12 paragraph 1) and to issue a renewable residence permit to victims if their stay is necessary owing to their personal situation (Article 14), which must include consideration of his or her medical needs.
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(5) The immigration decision in the present case was made without taking account of (i) the link between the appellant's precarious state of health and the breach of the respondent's protective obligations, in terms of her policy regarding foreign domestic workers and Article 4 of the ECHR; and (ii) the duties engaged under Articles 12, 14 and 16 of the Anti-Trafficking Convention. As a result, that decision was not in accordance with the law.
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(6) Where there is no error of law in a First-tier judge's conclusions on a discrete issue or issues, the conclusion that there is an error in respect of another issue or issues does not require a re-visiting of the issue(s) where no error was found, when the decision is re-made. Kizhakudan [2012] EWCA Civ 566 distinguished.
1. The appellant is a national of Tanzania born on 15 November 1982. She appealed to a judge of the First-tier Tribunal against the Secretary of State's decision of 16 July 2010 to remove her from the United Kingdom by way of directions under section 10 of the Immigration and Asylum Act 1999.
2. The appellant's history and the subsequent findings of the First-tier Judge are set out in the error of law determination which is annexed to this determination.
3. Before moving to the main issues in the appeal we mention one point which arises from the error of law determination, in that the Secretary of State was directed to produce any guidance she had established in respect of Article 14.1 of the Council of Europe Convention on Action against Trafficking in Human Beings.
4. Ms O'Bryan was unaware of this direction, not having seen the error of law determination. This must be a matter of concern, first on the basis that the Secretary of State had been directed to produce relevant evidence which has not been done, and secondly that Ms O'Bryan did not have the previous determination, although we can see that it was sent to Angel Square on 16 May 2012, and clearly the appellant had received it. We express the hope that in future the Secretary of State will take note of directions that are issued and do her best to comply with them, with reasons being given for an inability to comply, if such is the case.
5. The first issue on which Ms Cronin addressed us was the matter adumbrated in her skeleton argument, comprising a preliminary application to vary the direction given at the error of law hearing so that not just Article 4 of the European Convention on Human Rights was for consideration by the Tribunal today but also Articles 3 and 8. It was not sought to re-argue the asylum issue and the appellant reserved her position on that.
6. Ms Cronin argued that the error of law findings were wholly premised on the evidence before the First-tier Tribunal and not on the new evidence before the Upper Tribunal at the earlier hearing. She argued that the new evidence was relevant to show that the First-tier Tribunal had made mistakes of fact concerning risk and the appellant's circumstances and medical condition which gave rise to unfairness and error. She argued that the direction could be corrected under Rule 5(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (the UT Rules). She argued that the existing directions ran contrary to section 12(3)(b) of the Tribunals, Courts and Enforcement Act 2007, unlawfully fettered the Upper Tribunal's jurisdiction, referring to section 12(4) of the TCEA, and the Upper Tribunal's obligation to allow the appeal if the decision against which the appeal was brought was not in accordance with the law, referring to the Nationality, Immigration and Asylum Act 2002, section 86(3), and unlawfully fettered the Upper Tribunal's capacity to consider evidence about any matter which it thought relevant to the substance of the decision, referring to the Nationality, Immigration and Asylum Act 2002, section 85(4). Ms Cronin referred in particular to Kizhakudan [2012] EWCA Civ 566 and subsequent guidance by the Tribunal in Ferrer [2012] UKUT 304 (IAC), in particular at paragraph 31.
7. Ms Cronin also argued that the direction was erroneously premised on the assumption that the Article 4 issues were properly severable from the Article 3 and Article 8 claims. She argued that the UK's obligations under the Anti-Trafficking Convention and Article 4 concerned issues and responsibilities which engaged such matters as private life, risk and need for protection which also engaged the United Kingdom's obligations under Articles 3 and 8 of the Human Rights Convention. It would therefore be contrary to law and the principles of fairness to make a direction purporting to decide in advance of the consideration of all the evidence and all the submissions of the parties that the Upper Tribunal had concluded that a re-hearing would only concern Article 4.
8. On this issue Ms O'Bryan argued that the directions made by the Upper Tribunal after the earlier hearing were very clear. If the appellant sought to provide further evidence from Kalayaan1 then it needed to do so before the First-tier Judge. The issues had been properly gone into at the earlier hearing and there had been the concluding decision that the Tribunal would only be concerned with Article 4 today. Article 8 issues could be argued in the context of Article 4 but the Article 3 and Article 8 arguments could not be re-instigated as a discrete argument in an attempt to get a second bite at the cherry.
9. By way of reply Ms Cronin argued that most of the evidence had been produced at the error of law hearing and it had been unclear then whether it would be only an error of law hearing or a rolled-up hearing. At that stage two witnesses had provided oral evidence. It was unclear what view had been taken of their evidence. The evidence produced had included evidence from a psychologist. The purpose of a One-Stop Procedure was to have all matters dealt with in this Tribunal. This approach was invited in the decision of the Court of Appeal in Kizhakudan. Compliance with the Rules had to be done in order to have fresh evidence allowed in and the premise for its availability was the grant of leave and this had been set down as a potential guidance case on Article 4 and on that basis additional funding from the Legal Services Commission had been provided for a report and it was unlikely that that would have been provided for a hearing before the First-tier Judge. That evidence had not been considered by the First-tier Judge or the Secretary of State. There was a failure in the refusal letter to consider the United Kingdom's obligations under Article 4 and the Anti-Trafficking Convention. Further, if this was a case designed to give guidance the Tribunal might well wish to have regard to, and deliberate on the relationship between Article 4 and other Articles of the European Convention on Human Rights in order to assist.
10. Section 12 of the Tribunals, Courts and Enforcement Act 2007 states as follows:
“12. Proceedings on appeal to Upper Tribunal
(1) Subsection (2) applies if the Upper Tribunal, in deciding an appeal under section 11, finds that the making of the decision concerned involved the making of an error on a point of law.
(2) The Upper Tribunal –
(a) may (but need not) set aside the decision of the First-tier Tribunal, and
(b) if it does, must either –
(i) remit the case to the First-tier Tribunal with directions for its reconsideration, or
(ii) re-make the decision.
(3) In acting under subsection (2)(b)(i), the Upper Tribunal may also –
(a) direct that the members of the First-tier Tribunal who are chosen to reconsider the case are not to be the same as those who made the decision that has been set aside;
(b) give procedural directions in connection with the reconsideration of the case by the First-tier Tribunal.
(4) In acting under subsection (2)(b)(ii), the Upper Tribunal –
(a) may make any decision which the First-tier Tribunal could make if the First-tier Tribunal were re-making the decision, and
(b) may make such findings of fact as it considers appropriate.”
11. Ms Cronin argues that the direction made by the Upper Tribunal following the hearing on 27 February 2012 is contrary to section 12(3)(b) of the ...
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