PO (Nigeria) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Carnwath,Lord Justice Thomas |
| Judgment Date | 22 February 2011 |
| Neutral Citation | [2011] EWCA Civ 132 |
| Docket Number | Case No: C5/2010/0768 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 February 2011 |
[2011] EWCA Civ 132
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
THE IMMIGRATION APPEAL TRIBUNAL
Before: Lord Justice Maurice Kay (Vice President of the Court of Appeal, Civil Division
Lord Justice Carnwath
and
Lord Justice Thomas
Case No: C5/2010/0768
APPEAL NO: AA/01314/2005
Miss Dinah Rose QC and Ms Parosha Chandran (instructed by Messrs Wilson & Co) for the Appellant
Miss Susan Chan (instructed by Treasury Solicitors) for the Respondent
Hearing date: 12 January 2011
Lord Justice Maurice Kay:
The appellant is a victim of human trafficking. She is a citizen of Nigeria. She was born on 5 July 1979 and arrived in the United Kingdom on 10 January 2005. She was brought here by a man called Osagie. He had persuaded her that he would employ her in his factory in this country. At the time, the appellant was living in poverty in Benin City. Her father had died before she was born and her mother had died when giving birth to her. She was brought up by an aunt to whom she was very close. She was convinced by Osagie's promises of financial security which would enable her and her aunt to escape from poverty. It was only after she and Osagie arrived in this country that she discovered his true purpose. It was to use her for his sexual gratification and that of two associates and to deploy and exploit her for purposes of prostitution. She was required to earn and hand over large sums of money, initially fixed at £20,000 but later raised to £50,000. Osagie's treatment of her was horrific. In March 2005 she escaped. On 31 March 2005, she was arrested. It soon became apparent that she was an illegal entrant. She told the police about Osagie and about her experiences at his hands. She was handed over to immigration officers who detained her. It was at that stage that she applied for asylum. A few days later she was released from detention and came into the care of a charity which provided her with accommodation and arranged for her to receive medical care. She has a diagnosis of severe depression and post-traumatic stress disorder. None of this is disputed.
On 13 April 2005, the Secretary of State refused the asylum application. Protracted proceedings in the AIT ensued. On 10 October 2005 Immigration Judge Malins allowed the appellant's appeal on asylum and human rights grounds. The Secretary of State sought and obtained an order for reconsideration. On 5 March 2007, Immigration Judge Grant dismissed the appellant's appeal on asylum, humanitarian protection and human rights grounds. On 24 October 2007, following an oral hearing, Sedley LJ granted her permission to appeal to the Court of Appeal. That appeal was allowed by consent pursuant to an order of Laws LJ dated 7 January 2008. Immigration Judge Grant's Determination was set aside and the case was remitted for further reconsideration. The Statement of Reasons attached to the order of Laws LJ expressly preserved some of the findings of Immigration Judge Malins in the original Determination. The Statement included these provisions:
"5. … It is further agreed that the issues of
(a) whether or not the appellant would be exposed to a real risk of persecution from her former trafficker in her home town; and
(b) whether the appellant was a member of a 'social group'
had been determined in the appellant's favour by the first Immigration Judge and were not matters which fell to be reconsidered at the second stage.
6. The parties are therefore agreed that the matters for redetermination on remittal should consist of –
(a) whether or not the Nigerian authorities could offer a sufficiency of protection to the appellant, whether in her home town or elsewhere in Nigeria;
(b) whether internal relocation would be unduly harsh;
(c) whether the appellant's claim under Article 8 and/or 3 should succeed …
7. It is further agreed that the AIT's findings at paragraph 12.1 and 12.2 of the first Determination should stand …"
The findings at paragraph 12.1 of the first Determination add little to what I have already related. Paragraph 12.2 states:
"(a) I find the appellant is a woman of 26, of basic education and no qualifications. She gave me the impression of being meek, vulnerable and generally unable to cope with the harsh situation in which she finds herself and possibly, too, with situations less harsh;
(b) the appellant has no family at all in Nigeria …
(c) the appellant came willingly to the UK in total ignorance of the true purpose of her journey arranged by Mr Osagie but rather expecting to secure mainline employment to improve her life and that of Aunt Becky – then still living …
(e) that the man who so efficiently arranged the appellant's trafficking is a professional violent criminal with a power base in Nigeria and probably in the UK and with easy ingress to and egress from the UK – however arranged …."
