Upper Tribunal (Immigration and asylum chamber), 2009-11-23, [2009] UKAIT 46 (PO (Trafficked women))
| Jurisdiction | UK Non-devolved |
| Judge | Mr R Chalkley, Mr A Jordan, Mrs M Roe |
| Status | Reported |
| Date | 23 November 2009 |
| Published date | 23 November 2009 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 13 November 2009 |
| Subject Matter | Trafficked women |
| Appeal Number | [2009] UKAIT 46 |
Asylum and Immigration Tribunal
PO (Trafficked Women) Nigeria CG [2009] UKAIT 00046
THE IMMIGRATION ACTS
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Heard at Field House |
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On 6th November, 2008 And on 7th January, 2009 And on 13th January, 2009 |
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Before
Senior Immigration Judge Chalkley
Senior Immigration Judge A Jordan
Mrs M L Roe
Between
PO
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms P Chandran of Counsel instructed by Wilson & Co
For the Respondent: Mr E Tufan, Home Office Presenting Officer
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In general terms, women and girls in Nigeria do not face a real risk of serious harm from human traffickers, but the risk is heightened for females under 40 years of age living in suburban areas with a poor level of education. However, where it can be shown that an individual does face a real risk of being forced or coerced into prostitution by traffickers, the issue of whether she will be able to access effective protection from the authorities will need to be carefully considered in the light of background evidence.
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There is in general no real risk of a trafficking victim being re-trafficked on return to Nigeria unless it is established that those responsible for the victim’s initial trafficking formed part of a gang whose members were to share in the victim’s earnings or a proportion of the victim’s target earnings in circumstances where the victim fails to earn those target earnings. It is essential that the circumstances surrounding the victim’s initial trafficking are carefully examined.
DETERMINATION AND REASONS
1. The appellant is female, a citizen of Nigeria and was born on 5th July, 1979. She appeals against the decision of the respondent, taken on 19th April, 2005, to direct her removal as an illegal entrant.
Immigration history
2. This appeal has a lengthy history. The appellant entered the United Kingdom on 10th January, 2005, and claimed asylum on 1st April, 2005. The appellant travelled to the United Kingdom with a “Mr Osagie” who, unbeknown to the appellant at the time, brought the appellant to the United Kingdom for the purposes of working as a prostitute. Mr Osagie retained the appellant’s passport, which he had obtained in her name and which included a visa for the United Kingdom. She is an orphan who had been cared for by her aunt “Becky” for whom she had worked since the age of 12, selling water in her home city, Benin City, Edo State.
Basis of the appellant’s claim to asylum
3. The appellant met Mr Osagie who, like the appellant, lived in Edo State and she sometimes met him at her church, although, when there was no Sunday church service, he used to visit her. He was, apparently, well-known in Benin City and he told her when they arrived in the United Kingdom that he was bringing girls into the United Kingdom for prostitution. He had previously told her that he was a businessman in Nigeria and persuaded the appellant to travel to the United Kingdom, because he had promised her a job working in his factory in the United Kingdom.
4. The appellant fears return to Nigeria, because, she claims, she is at risk from people traffickers. She fears being re-trafficked, either by the same people or by a different gang and also fears retribution from members of Mr Osagie’s trafficking gang who, because the appellant escaped, will not have been paid for the various roles that they have played in her transportation to the United Kingdom. Additionally, the appellant believes that she would have difficulty in obtaining accommodation and employment and this would increase the risk to her from the people trafficking gangs.
Appeal history
5. The appellant’s appeal was first heard on 27th September, 2005, at Hatton Cross before IJ Malins. On 21st November, 2006, a panel of the Tribunal (Waumsley and Spencer SSIJ) concluded that IJ Malins had materially erred in law in her determination and ordered a reconsideration hearing before a different Immigration Judge. In doing so, the panel decided that IJ Malin’s findings of fact, recorded by her at paragraphs 12.1 and 12.2 of her determination, were to be preserved, “unless further evidence emerges during the stage two reconsideration hearing which demonstrates that the appellant’s account is not in fact true”.
