HD (Anonymity Direction Made) v Secretary of State for the Home Department

 
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[2016] UKUT 454 IAC

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

UPPER TRIBUNAL JUDGE Coker

UPPER TRIBUNAL JUDGE Frances

Between
HD (Anonymity Direction Made)
Appellant
and
Secretary of State for the Home Department
Respondent
Representation:

For the Appellant: Ms K. Cronin with Mr M. Moriarty and Mr B. Hashi, counsel instructed by Luqmani Thompson and Partners, solicitors

For the Respondent: Mr S. Singh instructed by Government Legal Department

HD (Trafficked women) Nigeria CG

  • 1. The guidance set out in PO (trafficked women) Nigeria [2009] UKAIT 00046 at paragraphs 191–192 should no longer be followed.

  • 2. Although the Government of Nigeria recognises that the trafficking of women, both internally and transnationally, is a significant problem to be addressed, it is not established by the evidence that for women in general in Nigeria there is a real risk of being trafficked.

  • 3. For a woman returning to Nigeria, after having been trafficked to the United Kingdom, there is in general no real risk of retribution or of being trafficked afresh by her original traffickers.

  • 4. Whether a woman returning to Nigeria having previously been trafficked to the United Kingdom faces on return a real risk of being trafficked afresh will require a detailed assessment of her particular and individual characteristics. Factors that will indicate an enhanced risk of being trafficked include, but are not limited to:

    • a. The absence of a supportive family willing to take her back into the family unit;

    • b. Visible or discernible characteristics of vulnerability, such as having no social support network to assist her, no or little education or vocational skills, mental health conditions, which may well have been caused by experiences of abuse when originally trafficked, material and financial deprivation such as to mean that she will be living in poverty or in conditions of destitution;

    • c. The fact that a woman was previously trafficked is likely to mean that she was then identified by the traffickers as someone disclosing characteristics of vulnerability such as to give rise to a real risk of being trafficked. On returning to Nigeria, it is probable that those characteristics of vulnerability will be enhanced further in the absence of factors that suggest otherwise.

  • 5. Factors that indicate a lower risk of being trafficked include, but are not limited to:

    • a. The availability of a supportive family willing to take the woman back into the family unit;

    • b. The fact that the woman has acquired skills and experiences since leaving Nigeria that better equip her to have access to a livelihood on return to Nigeria, thus enabling her to provide for herself.

  • 6. There will be little risk of being trafficked if received into a NAPTIP shelter or a shelter provided by an NGO for the time that she is there, but that support is likely to be temporary, possibly for just a few weeks, and there will need to be a careful assessment of the position of the woman when she leaves the shelter.

  • 7. For a woman who does face a real risk of being trafficked if she returns to her home area, the question of whether internal relocation will be available as a safe and reasonable alternative that will not be unduly harsh will require a detailed assessment of her particular circumstances. For a woman who discloses the characteristics of vulnerability described above that are indicative of a real risk of being trafficked, internal relocation is unlikely to be a viable alternative.

TABLE OF CONTENTS

Glossary

Page 3

Paragraph number

Introduction

1

Asylum

9

What is trafficking?

12

What are the characteristics of trafficking in a Nigerian context?

23

Victim profiles and indicators of risk

62

The legal test relating to assessment of risk on return

64

Risk on return

83

Conclusions on the provision of protection

137

Internal relocation

178

Country Guidance

187

Appellant's case

194

Page number

Annex 1 – The expert witnesses

75

Annex 2 – Submissions

80

Annex 3 – The elements of trafficking

84

Annex 4 – Trafficking and Investigation

99

Annex 5 – USA statute extract and 2016 TIP report — Nigeria

103

Appendix A – Error of Law decision

113

Appendix B – Schedule of Background Evidence

121

GLOSSARY

Anti-trafficking Convention

The Council of Europe Convention on Action against Trafficking in Human Beings (2005)

ATLeP

OSCE/ODIHR 2011 delegation

AVRR

IOM Assisted Voluntary Return and Reintegration programmes.