Paragraph 12.2 also incorporated at (e) part of the report of Ms Bisi Olateru-Olagbegi, an expert witness relied upon by the appellant, to which I shall return later.
On 28 July 2008, the appellant gave birth to a son. She is no longer in touch with the father. At some point since her arrival in this country, her aunt in Nigeria died.
When the remitted case was redetermined in the AIT, it came before a panel of three, including two Senior Immigration Judges. It had been identified as a suitable vehicle for giving country guidance. The Determination bears the citation PO(Trafficked Women) Nigeria CG [2009] UKAIT 00046.
The Determination of the AIT
The Determination runs to 221 paragraphs. It contains both country guidance and consideration of the specific case of the appellant. Its exposition is such that it is not always easy to see the full extent of the country guidance. However, it is clear that the AIT addressed at least the following general issues: (1) whether the Nigerian state provide a sufficiency of protection to victims of trafficking; (2) the availability and adequacy of shelters in Nigeria for such victims; and (3) the enhanced risk to a returned victim when she has been trafficked by a gang. As to the first issue, the AIT concluded that, in general, the Nigerian state is both able and willing to discharge its duty to protect its own nationals from traffickers. Although this had been disputed by the appellant through her expert witness, Ms Olateru-Olagbegi, she does not challenge this conclusion on appeal. What she does seek to challenge is the way in which the AIT approached the issue of shelters and its application of the guidance (but not the guidance itself) on gangs.
The findings of the AIT in relation to the appellant were that she and her child would receive adequate care and facilities in a shelter in her home area and that she had been the victim of an individual rather than a gang, with the result that she was not in the enhanced risk category. The AIT also went on to make the alternative finding that, even if (contrary to the primary finding) the appellant would be at risk in her home area, it would not be unduly harsh or unreasonable to expect her to relocate to another part of Nigeria "where facilities similar to those offered in Benin would be available to her and she would, in time, be given help in rehabilitation".
The present position and the grounds of appeal
Since the dismissal of her appeal by the AIT, the appellant and her child have been granted indefinite leave to remain in the United Kingdom. We are told that this was because of "other reasons" which have not been detailed to us. To that extent, the appeal is no longer of great personal consequence to her. However, nor is it of merely academic interest. There are two grounds of appeal. The first is in the form of a criticism of the country guidance on the adequacy of the shelters in Nigeria, it being suggested that the approach of the AIT to that issue was legally flawed. The second relates to the application of the guidance on the subject of gangs. For reasons to which I shall return, I am satisfied that we ought to continue to address it.
Ground 1 contends that a vital part of the guidance on the availability and adequacy of shelters was based on the irrational and procedurally inappropriate acceptance of material that was contained in an email which came to hand in the course of the hearing in preference to the evidence of the appellant's expert who had not been significantly challenged on this issue. It is a ground which has as much to do with fairness as with substance.
Ground 2 is concerned with the finding that the appellant was trafficked not by a gang but by an individual who acted alone in Nigeria. It is presented as a point of law in the formulation that the AIT
"erred in law by requiring the appellant to prove by personal evidence that her trafficker had operated as part of a gang in Nigeria as a necessary element in establishing that she would be at risk on return."
The point is of interest beyond the parameters of this case because, if the ground is well-founded, there is a mismatch between the guidance on gangs and (a) the way in which the AIT proceeded to apply it within the same country guidance case and (b) the way in which the guidance is summarised by the AIT itself in its headnote to this country guidance decision.
Ground 1: the guidance on shelters
At paragraphs 183–190 of its Determination, the AIT set out some of the evidence and conclusions about the availability of, and facilities in, shelters for victims...
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