ES (Anonymity Order Made) v The Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Finch |
| Judgment Date | 06 September 2018 |
| Neutral Citation | [2018] UKUT 335 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 06 September 2018 |
[2018] UKUT 335 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Finch
For the Appellant: Mr. P. Bonavero of counsel, instructed by Kilby Jones Solicitors
For the Respondent: Mr. P. Duffy, Home Office Presenting Officer
ES (s82 NIA 2002; negative NRM) Albania
1. Following the amendment to s 82 of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’), effective from 20 October 2014, a previous decision made by the Competent Authority within the National Referral Mechanism (made on the balance of probabilities) is not of primary relevance to the determination of an asylum appeal, despite the decisions of the Court of Appeal in AS (Afghanistan) v SSHD [2013] EWCA Civ 1469 and SSHD v MS (Pakistan) [2018] EWCA Civ 594.
2. The correct approach to determining whether a person claiming to be a victim of trafficking is entitled to asylum is to consider all the evidence in the round as at the date of hearing, applying the lower standard of proof.
3. Since 20 October 2014, there is also no right of appeal on the basis that a decision is not in accordance with the law and the grounds of appeal are limited to those set out in the amended s 82 of the 2002 Act.
Pursuant to rule 14(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008
IT IS ORDERED THAT:
Nothing shall be published that would or might tend to identify the Appellant in these proceedings.
This Order is to remain in force until further order.
Failure by a person, body or institution whether corporate or unincorporated or any party to this appeal to comply with this direction may lead to proceedings for contempt of court.
The Appellant is a national of Albania. She was born in Fiera and attended university in Tirana between October 2009 and September 2012. Whilst there, she met a man called Florian Buzzi, who became her boyfriend in May 2010. He was an Albanian who was living in Italy and she believed that she was going to join him there to study for a Masters degree.
She did not initially tell her parents about their relationship, as her father was very strict. However, she had to do so in May 2012 when her parents said that they wanted her to marry into her sister-in-law's family. They then demanded that Florian marry her but he told her that it was too early for them to get engaged. The Appellant told her family that she had stopped seeing Florian but continued to do so.
In October 2012, just after she had completed her first degree, Florian took her to see a man called Artan in Sauk, stating that he could help them obtain the necessary documents to live in Italy. Whilst there, she believes that her drink was spiked. When she woke up, Florian had gone and Artan told her the she had been “sold” to him. She was then detained and beaten until she submitted to working as a prostitute. She remained imprisoned in his house until February 2014 when she was taken to Italy and prostituted there. She was then brought back to Albania in June 2014 and held and prostituted in Durres and Vlore and once again in Sauk.
She managed to escape on 25 May 2015 whilst the men guarding her were preoccupied by the death of Artan's nephew. By this time, she had saved the equivalent of over 2,700 Euros in tips that she had received from “clients” and hidden away. She fled to her parents' home but they would not assist her and she went to stay with a friend in Patos. She stayed there until she learnt that Artan had gone to her family home looking for her and her friend thought it was no longer safe for her to remain in her home. Her friend's father assisted her to find someone willing to smuggle her to the United Kingdom in the back of a lorry and she arrived here on 5 June 2015.
She applied for asylum that same day but her application was refused on 31 March 2016. Meanwhile, the Immigration Service had referred the Appellant into the National Referral Mechanism, as a potential victim of human trafficking on 8 June 2015. The Competent Authority, which is located in the Home Office, found that there were reasonable grounds to suspect that she was a victim of human trafficking on 12 June 2015 but on 10 December 2015 it found that, applying a balance of probabilities, she had not established that there were conclusive grounds for finding that she had been a victim of human trafficking. The findings in this decision formed the basis of the subsequent decision to refuse her asylum.
She appealed against the decision to refuse her asylum and her appeal was initially allowed by First-tier Tribunal Judge Heatherington in a decision promulgated on 13 October 2016. However, the Respondent appealed and in a decision, promulgated on 16 February 2017, Upper Tribunal Judge Hanson found that First-tier Tribunal Judge Heatherington had made material errors of law and the Appellant's appeal was remitted to the First-tier Tribunal to be heard de novo.
Her appeal came before First-tier Tribunal Judge Andrew, who dismissed her appeal in a decision, promulgated on 7 August 2017. She appealed and in a decision, promulgated on 27 March 2018, Dr Storey, a Judge of the Upper Tribunal, set aside First-tier Tribunal Judge Andrew's decision but ordered that the appeal be retained in the Upper Tribunal for a de novo hearing.