6. We have set out at paragraph 9 below, IJ Malin’s findings at paragraphs 12.1 and 12.2 of her determination.
7. The appeal was then heard on 26th February, 2007 by IJ Elizabeth Grant. She dismissed the appellant’s asylum appeal, humanitarian protection appeal and human rights appeal in a determination promulgated on 5th March, 2008. The appellant sought an order for reconsideration, which was refused.
8. The appellant subsequently appealed to the Court of Appeal. In granting leave to appeal on 24th October 2007, Sedley LJ said this:
“1. The appellant, represented today by Ms Chandran, is a young Nigerian woman who was brought to this country by a man who I think can be briefly and accurately described as a Nigerian gangster, for the purposes of enforced prostitution. After months of repeated rape she escaped and, with the help of the Poppy Project, sought refuge and protection here. Her reward has been the decision of the Home Office to send her back to Nigeria.
2. An Immigration Judge (Mrs Malins) allowed her appeal, holding her entitled to both refugee and humanitarian protection. The Home Office’s appeal to the AIT, however, secured a reconsideration on all issues except certain specified facts which had been determined by Mrs Malins in the appellant’s favour. Although it now appears from the pink form (as it is called) that the reconsideration was formally directed to be before a panel of two Immigration Judges, one of them to be a Senior or Designated Immigration Judge, in the event it was re-heard by a single Immigration Judge, Mr Grant (sic) who reached a decision opposite to that of Immigration Judge Malins.
3. This question of the constitution of the Tribunal, in my view, itself calls for investigation. In the reasons given by the judges conducting the first stage of the reconsideration decision, at paragraph 21, reference is made to ‘a full stage II reconsideration before a different Immigration Judge’ – which conflicts with the order itself to which I have referred. This is a matter which I think requires attention because it is arguable that if the direction was for a two judge panel, the single judge second-stage reconsideration was a nullity.
4. This is a ground which I have given Ms Chandran leave to add because it is only on the late disclosure of the pink form that it has come to her attention. But she seeks permission to appeal against the determination on a number of grounds, which I have to say at once Auld LJ, on consideration of the papers, considered to be no more than challenges to fact-finding in what was, for better or worse, a thorough and careful determination.
5. On renewal, however, Ms Chandran submits that her case is, in more than one respect, a viable legal challenge and not merely a dispute about the facts. The first ground is that the first stage Tribunal – having found two discrete errors of law, namely in relation to internal relocation and sufficiency of protection - ought to have limited the second stage to these two matters and not to set the whole case (bar the fact-findings in paragraphs 12.1 and 12.2) at large again. She cites in her skeleton argument sufficient authority in this court to give the point life, albeit it is a point which she has been able to take only (in relation to the other point) on sight of the pink form.
6. The submission which needs to be added to the grounds (and again, for which she needs and has my leave) is that the second Immigration Judge ought therefore not to have re-determined the issues of whether the appellant’s fears were well-founded and whether she was a member of a particular social group, both of which had been determined in her favour and as to which no error of law had been found.
7. If the well-foundedness of the appellant’s fears was legitimately before the second Tribunal, it is submitted that the Immigration Judge’s decision on it is flawed by his failure to take into account the expert in-country evidence of Ms Olateru-Olagbegi, which had been accepted and accorded weight by the first Immigration Judge. This, too, with great respect to the contrary view of Auld LJ, I consider to be arguable as an issue of law and not merely of fact because it is evidence which is capable of having had a critical impact on the outcome. With it goes a submission that other in-country evidence going to the sufficiency of protection and emanating from the US State Department and UNHCR has also been ignored. There may, in my view, be substance in Ms Chandran’s contention that the second Immigration Judge has cherry-picked unfairly among the...
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