SB (PSG – Protection Regulations – R 6)
| Jurisdiction | England & Wales |
| Judge | Senior Immigration Judge |
| Judgment Date | 26 April 2007 |
| Neutral Citation | [2008] UKAIT 2 |
| Court | Asylum and Immigration Tribunal |
| Date | 26 April 2007 |
[2008] UKAIT 2
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Senior Immigration Judge Gill
Designated Immigration Judge Digney
Mr. M. L. James
For the Appellant: Ms. P. Chandran, of Counsel, instructed by Hammersmith & Fulham Community Law Centre (HFCLC).
For the Respondent: Mr. P. Patel, of Counsel, instructed by The Solicitor to HM Treasury.
SB (PSG — Protection Regulations — Reg 6) Moldova CG
1. If individuals share a common background which is an immutable characteristic they cannot change and which defines the group by giving it a distinct identity in the society in question which has nothing to do with the actions of the future persecutors, then the group exists independently of the feared future act(s) of persecution. It is not necessary to show general discrimination as an identifying characteristic of the group.
2. “Former victims of trafficking” and “former victims of trafficking for sexual exploitation” are capable of being members of a particular social group within regulation 6(1)(d) because of their shared common background or past experience of having been trafficked.
3. The word “and” in regulation 6(1)(d) of the Protection Regulations should be given its natural meaning.
4. In the context of Moldovan society, a woman who has been trafficked for the purposes of sexual exploitation is a member of a particular social group within regulation 6(1)(d), the particular social group in question being “former victims of trafficking for sexual exploitation”. Whether a particular individual is at risk of persecution for membership of that group needs to be decided on the facts of the case.
This is an up-grade appeal under section 83(2) of the Nationality, Immigration and Asylum Act 2002 (as amended) by the Appellant, a national of Moldova in her twenties, against the decision of the Respondent of 4 October 2006 to refuse her application for asylum and to grant humanitarian protection for five years. The Appellant was granted limited leave until 3 October 2011. Under section 83(2), an appeal may only be brought on asylum grounds. Accordingly, Ms. Chandran confirmed that previous grounds under Articles 3 and 8 are not being pursued. The Respondent's decision was served on the Appellant on 27 October 2006, that is, after the coming into effect on 9 October 2006 of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (the Protection Regulations) and Command paper 6918 (Cmnd 6918) which amended the Immigration Rules. These implement Council Directive 2004/83/EC of 28 April 2004 (the Qualification Directive).
The Appellant had been trafficked into the United Kingdom for the purposes of sexual exploitation. She subsequently gave evidence against the person responsible for her sexual exploitation in the United Kingdom (who we will hereafter refer to as Z), which resulted in the successful prosecution of Z. Z received a term of imprisonment in excess of five years, for offences of controlling prostitution and false imprisonment. Z is now at large. The Appellant fears harm at the hands of Z, Z's family and Z's associates if she is returned to Moldova. The Respondent's “Reasons for refusal” letter dated 4 October 2006 sets out a detailed summary of the Appellant's evidence in relation to her asylum claim. No issue has been taken with that summary, nor is credibility in issue in this case. It is not only unnecessary but inadvisable for the Tribunal to set out the facts relating to the Appellant's case in any greater detail. In order to preserve anonymity, we will only refer to the subjective facts to the extent necessary for our determination of the issues in this case. This should not, however, be taken as an indication that we have not considered the subjective evidence fully, or that we have reached our decision in ignorance of any particular aspect of the subjective evidence.
At paragraph 29 of the refusal letter, the Respondent stated that the Appellant's case was considered to be exceptional. The reasons were the fact of Z's trial, that Z has a wide network of contacts throughout Eastern Europe and the Appellant had given evidence that Z's associates are still in Moldova and that the trafficking operation is still ongoing. The combination of “the particular nature of this gang” and the Appellant's personal profile led the Respondent to conclude that the Appellant's case is “exceptional”. However, the Respondent does not accept that, in general terms, there is insufficient protection for trafficked women or women at risk of trafficking in Moldova, nor does he accept that it would not be safe generally for such women to relocate internally. However, the Respondent does accept that, whilst the Moldovan authorities are willing to offer protection to the Appellant, they are unable to offer sufficient protection in her particular case, because of the exceptional facts of her case. Before us, Mr. Patel confirmed that the Respondent accepts that the Appellant would not be able to obtain sufficient protection in Moldova and that she would not be able to relocate safely in Moldova.
