Upper Tribunal (Immigration and asylum chamber), 2019-05-07, PA/02544/2018
| Jurisdiction | UK Non-devolved |
| Date | 07 May 2019 |
| Published date | 05 July 2019 |
| Hearing Date | 15 April 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | PA/02544/2018 |
Appeal Number: PA/02544/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02544/2018
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 15 April 2019 |
On 07 May 2019 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE SYMES
Between
ERMIRA [K]
(ANONYMITY ORDER NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms G Loughran (Waterstone Solicitors)
For the Respondent: Ms Holmes (Senior Presenting Officer)
DECISION AND REASONS
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This is the appeal of Ermira [K], a citizen of Albania born [~] 1990, against the decision of the First-tier Tribunal of 31 October 2018, dismissing her appeal against the refusal of her asylum claim and human rights claims, themselves refused by a decision of the Respondent of 7 February 2018.
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Taking as the starting point the summary of the claim given by the First-tier Tribunal, the Appellant arrived in the UK by lorry on 18 December 2015 having left Albania on 15 October 2015. The Appellant's claim for asylum was based on the fact that, having been trafficked into prostitution from September 2014 to April 2015, she feared serious harm either at the hands of her traffickers who would wish to punish her for escaping from them, or at the hands of her father who would punish her for bringing shame on the family. She escaped from her traffickers and stayed at a friend’s house for over a month, where she met [VT], who she married in [~] 2015.
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She and her husband subsequently left the country together. She separated from her husband during the journey after he discovered that she had previously worked as a prostitute. Her daughter [AK] was born here on 21 December 2015. The documents did not establish the identity of [A]’s father.
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She attended a screening interview on 1 February 2016 and had an asylum interview on 21 April 2016. She was then referred to the National Referral Mechanism for a determination of whether she was a victim of modern slavery. The NRM issued a negative decision on that claim.
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The parties agreed before the First-tier Tribunal that no further evidence should be given by the Appellant in relation to her asylum claim, in the light of their understanding that the authority of AUJ Bangladesh limited the Tribunal’s jurisdiction in these cases, to an enquiry into whether the competent authority’s decision within the NRM mechanism was perverse or irrational. Only if the Tribunal so concluded would it be able to re-determine the issue for itself, taking account of all material matters including evidence postdating the NRM decision. Nevertheless, in the course of submissions the Appellant's counsel referred to the different standard of proof governing asylum claims to that governing the trafficking determination process, and submitted that “The decision was perverse as the evidence has moved on.”
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The First-tier Tribunal concluded that the Secretary of State had correctly identified aspects of her account that were indeed inconsistent and implausible. Thus the NRM’s decision was not irrational and thus that no further evidence was admissible before it.
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She would not face serious harm as a single female returning with a child because the evidence regarding the problems such individuals faced was inapplicable to an educated returnee with family members to help her. There was some evidence of mental health and PTSD issues, but no up-to-date report had been forthcoming; the available evidence could not cross the Article 3 threshold, and any private life she had established in the UK was established whilst her residence was precarious.
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Grounds of appeal forcefully contended that the approach taken by the First-tier Tribunal was legally untenable in the light of the governing authorities for determining an asylum or human rights appeal raising trafficking issues, the Judge having deprived the Appellant of the effective remedy that European Union law demanded and made a decision on refugee status incompatibly with the standard of proof mandated by Karanakaran, and that this was the case whether or not the Appellant's former advocate had been complicit in the approach adopted.
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Before me Ms Holmes accepted that the First-tier Tribunal had plainly erred in law given the legal framework as explained by decisions such as AUJ. Ms Loughran agreed, with appropriate concision.
Findings and reasons
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As the advocates before me joined in accepting that the approach of the First-tier Tribunal was flawed I can be brief in my reasoning. Appeals arising out of trafficking claims will sometimes mean that the available material before a Judge will include a decision under the NRM process from the competent authority.
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For a period the proper approach was put in doubt by the decision of the Court of Appeal in MS (Afghanistan) [2018] EWCA Civ 594, where it was held that in circumstances where a negative trafficking decision by the Competent Authority had not been challenged by way of judicial review, the First-tier Tribunal may only entertain an indirect challenge to such a decision if the trafficking decision is demonstrated to be perverse or irrational or one which was not open to the Competent Authority. In AUJ (Trafficking – no conclusive grounds decision) Bangladesh [2018] UKUT 200 (IAC) the Upper Tribunal touched upon this issue, opining:
“62. In my view, applying AS (Afghanistan) and MS (Afghanistan), cases in which the Competent Authority has reached a " Conclusive Grounds decision" should be approached as follows:
(i) Where there is a positive " Conclusive Grounds decision" and the Secretary of State has complied with her duty to provide reparation are unlikely to come before the Tribunal before such time as the individual concerned is refused a renewal of his residence permit and faces removal. In such cases, the judge should not go behind the decision of the Competent Authority that the appellant was a victim of trafficking or modern slavery. The focus will be on whether removal of the appellant at that stage would be in breach of the United Kingdom's obligations under the Refugee Convention or in breach of his rights under the ECHR.
(ii) In cases in which the Competent Authority has reached a negative " Conclusive Grounds decision" but the appellant continues to rely (in his statutory appeal) upon evidence that he has been a victim of trafficking or modern slavery, the judge should decide, at the start of the hearing and before oral evidence is given, whether the decision of the Competent Authority was perverse or irrational or not reasonably open to it. At this stage, evidence subsequent to the decision of the Competent Authority must not be taken into account. If (and only if) the judge concludes that the Competent Authority's decision was perverse or irrational or one that was not reasonably open to it, that the judge can then re-determine the relevant facts and take account of subsequent evidence.”
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However, in the context of a decision that was more directly on point, the Upper Tribunal revisited the issue in ES [2018] UKUT 335 (IAC):
“1. Following the amendment to s 82 of the Nationality, Immigration and Asylum Act 2002 ('the 2002 Act'), effective from 20 October 2014, a previous decision made by the Competent Authority within the National Referral Mechanism (made on the balance of probabilities) is not of primary relevance to the determination of an asylum appeal, despite the decisions of the Court of Appeal in AS (Afghanistan) v SSHD [2013] EWCA Civ 1469 and SSHD v MS (Pakistan) [2018] EWCA Civ 594.
2. The correct approach to determining whether a person claiming to be a victim of trafficking is entitled to asylum is to consider all the evidence in the round as at the date of hearing, applying the lower standard of proof.”
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The Judge in ES noted that her predecessor in AUJ had made comments which appeared to support the construction of MS (Afghanistan) at one time preferred by the Secretary of State (and adopted by the First-tier Tribunal below), but which did not form any part of the head note to the decision and which were thus “clearly obiter.”
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The thinking in ES is at one with the observation of Farbey J in MN [2018] EWHC 3268 (QB) §60-4 that the Court of Appeal in MS (Pakistan) was not aiming to change the function of the Tribunal in asylum and Article 3 cases – the lower...
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