Upper Tribunal (Immigration and asylum chamber), 2020-07-27, PA/02558/2018
| Jurisdiction | UK Non-devolved |
| Date | 27 July 2020 |
| Published date | 10 August 2020 |
| Hearing Date | 09 July 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/02558/2018 |
Appeal Number: PA/02558/2018 (V)
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02558/2018 (V)
THE IMMIGRATION ACTS
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Heard at Cardiff Civil Justice Centre |
Decision & Reasons Promulgated |
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On 9 July 2020 remotely |
On 27 July 2020 |
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Before
UPPER TRIBUNAL JUDGE GRUBB
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
FYH
(ANONYMITY ORDER MADE)
Respondent
Representation:
For the Appellant: Mr C Howells, Senior Home Office Presenting Officer
For the Respondent: Ms G Capel, instructed by Wilson Solicitors
DECISION AND REASONS
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Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or court directs otherwise, no report of these proceedings shall directly or indirectly identify the respondent (FYH). This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to contempt of court proceedings.
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Although this is an appeal by the Secretary of State, I will for convenience refer to the parties as they appeared before the First-tier Tribunal.
Background
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The appellant is a citizen of China who was born on 15 May 1958.
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She claims that she came to the UK illegally in 2005 as a result of an arrangement made with a Snakehead in China to whom her family paid 20,000 RMB exclusive of interest.
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Having arrived in the UK, the appellant lived with her uncle for about twelve years.
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During that time, the appellant formed a relationship with a Mr L who had also been brought to the UK by Snakeheads. He was involved in a kidnap and ransom offence in respect of which the appellant gave the police a statement and Mr L was sentenced to twelve years’ imprisonment having been convicted in 2015.
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During her time with her uncle, he involved her in buying cannabis and in 2016 she was arrested in relation to that.
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The appellant worked as a cleaner. One of her customers, “A” wanted to have sex with her and, when she refused, he sexually assaulted her and did not let her leave. Subsequently, she was raped by a number of men over a period of time whom, she, were paying “A”. The appellant was, in effect, held in captivity at “A’s” house where men would come and have sex with her. “A” also involved her in drugs and she was eventually stopped and arrested for possession of drugs.
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Following her release from custody, she again went to live with “A” after she suggested that they enter a relationship and that she would only have sex with him and not other men. He agreed but throughout the relationship if the appellant refused to have sex with “A” he would threaten to bring other men to the house.
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The appellant had a key and, on behalf of “A”, collected drugs for him. She was again arrested in May 2017 and again in July 2017 for drug offences involving cannabis.
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Between 14 November 2016 and 8 May 2017, the appellant was convicted on three occasions for offences relating to controlled drugs, namely cannabis. In each case, she did not receive a custodial sentence.
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However, on 6 July 2017 she was convicted of possession with intent to supply a class B drug (cannabis) and of breach of a conditional discharge. On 17 August 2017, she was sentenced at the Wood Green Crown Court to eight weeks’ imprisonment.
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On 30 August 2017, the appellant was served with a notice of intention to deport her. On 4 September 2017, the appellant claimed asylum. There followed screening and asylum interviews on 28 November 2017 and 7 December 2017 respectively.
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On 9 February 2018, the appellant was referred by the Salvation Army to the National Referral Mechanism (“NRM”) and, on 26 February 2018, received a positive Reasonable Grounds decision that she was the victim of trafficking/modern slavery.
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On 22 January 2018, the Secretary of State refused her claims for asylum, humanitarian protection and human rights.
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On 18 December 2019, the NRM reached a Conclusive Grounds decision in her favour that she is a victim of trafficking/modern slavery.
