Upper Tribunal (Immigration and asylum chamber), 2019-09-03, [2019] UKUT 351 (IAC) (DC (Trafficking, Protection/Human Rights appeals))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Upper Tribunal Judge Gill, Upper Tribunal Judge Finch |
| Status | Reported |
| Date | 03 September 2019 |
| Published date | 13 November 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | Trafficking, Protection/Human Rights appeals |
| Hearing Date | 07 June 2019 |
| Appeal Number | [2019] UKUT 351 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
DC (trafficking: protection/human rights appeals) Albania [2019] UKUT 00351 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 7 June 2019 |
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………………………………… |
Before
THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE GILL
UPPER TRIBUNAL JUDGE FINCH
Between
DC
(ANONYMITY ORDER MADE)
Appellant
And
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr A Chakmakjian, Counsel, instructed by
Kilby Jones Solicitors LLP
For the Respondent: Mr I Jarvis, Senior Home Office Presenting Officer
Interpreter: Mr S Pashoja (Albanian)
In the light of the judgment of Flaux LJ in Secretary of State for the Home Department v MS (Pakistan) [2018] EWCA Civ 594 and subsequent decisions of the Upper Tribunal and Administrative Court, a tribunal deciding a protection or human rights appeal, which concerns alleged trafficking within the scope of the Council of Europe Convention on Action against Trafficking in Human Beings and decisions of the Competent Authority (CA) under the United Kingdom’s National Referral Mechanism, should proceed as follows:
(a) In a protection appeal, the “reasonable grounds” or “conclusive grounds” decision of the CA will be part of the evidence that the tribunal will have to assess in reaching its decision on that appeal, giving the CA’s decision such weight as is due, bearing in mind that the standard of proof applied by the CA in a “conclusive grounds” decision was the balance of probabilities.
(b) In a human rights appeal, a finding by the tribunal that the CA has failed to reach a rational decision on whether the appellant has been the victim of trafficking, such as to be eligible for leave to remain in the United Kingdom for that reason alone, may lead the tribunal to allow the human rights appeal, on the basis that removing the appellant at this stage would be a disproportionate interference with the appellant’s Article 8 ECHR rights. This scenario is, however, of narrow ambit and is unlikely to be much encountered in practice.
(c) In a human rights appeal, the question whether the appellant has been the victim of trafficking may be relevant to the issue of whether the appellant’s removal would breach the ECHR, even where it is not asserted there is a trafficking-related risk of harm in the country of proposed return and irrespective of what is said in sub-paragraph (b) above: e.g. where the fact of trafficking may have caused the appellant physical or psychological harm. Here, as in sub-paragraph (a) above, the CA’s decision on past trafficking will be part of the evidence to be assessed by the tribunal.
DECISION AND REASONS
A. INTRODUCTION
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This is the re-making of the decision in the appellant’s appeal against the refusal on 2 December 2017 by the respondent of the appellant’s protection and human rights claims. The decision of the First-tier Tribunal, which had allowed the appellant’s appeal by a decision dated 3 October 2018, was set aside in its entirety by Upper Tribunal Judge Gill in a decision dated 11 April 2019. That decision, in which the appellant is referred to as “DJ”, is annexed to this one.
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In refusing the appellant’s claims, the respondent accepted that the appellant was a citizen of Albania and that her claimed identity was correct. The respondent, however, rejected the assertion that the appellant had been the victim of sex trafficking and that she had been domestically abused by her father. The refusal letter drew upon the appellant’s asylum interview record, a letter from her representatives of 13 February 2017 and a letter from what was said to be a doctor in Albania dated 18 September 2015. From these, the respondent noted that the appellant claimed to be a member of a particular social group; namely, women who had been trafficked. Her father used to beat the appellant when he was drunk and the doctor’s letter said she had been mistreated by her family from 2009 to 2014.
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In May 2011, the appellant said she met a man whom we shall call B, with whom she began a relationship which lasted until August of that year. When the appellant attempted to end the relationship, B began blackmailing her to work as a prostitute. He threatened to show her family a sex video of the appellant that he had secretly made.
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On 26 August 2011, B came to the appellant’s family home to take her away. B informed the appellant’s father about the appellant being a prostitute, at which her father threw B from a balcony and then beat the appellant, who woke up at the home of her uncle, to find that she had been treated by a doctor. She stayed at her uncle’s from then on, occasionally going home to visit her mother. During this time, the appellant worked as a prostitute for B.
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In August 2015, B took the appellant to Italy by car for the purposes of prostitution. In Italy, the appellant met a client of B, called Lorenzo, who arranged her escape, using false documents. Lorenzo and the appellant travelled to France and then to Belfast, via Dublin. The appellant was detained in Belfast, attempting to take a ferry to Scotland.
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The appellant told the respondent that she feared persecution from B because he had forced her to work as a prostitute. She also feared ill-treatment and persecution from her father “because he is an alcoholic and beat you generally … and/or he is aware of your situation as a prostitute and will kill you because of this” (decision letter, paragraph 20).
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As we have already said, the decision stated that the appellant was not accepted to be the victim of trafficking. That is plain from paragraph 44, which reads: “Not accepted – You are a victim of trafficking” (original emphases). At paragraph 45, the reason given by the respondent for this conclusion was that the appellant had been referred to the Competent Authority (CA) under the National Referral Mechanism (NRM), which has the function of identifying victims of trafficking under the Council of Europe Convention on Action against Trafficking in Human Beings. Paragraph 45 of the refusal letter stated that the NRM (sic; presumably the CA was meant), having considered the appellant’s claim and all the available evidence, was of the “opinion that you are not a victim of trafficking. The reasons for this decision have been outlined in their conclusive decision letter dated 08 August 2016. Therefore in light of the NRM response, it is not accepted that you have been trafficked”.
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At paragraph 60, however, the letter stated that “as previously noted, it is accepted you were a victim of trafficking”. On this basis, the appellant’s case was, accordingly, assessed by the respondent by reference to the relevant country guidance on the risk on return to Albania of victims of trafficking: TD and AD (Trafficked Women) CG [2016] UKUT 00092 (IAC) and AM and BM (Trafficked Women) Albania CG [2010] UKUT 80.
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Applying that country guidance to the appellant’s circumstances, as the respondent considered them to be, the respondent concluded that the appellant would not be at real risk of serious harm on return to Albania, as someone who had been the victim of trafficking. Amongst the factors considered were the appellant’s level of education (having completed school at age 18 and started university) and the fact that the appellant would be returning with an illegitimate child, born in the United Kingdom. It is clear from paragraph 65 of the decision letter that the respondent considered the father of the child was Lorenzo; in any event, the respondent took the position that the child would be able to call on its father for support...
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