At the start of the hearing, counsel for the Appellant applied under regulation 15(2A) of The Tribunal Procedure (Upper Tribunal) Rules 2008, as amended, to rely upon the further evidence contained in her Supplementary Bundle. This had been submitted to the Upper Tribunal on 18 June 2018 along with a covering letter stating that she wished to rely upon it. Therefore, I find that the Appellant had given notice to the Upper Tribunal of the new material, as required by regulation 15(2A)(a). The Home Office Presenting Officer had read the documents in the Supplementary Bundle and took no objection to them being admitted. Furthermore, in her supplementary statement the Appellant explained that she had become pregnant after her last hearing before the First-tier Tribunal and it can be inferred from this statement that the material contained in the Supplementary Bundle could not have been in existence at the time of her last hearing before a First-tier Tribunal Judge. Consequently, I find that there was no unreasonable delay in submitting this evidence.
When exercising my discretion to admit the Supplementary Bundle, I have also taken into account the fact that when Dr Storey, a Judge of the Upper Tribunal, found that there had been an error of law in First-tier Tribunal Judge Andrew's decision and set it aside, he did not preserve any of the findings made in the First-tier Tribunal. Therefore, the appeal comes before me de novo.
I have also reminded myself of the case of the case of AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123 in which Sir Ernest Ryder, Senior President, referred to the Joint Presidential Guidance Note No. 2 of 2010: Child, Vulnerable Adult and Sensitive Appellant (“the guidance note”) and also the Practice Direction, First-tier and Upper Tribunal Child, Vulnerable Adult and Sensitive Witnesses. He went on to state that “the directions and guidance contained in them are to be followed and…Failure to follow them will most likely be a material error of law”.
Paragraph 2 of the Guidance Note states that, when considering whether an individual is vulnerable, any mental health problems, his or her social and cultural background and any domestic circumstances are to be taken into account. In the Appellant's case, the letter by Dr Ceaser, a specialist clinical psychologist, dated 18 December 2017, stated that “the Appellant presented with symptoms associated with Type 2 PTSD (complex trauma) and that she continued to experience flashbacks and nightmares alongside symptoms of anxiety, panic, low mood and low self-esteem. Other symptoms include dissociation, hypervigilance and hyperarousal, constantly checking her surroundings to monitor her safety, emotional regulation difficulties, with intense feelings of sadness, anger and irritability with associated low self-esteem”.
All of these symptoms were likely to lead to her having difficulty giving cogent oral evidence. In addition, the medical documents from the Queen's Medical Centre Campus in Nottingham confirmed that she is pregnant with an expected due date of 17 July 2018 and that the fact that she had another appeal hearing in relation to her claim for asylum was having a negative effect on her mood. (I have noted that she was not receiving any psychotherapy or counselling at the time of the hearing but take into account that the medical evidence explained that this was because she had reached the end of the services that could be provided by the NHS and that her clinician had recommended that her GP refer her to a generic counselling service after the birth of her child.)
On the basis of this evidence, I found that the Appellant is a vulnerable witness and, in accordance with paragraph 8 of the Guidance, I considered whether it was necessary to hear oral evidence from the Appellant. She was in court and the Home Office Presenting Officer had discussed with her counsel, whether it would be appropriate to adjourn the appeal hearing until after the birth of her child. However, counsel for the Appellant stated that he was instructed to resist any application for an adjournment due to her on-going mental health difficulties.
The Home Office Presenting Officer accepted that, although “inconsistencies” were referred to in the Respondent's refusal letter, the issues...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2019-09-03, [2019] UKUT 351 (IAC) (DC (Trafficking, Protection/Human Rights appeals))
...594, AUJ (Trafficking – no conclusive grounds decision) Bangladesh [2018] UKUT 200 (IAC), ES (s82 NIA 2002; negative NRM (Albania) [2018] UKUT 335 (IAC) and R (MN) v Secretary of State for the Home Department, The Aire Centre intervening [2018] EWHC 3268 (Admin). Secretary of State for the ......
-
Upper Tribunal (Immigration and asylum chamber), 2019-05-13, PA/05660/2017
...where there was good reason to believe that he was. Mr Southey submitted, in reliance on ES (s82 NIA 2002; negative NRM) Albania [2018] UKUT 00335 (IAC), that the judge was entitled to make findings regarding trafficking and that the circumstances in which the appellant arrived in the UK an......
-
Upper Tribunal (Immigration and asylum chamber), 2018-09-06, [2018] UKUT 335 (IAC) (ES (s82 NIA 2002, Negative NRM))
...{ font-family: "Times New Roman", serif } Upper Tribunal (Immigration and Asylum Chamber) ES (s82 NIA 2002; negative NRM) Albania [2018] UKUT 00335 (IAC) THE IMMIGRATION ACTS Heard at Field House Decision & Reasons Promulgated On 28 June 2018 On 6 September 2018 Before UPPER TRIBUNAL JUDGE ......
-
Upper Tribunal (Immigration and asylum chamber), 2019-05-07, PA/02544/2018
...evidence.” However, in the context of a decision that was more directly on point, the Upper Tribunal revisited the issue in ES [2018] UKUT 335 (IAC): “1. Following the amendment to s 82 of the Nationality, Immigration and Asylum Act 2002 ('the 2002 Act'), effective from 20 October 2014, a p......