AWEG

African Women's Empowerment Guild

Campana

The Structure of Human Trafficking: Lifting the Bonnet on a Nigerian Transnational Network by Paola Campana (2016)

CARE —

Coordinated Approach for the reintegration of victims of trafficking

Cherti – IPPR —

Beyond Borders: Human Trafficking from Nigeria to the UK by M Cherti, J Pennington and P Grant (January 2013)

CORI

Country of Origin Research and Information — Thematic Report Nigeria: Gender and Age December 2012

COSUDOW

Committee for the Support of the Dignity of women,

Danish Report

The Danish Immigration Service Report

The Protection of Victims of Trafficking in Nigeria: a Fact Finding Mission to Lagos, Benin City and Abuja, 9/26 September 2007 (April 2008)

EASO Report 2015

European Asylum Support Office Country of Origin Information Report – Nigeria: sex trafficking of women dated October 2015.

Europol 2016 Report

Situation Report: Trafficking in Human Beings In Eastern Europe

Finnish Report 2015

Finnish Immigration Service Report

Trafficking Women to Europe (March 2015)

Freedom House

Freedom in the World 2016: Nigeria, 27/01/2016

GPI

Girls' Power Initiative,

ILO

International Labour Organization

IOM 2006 Report

Migration, human smuggling and trafficking from Nigeria to Europe by Jorgen Carling

IOM 2015 Report

International Organization for Migration: Enhancing the Safety and Sustainability of the Return and Reintegration of Victims of Trafficking; Lessons learnt from the CARE and TACT projects 2015.

IPPR

Institute for Public Policy Research

IRRAG

International Reproductive Rights Research Action Group

NAPTIP

The National Agency for the Prohibition of Traffic in Persons — is the principal organisation created by the Nigerian government to combat trafficking. The Trafficking in Persons (Prohibition) Law Enforcement Administration Act, 2003 established NAPTIP and was enacted as a direct result of Nigeria wishing to fulfill its international obligations under the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.

NRM

National referral Mechanism

OCG

Organised Criminal Group

OCN

Organised Criminal Network

OSCE/ODIHR 2011

Organisation for Security and Co-operation in Europe/Office for Democratic Institutions and Human Rights fact finding report 2011

Palermo Protocol

The Protocol to Prevent Suppress and Punish Trafficking in Persons Especially Women and Children supplementing the United Nations Convention against Transnational Organised Crime (2003)

Shelley report

Trafficking in Women: the Business Model Approach (2003)

TACT

Transnational Action – safe and sustainable return and reintegration for victims of trafficking

TIP

Trafficking in Persons – reports produced by the US State Department

Trafficking Directive

Directive 2011/36 /EU on Preventing and Combating Trafficking in Human Beings and Protecting its Victims

UNODC 2013

United National Office on Drugs and Crime Issue paper: Abuse of a position of vulnerability and other means within the definition of trafficking in persons 2013

UNODC 2011

The Role of Corruption in Trafficking in Persons 2011

USDOS

US Department of State

WOCON

Women's Consortium of Nigeria,

WOTCLEF

Women Trafficking & Child Labour Eradication Foundation,

DECISION AND REASONS

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) we make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant in this determination identified as HD. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings

Introduction
1

In this judgment, to which both members of the panel have contributed, the Upper Tribunal addresses the current situation in Nigeria for victims of trafficking in order to determine the appeal of HD and to give guidance on the risk of proscribed treatment for a Nigerian victim of trafficking. The matters in dispute between the parties are whether and to what extent a victim of trafficking returning to Nigeria is able to access sufficiency of protection and the consequential issue of internal relocation. The evidence concerning the trafficking process in the Nigerian context either goes unchallenged or is acknowledged not to be in dispute.

2

This means that we can set out a relatively brief overview of matters not in dispute 1 between the parties before moving on to a consideration of the evidence that is in dispute between the parties, which requires a detailed examination, in particular, of the significance of the NAPTIP evidence and the extent to which that evidence informs assessment of risk on return for women who have been trafficked to the UK for the purposes of sexual exploitation or for the purpose of domestic servitude.

3

Although victims of trafficking from Nigeria are male and female, adults and children, this judgment is specifically concerned with adult women, who may have been trafficked as children, but are, at the date of their adverse...

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