Upper Tribunal (Immigration and asylum chamber), 2016-02-15, AA/11378/2014
| Jurisdiction | UK Non-devolved |
| Date | 15 February 2016 |
| Published date | 02 December 2016 |
| Hearing Date | 09 February 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | AA/11378/2014 |
Appeal Number: AA/11378/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11378/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 9th February 2016 |
On 15th February 2016 |
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Before
UPPER TRIBUNAL JUDGE blum
Between
[H N]
(anonymity direction MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms M Mac, of Mac & Co Solicitors
For the Respondent: Ms A Brocklesby-Weller, Home Office Presenting Officer
DECISION AND REASONS
Background
1. This is effectively a fresh hearing following the Upper Tribunal’s decision to allow an appeal by the Secretary of State against a decision of Judge of the First-tier Tribunal Foulkes-Jones who, on 18th April 2015, allowed the asylum appeal of [HN] (the Appellant).
2. The Appellant is a national of Vietnam, born in 1996. She arrived in the United Kingdom on 14th April 2011, aged 14, and claimed asylum the next day. She claimed to fear individuals or a gang who were owed gambling debts accrued by her father, whom she last saw in February 2007. Shortly after her father’s departure from the Appellant’s life some four to five men came to her home, where she lived with her mother and grandmother, and requested money to pay off the debt. The Appellant is unclear as to who these men were and she did not know whether the authorities were ever involved or were ever alerted. The Appellant left school at a young age and instead sold vegetables, washed dishes, waitressed and tidied in small restaurants. Her mother died of natural causes in July 2009.
3. At the beginning of 2010, as a result of issues relating to the payment of the debt, the Appellant was stabbed and threatened with abduction unless the debt was settled. Her grandmother ensured that a further ten months were given to enable the debt obligation to be met. Unbeknownst to the Appellant her grandmother then sold her house and arranged for the Appellant to leave Vietnam. The Appellant arrived in this country and was placed in foster care. Soon after she was approached by a Vietnamese man in a public library, taken to London and held against her will. She was subjected to ill-treatment, including being raped, and made to cook and clean the man’s flat. She believed, at one stage, that she overheard other men talking about her grandmother and her father’s debt, but she could not be sure as they were talking a mixture of Vietnamese and Chinese. She managed to escape in September 2011 and was placed with a separate foster family. There have since been no further incidents of concern. At the time of the Respondent’s decision refusing her asylum and human rights claim the Appellant maintained that she was in a relationship with a Vietnamese national granted ILR and that they were expecting a child.
4. There had been some significant delay by the Respondent in determining the asylum claim, the decision under appeal being 3rd December 2014. In her refusal letter the Respondent accepted the Appellant’s account in full. The Respondent concluded however that there would be a sufficiency of protection available to the Appellant, alternatively that she could avail herself of the internal relocation alternative.
5. The First-tier Tribunal allowed the Appellant’s appeal on the basis that there was conspicuous unfairness arising from the Respondent’s failure to engage in her tracing obligations under Regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005. The First-tier Tribunal Judge found that the Appellant had been deprived of access to the best evidence with which to prove her case. The failure to engage to the full extent with her obligations to trace the Appellant’s grandmother meant that there was no further evidence as to whether the incidents with the gang had been reported to the authorities, or relating to the influence and reach of the gang and whether the gang consisted of non-state actors. Applying the principles enunciated in Rashid, R (on the application of) v Secretary of State for the Home Department [2005] EWCA Civ 744 the appeal was allowed and the matter remitted to the Respondent in order for an appropriate period of leave to be granted.
6. The Respondent was granted permission to appeal that decision and, shortly before the error of law hearing in the Upper Tribunal, the Supreme Court handed down its decision in TN and MA (Afghanistan) [2015] UKSC 40. At paragraphs 52 and 53 of TN the Supreme Court considered the decision of the Court of Appeal in EU (Afghanistan) [2013] EWCA Civ 32. In that case Sir Stanley Burnton identified difficulties with the Rashid principle. Sir Stanley Burnton acknowledged that the Secretary of State for the Home Department’s breach of her tracing duty could have evidential relevance because, in assessing the risk to a claimant on return to his or her country of nationality, the lack of evidence from the Secretary of State for the Home Department as to the availability of familial support was a relevant factor. At paragraph 53 of TN the Supreme Court said this:
“On this approach, it is not for the Tribunal or the Court, in considering a claim for asylum, to try to compensate the claimant for some past breach of duty which does not affect the question whether he is presently exposed to a risk entitling him to the protection of the Refugee Convention.”
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At paragraphs 71 and 72 of TN the Supreme Court indicated that the principles enunciated in Rashid were not to be followed. At 72 Lord Toulson stated:
“I would hold that the Ravichandran principle applies on the hearing of asylum appeals without exception, and Rashid should no longer be followed. The question whether the appellant qualifies for asylum status is not a question of discretion. It is one which must be decided on the evidence before the Tribunal or court.”
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In my decision promulgated on 15 July 2015 I was satisfied that the First-tier Tribunal did make a material error in law in allowing the appeal on Rashid principles. There had been no substantive consideration as to whether a sufficiency of protection was, as maintained by the Respondent, available to the Appellant. Nor did the First-tier Tribunal consider the viability of internal relocation or the Appellant’s Article 8 claim in relation to her partner and the lengthy delay by the Secretary of State.
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I decided however to adjourn the appeal in light of what the Supreme Court said at paragraph 73 of its judgement in TN.
“There remains the question how the Tribunal should approach an asylum appeal where the respondent has failed in her tracing obligation. If the appellant believes that he may have been prejudiced, it would be open to him to ask the respondent to attempt to carry out a tracing process and to ask the Tribunal to adjourn the appeal for that to be done. There would be force in the argument that it should not make a difference whether the appellant has by then turned 18, since that would not remove an obligation which had arisen under the Reception Directive and the effects of which were intended to last beyond their minority.”
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I directed the Respondent to undertake her tracing obligations owed to the Appellant, to be completed before the adjourned hearing. This was because there was a possibility that the grandmother, if traced, could assist in determining a number of issues relevant to the issue of sufficiency of protection and internal relocation. These include, inter alia, 1) whether the debt owed by the Appellant’s father remains outstanding and the amount of the debt; 2) whether any of the debt owed to the gang was used to pay for the Appellant’s journey to the United Kingdom (although the Appellant was informed by an agent that her grandmother had sold the house she does not know this to be the case for certain); 3) the scope of influence and the degree of reach of the criminal gang, either locally or nationally; and 4) whether the criminal gang consists of non-state agents or whether there are state agents involved. All of these are factors relevant to the assessment of the Appellant’s claim to be a refugee. I additionally granted the Appellant permission to file further evidence for the adjourned hearing, both in respect of her asylum claim and in respect of her Article 8 human rights claim.
Further documents submitted
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I received a ‘Family Tracing Report’ dated 27 July 2015 from the Respondent. From the Appellant I was provided with a short bundle consisting of a brief skeleton argument, a brief statement from [DH], the Appellant’s partner, dated 02 February 2016, a copy of his immigration status document, a certified copy of the birth certificate relating to the Appellant’s child (indicating that the Appellant’s partner was the father), some NHS correspondence relating to the registration of the Appellant and her child with a GP, and a 4 page USSD report on the trafficking in persons in Vietnam, dated 27 July...
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