The Appeal to the First-tier Tribunal
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The appellant appealed to the First-tier Tribunal. Following a hearing on 10 February 2020, Judge Rai allowed the appellant’s appeal. The judge accepted that the appellant had been trafficked to the UK and that there was a real risk of her being re-trafficked if she returned to China. The judge found that the Chinese authorities would not be able to provide her with a sufficiency of protection and that internal relocation was not reasonably open to her. On that basis, the judge allowed the appellant’s appeal under the Refugee Convention. The judge also allowed the appellant’s appeal under Art 8 of the ECHR.
The Appeal to the Upper Tribunal
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The Secretary of State sought permission to appeal to the Upper Tribunal. On 1 March 2020, the First-tier Tribunal (Resident Judge J F W Phillips) granted the Secretary of State permission to appeal. The grounds, upon which permission was granted, were that: (1) in allowing the appellant’s appeal the judge had failed properly to apply the relevant country guidance decisions in finding that the appellant would be at risk of being re-trafficked; and (2) in allowing the appeal under Art 8, the judge had wrongly found that the appellant was not a “foreign offender” on the basis that there was no public interest in her prosecution for the drugs offences given the circumstances.
The Hearing
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In the light of the COVID-19 crisis, the appeal hearing to determine whether the judge’s decision contained an error of law was listed for a remote hearing by Skype for Business. Neither party objected to the hearing being remote.
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As a consequence, on 9 July 2020, the appeal was listed before me to be heard by Skype for Business. I was based in the Cardiff Civil Justice Centre. Ms G Capel, who represented the appellant, appeared remotely by Skype. Mr Howells, who represented the Secretary of State, was unable to connect to the hearing by Skype due to problems with his broadband. However, he connected to the hearing by telephone and was content to proceed with the hearing on that basis.
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As a consequence, in addition the detailed written submissions made by the parties in response to the UT’s earlier directions, I heard oral submissions from Mr Howells and Ms Capel.
The Judge’s Decision
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Judge Rai heard oral evidence from the appellant. The judge accepted the appellant’s credibility and her account that led to her being recognised as a victim of trafficking/modern slavery. The judge’s factual findings in that regard are not challenged.
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Consequently, on the basis that the appellant was a victim of modern slavery by sexual exploitation and forced criminality in the UK together with her finding that the appellant had been trafficked to the UK by snakeheads, the central issues before the judge were (a) whether the appellant could establish a real risk of persecution on return to China at the hands of the snakeheads to whom she owed a debt including being re-trafficked to the United Kingdom; (b) whether, if that were the case, she could obtain a sufficiency of protection from the Chinese authorities; and (c) whether internal relocation was available to her.
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In reaching her findings, the judge was directed to a number of country guidance cases dealing with loan sharks or snakeheads. In addition, the judge had a number of expert reports: a country expert report by Joshua Kurlantzick, a trafficking report by Elizabeth Flint and a psychological report by Dr Martha Nikopaschos.
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The essence of the argument before the judge appears to have been that the country guidance decisions dating back to 2002 and 2009 had to be seen in the light of the expert evidence, in particular of Joshua Kurlantzick, which established that there was indeed a risk of re-trafficking by snakeheads and an insufficiency of protection from their actions by the state in China.
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The judge’s consideration of the country guidance cases is at paras 53–55 of her decision. There, she said this:
“53. The leading country guidance on loan sharks or Snakeheads is ZC & Others (Risk - illegal exit - loan sharks) China CG [2009] UKAIT 00028. It found that HL (Risk - Return - Snakeheads) China CG [2002] UKIAT 03683 is applicable. HL found that
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the totality of the evidence does not establish that a returning failed asylum seeker who is indebted to Snakeheads or loan sharks will come to harm on return to China.
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The principal reason for our conclusion that the appellant would not be at risk on return is the lack of any country information to indicate that would be at risk. Nevertheless, logic also supports this conclusion. The Snakeheads and loan sharks are violent and unscrupulous, but they are running what is likely to be a highly profitable business and would prefer to avoid actions which might damage that business. Violent or other persecutory actions against those who are returned to China would be unlikely to result in the recovery of much money, but would be likely to discourage future customers. Amongst...
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