At the hearing, the issues between the parties were agreed to be as follows:
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(a) whether the Appellant is a member of a particular social group;
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(b) whether the risk of any future persecution would be for a Geneva Convention reason or ground — i.e. whether the Appellant is at real risk of persecution by reason of her membership of the particular social group. This is the causation question.
Ms. Chandran sought to rely on an unreported determination of the Immigration Appeal Tribunal (IAT) under reference: 00TH00728, notified on 17 May 2000. We will refer to this case as LD Ukraine. Ms. Chandran submitted that the Tribunal would be materially assisted by this decision, for the reasons set out in the “amended application” dated 24 April 2007 which was served with a cover letter from HFCLC of the same date. Ms. Chandran wished to rely on paragraphs 28 to 30 of LD Ukraine.
Mr. Patel objected to the application to rely on LD Ukraine, because paragraphs 17.8 and 17.9 of the Practice Directions had not been complied with. In his submission, the Tribunal would not be materially assisted by the decision in LD Ukraine, for the reasons given at paragraphs 52 to 54 of his skeleton argument.
We decided that we would admit the LD Ukraine decision de bene esse, as we considered it difficult to assess whether the decision would materially assist the Tribunal in isolation from the parties' substantive submissions on the issues before us.
We should mention that, at the commencement of the hearing on 25 April 2007, the parties were in agreement on one matter which had previously been in issue. This concerns the effect of a successful appeal on asylum grounds under section 83(2) on a previous grant of humanitarian protection. Mr. Patel explained that the Respondent's position is that, if the appeal is successful, the grant of humanitarian protection to the Appellant will convert to asylum status. In that event, the Respondent's practice is to issue a confirmatory letter. However, this would not result in any changes (whether in terms of conditions attached or the duration of the leave) to the limited leave of 5 years' duration, which has already been granted. Prior to the last date of the limited leave, the Appellant would be able to apply for indefinite leave to remain in the same way as she would have been able to if the protection-status granted to her had remained as humanitarian protection. Ms. Chandran confirmed her agreement to this. Accordingly, this matter was not pursued any further.
It was initially thought that this appeal would be heard with up-grade appeals by two Romanian nationals which raised the same legal questions we have set out at paragraph 4 above. To assist the Tribunal, the Treasury Solicitor undertook to serve a consolidated bundle of documents (agreed by both parties) for all three appeals. In the event, it was not possible to complete the hearings of the two Romanian cases, whereas the hearing in respect of the Appellant's appeal was concluded on 26 April 2007. This explains the presence of documentary material relating to Appellants “MM” and “EM” and background evidence relating to Romania in the bundles before us.
The Tribunal confirms receipt of a letter dated 30 April 2007 from HFCLC together with the skeleton argument of Mr. Nicholas Jariwala (who we understand is a Home Office Presenting Officer), referred to by the expert Ms. Rebecca Surtees in her “comments” dated 13 February 2007. The expert's evidence is relied upon to support the Appellant's argument that she is a member of a particular social group. We requested Mr. Jariwala's skeleton argument to be submitted because Ms. Surtees referred to it in her “comments”.
The parties' detailed submissions are set out in their respective skeleton arguments. The following is a summary of their main arguments.
Ms. Chandran suggested three possible “particular social groups”, as follows:
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(i) women in Moldova;
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(ii) former victims of trafficking in Moldova; and
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(iii) victims of trafficking for the purposes of sexual exploitation.
Ms. Chandran submitted that discrimination does not need to be one of the identifying characteristics or features of a particular social group. Baroness Hale of Richmond in ex parte Hoxha [2005] UKHL 19 (at paragraph 37) said that women who have been victims of sexual violence in the past are linked by an immutable characteristic which is at once independent of and the cause of their current ill-treatment. Accordingly, in Ms....
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AM and BM (Trafficked women)
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Upper Tribunal (Immigration and asylum chamber), 2009-01-27, [2008] UKAIT 91 (AM and AM (Armed conflict: risk categories))
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