MS (Trafficking – Tribunal’s Powers – Art. 4 ECHR)
| Jurisdiction | UK Non-devolved |
| Judge | THE HON. MR JUSTICE MCCLOSKEY |
| Judgment Date | 20 January 2016 |
| Neutral Citation | [2016] UKUT 226 (IAC) |
| Date | 20 January 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2016] UKUT 226 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
The Hon. Mr Justice McCloskey, President
Upper Tribunal Judge Blum
Appellant: Ms K Cronin and Ms B Poynor, of Counsel, instructed by ATLEU
Respondent: Mr T Wilding, Senior Home Office Presenting Officer
MS (Trafficking — Tribunal's Powers — Art. 4 ECHR) Pakistan
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(i) Having regard to the decision of the ECtHR in Rantsev v Cyprus and Russia [2010] 51 EHRR 1 , Article 4 ECHR, which outlaws slavery, servitude and forced or compulsory labour, encompasses also human trafficking.
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(ii) Trafficking decisions are not immigration decisions within the compass of the 2002 Act, with the result that judicial review provides the appropriate mechanism for direct challenge.
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(iii) Tribunals must take into account, where relevant, a decision that an appellant has been a victim of trafficking.
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(iv) Where satisfied that a negative trafficking decision is perverse, Tribunals are empowered to make their own decision on whether an appellant was a victim of trafficking.
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(v) Tribunals are also empowered to review a trafficking decision on the ground that it has been reached in breach of the Secretary of State's policy guidance.
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(vi) While, in principle it seems that other public law misdemeanours can also be considered by Tribunals, this issue does not arise for determination in the present appeal.
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(vii) Tribunals may well be better equipped than the Competent Authority to make pertinent findings relating to trafficking.
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(viii) The procedural obligations inherent in Article 4 ECHR are linked to those enshrined in the Trafficking Convention, Articles 10(2) and 18 in particular.
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(ix) Any attempt to remove a trafficking victim from the United Kingdom in circumstances where the said procedural obligations have not been discharged will normally be unlawful.
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI2008/2698) we make an Anonymity Order. Unless the Upper Tribunal or Court orders otherwise, no report of any proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This prohibition applies to, amongst others, all parties.
(1) The origins of this appeal are traceable to a decision made on behalf of the Secretary of State for the Home Department (hereinafter the “ Secretary of State”), dated 01 August 2013, whereby the application of the Appellant, a national of Pakistan aged 20 years, for asylum, was refused. This was followed by a decision dated 02 August 2013 to remove the Appellant from the United Kingdom. By its decision dated 03 December 2013, the First-tier Tribunal (the “ FtT”) dismissed the Appellant's ensuing appeal on both asylum and human rights grounds. Following a somewhat convoluted procedural course, permission to appeal to the Upper Tribunal was granted on 23 June 2014. By its decision dated 20 August 2014, this Tribunal (differently constituted) held that the decision of the FtT was vitiated by material error of law and ordered that same be set aside accordingly. We hereby re-make such decision.
(2) We draw attention to, firstly, [42] of the error of law decision of this Tribunal:
“[The FtT] misdirected [itself], firstly in omitting to make a clear finding as to whether or not the Appellant was a victim of trafficking, secondly in concluding that it was sufficient to ascribe to the Appellant a lower position on a spectrum of trafficking and in omitting clearly to evaluate the nature of the Appellant's employment in the United Kingdom and whether even if freely chosen by him it was nonetheless exploitative.”
Fundamentally, there was a failure to make any finding on the issues of whether the Appellant was trafficked to the United Kingdom and/or re-trafficked within the United Kingdom. In setting aside the decision of the FtT, Upper Tribunal Judge Goldstein expressly preserved certain findings, namely the FtT's “ positive credibility findings that related to the Appellant's circumstances in the United Kingdom ….”
(3) Under United Kingdom law decisions on trafficking under the Council of Europe Convention on Action Against Trafficking in Human Beings (the “ Trafficking Convention”) are made by the soi - disant “Competent Authority” (hereinafter “ the Authority”) under the so-called National Referral Mechanism (the “ NRM”), which operates under the auspices of the Home Office and, hence, the Secretary of State. We elaborate on this framework in [19] et seq. On 29 November 2012 one of the national social services agencies made a formal referral of the Appellant to the authority under the NRM. On 01 February 2013, the Authority made a decision that the Appellant, then aged 16 years, was not a victim of trafficking. While accepting that he had been recruited, transported, transferred to and harboured in the United Kingdom and had been the victim of deception, the Authority did not accept that the Appellant had been brought to the United Kingdom for the purpose of exploitation. The basis of this was that the Appellant had not made the case that he was coerced into working or that his freedom of movement had been curtailed.
In its decision the Authority stated, inter alia:
“In looking at the circumstances of your client's passage to the United Kingdom it is accepted that he has been subject to an act of recruitment, transportation, transfer, harbouring or receipt as it is not only accepted that his step-grandmother did accompany him to the United Kingdom, it is also accepted that he may have been deceived as to the true purpose of being brought to the United Kingdom. Your client has clearly stated that he was told by his step-grandmother he was being brought to the United Kingdom to study …..
Given that he was not enrolled in any form of study or education following his arrival it is accepted that he was potentially deceived as to the true purpose of being brought to the United Kingdom.”
The conclusion made was that there were no reasonable grounds for believing that the Appellant was a victim of trafficking within the compass of the Trafficking Convention ( infra).
(4) By a further decision dated 02 April 2014, postdating the decision of the FtT, the Authority notified the outcome of its reconsideration of its dismissal of the Appellant's trafficking claim. Focusing on the Appellant's life subsequent to his arrival in the United Kingdom, the Authority reasoned that, as the Appellant had received a salary, was able to rent accommodation and pay his bills and had moved around and worked in different jobs, he was not exploited and “ …. was never under the control or influence of the alleged traffickers in the UK”. Next, the Authority adopted the finding of the FtT that the Appellant had not been the victim of forced labour in the United Kingdom as there had been no threat or menace to him. At the height of the Appellant's case he may have been subjected to a degree of manipulation which did not amount to exploitation via forced labour. Rather, the Appellant worked “ out of pure economic necessity”.
(5) Next, the Authority reconsidered the Appellant's claim of having been trafficked to the United Kingdom by his step-grandmother. It reasoned that even if this were accepted the Appellant was not under the control of his traffickers when first encountered by the police in September 2012, with the result that he did not require time to recover from any trafficking experience. It is appropriate to reproduce this somewhat enigmatic passage in full:
“It is noted that you were not under the control of your alleged traffickers when you were encountered by the police in September 2012. It is therefore not considered that you would require further time to recover from your alleged trafficking situation. Furthermore, it is considered that as you left the accommodation that was provided to you by [WY] when you worked in the Kebab shop in August 2013, the benefit of a 45 day period of reflection and recovery would be limited in relation to the time you have already had to recover. Therefore it is not accepted that you require a period of time to recover from the influence of your traffickers.”
The decision maker then highlighted that the Appellant was not suffering from any medical condition and had not made any complaint to the police, continuing:
“In conclusion, for the reasons given above, even if your account of your alleged experiences was accepted, it is considered that you are still not a victim of trafficking for the purpose of the Convention and at the present time.”
(6) This is dated 01 August 2013. In the text the nub of the Appellant's claim is framed thus:
“If returned to Pakistan, you fear that your life is in danger from your step-grandmother and her son because they have taken your father's property from you, even though this is in your name. You fear your grandmother's nephews as well because they are criminals involved in dealing drugs and kill people.”
Continuing, the author suggests that a land dispute described by the Appellant was the reason for him leaving Pakistan and that the fear arising out of such dispute is not based upon a fear of persecution in Pakistan for a Convention reason. The decision maker then highlighted the inconsistent ages (eight or ten?) put forward by the Appellant relating to the death of his father and his inconsistent replies relating to siblings (none or two?). These two factors were considered to damage his credibility. The decision maker then concluded, highlighting the absence of any documentaryproof, that the Appellant's assertion of a land dispute with his step...
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