Upper Tribunal (Immigration and asylum chamber), 2013-12-09, IA/17807/2010
| Appeal Number | IA/17807/2010 |
| Hearing Date | 16 September 2013 |
| Published date | 24 November 2022 |
| Date | 09 December 2013 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: IA/17807/2010
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/17807/2010
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 16th September 2013 |
On 9th December 2013 |
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Before
UPPER TRIBUNAL JUDGE REEDS
Between
I R
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Miss C. Robinson, Counsel instructed on behalf of LTP Solicitors
For the Respondent: Mr T. Melvin , Senior Home Office Presenting Officer
DETERMINATION AND REASONS
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The Appellant, a national of Sri Lanka born on 3rd August 1984, appeals with the permission against the decision of Immigration Judge Pygott dismissing the Appellant’s case that a return to Sri Lanka would put the UK in breach of its obligations under the Refugee Convention, Articles 3, 4 and 8 of the ECHR and the Council of Europe Convention on Action against Trafficking in Human Beings (“COE”).
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This appeal is subject to an anonymity direction that no report or other publication of these proceedings or any part or parts of them shall name or directly or indirectly identify the claimant. This direction has been made as the Tribunal is satisfied that the issues involve consideration of medical/psychiatric evidence. Reference to the claimant may be by use of his initials but not by name. Failure by any person, body or institution whether corporate or incorporate (for the avoidance of doubt to include either party to this appeal) to comply with this direction may lead to a contempt of Court. This direction shall continue in force until the Upper Tribunal (IAC) or an appropriate Court lifts or varies it.
Procedural History
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There is a considerable history in relation to this appeal. On 29th April 2008 the Appellant was granted a visa to the UK as a domestic worker in a Kuwaiti diplomatic household which was valid until 29th April 2009. The Appellant entered the United Kingdom on 4th May 2008. On 24th June 2008 the Appellant registered with Kalayaan (a charity which gives advice and support to migrants who enter the UK on a domestic worker visa) having contacted them after leaving her employment because of alleged abuse. She was later referred by Kalayaan to the UK Human Trafficking Centre (UKHTC) to the Home Office pilot project on labour trafficking, Operation Tolerance, which lasted from May to September 2008. On 22nd August 2008 UKBA wrote to the Appellant acknowledging there were reasonable grounds for believing that she had been trafficked and giving her 30 days’ temporary admission which would allow her time to recover and during which the police and other UK enforcement authorities may continue with their investigations and the UKBA may want to talk to her about her immigration situation. If there were reasons why she wished to remain in the UK or should not return to Sri Lanka she was told that she should contact the UKBA as soon as possible, for example, she may wish to apply for asylum or humanitarian protection.
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On 21st November 2008, the Appellant applied for variation of her leave to remain outside the Immigration Rules and to switch to a domestic worker in a non-diplomatic household in circumstances where she had been the victim of trafficking in her previous employment. That application was rejected on the grounds that it was invalid due to the incorrect form being used. The application was resubmitted on 20th April 2009 and on 11th May 2009, the Appellant submitted confirmation of employment with a contract with Chantille Sankaran from 20th April 2009 until 30th April 2010 as a domestic worker.
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It is recorded that the Appellant’s application for variation of leave to remain outside the Immigration Rules was put on the basis that the Council of Europe Convention on Action against Trafficking in Human Beings (CAAT) had been ratified and was due to be signed by the end of the year (2008) and as part of the UK’s commitment to the protection of victims of trafficking and therefore she should, exceptionally, be allowed to switch visas to enable her to continue working in the UK.
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On 6th October 2009 UKBA wrote to the Appellant’s solicitors noting that it was claimed that she was a victim of human trafficking and asked for an authorisation which would allow the UKBA to approach the relevant competent authorities. An extension of time was sought on the grounds that the Appellant had already been referred under the pilot and had been recognised as a potential victim of trafficking. On 2nd November 2009 UKBA replied stating that the Appellant’s previous application as a trafficked victim was part of the pilot and that further consideration as a victim of human trafficking, a signed declaration was required which would give permission to the UKBA to pass information to the other competent authorities.
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On 7th January 2010 the Respondent made a trafficking conclusive decision consideration (the first trafficking decision) in which it is recorded that the Appellant gave her consent to being entered on the National Referral Mechanism Process (NRM) on 5th October 2009 and for her trafficking claim to be considered by the competent authority. It appears that prior to the introduction of the NRM for potential victims of human trafficking, and as part of the trafficking pilot, the Appellant was identified as a potential victim of trafficking on 24th June 2008. However, that was the extent of the pilot and no further action was taken on her case. It was now concluded that, on the balance of probabilities, the Appellant had not been trafficked. The reason given in summary was that the agency through which she had come to the UK was a sister agency of the agency through which she had gone to Kuwait from Sri Lanka. The journey had been arranged with her consent and knowledge and that she knew her country of destination and the reason for coming to the UK which is as a domestic worker for a diplomat. Her account of contacting Kokilla within less than three months of coming to the UK was not credible. Over a year and a half had passed since the positive reasonable grounds decision in 2008 during which time she has taken up employment elsewhere, which demonstrated that she had overcome the difficulties she had encountered for the period of three months in 2008. Furthermore the subsequent employment had been taken up when her leave to remain in the UK had expired thus she was liable to be removed.
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On 14th January 2010, the Respondent refused the Appellant’s leave application following consideration of her rights under Article 8 of the ECHR. It was not accepted that she has family life in the UK and it was understood that she had family outside in Sri Lanka. As regards private life, whilst it was accepted that she had been in employment with a Kuwaiti diplomat, it had been concluded that she was not a victim of human trafficking.
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Thereafter the Appellant’s solicitors filed an application for judicial review of the Respondent’s decision refusing to recognise the Appellant as a victim of trafficking and an out of time Notice of Appeal was filed against the Respondent’s decision refusing to vary leave to remain and asking for an extension of time on 8th April 2010. On 25th May 2010 the Appellant’s solicitors sought an extension of time in order to obtain reports from Kalayaan, Anti-Slavery International and a psychologist as a result of which the hearing was postponed to 28th July. Further evidence came from Kalayaan by way of a report from Camilla Brown on 26th May 2010 followed by an addendum on 10th June. Other evidence included a report of Dr Neil Egnal (psychologist), a report from the Anti-Slavery International (from Clara Skrivankova) and the appeal hearing was postponed pending the outcome of the judicial review application and was listed for mention on 27th September.
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On 30th July 2010 the Respondent wrote to the Appellant’s solicitors withdrawing the first trafficking decision of 7th January 2010 and the Appellant was invited for interview and a new decision. Thus on 17th August the Appellant was interviewed and on 3rd September a further report from Kalayaan was produced.
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On 27th September 2010 a mention hearing took place where further directions were given relating to expert evidence and for the Respondent to make a fresh decision. The appeal was then again listed for further directions on 15th November.
In the interim a further report from Dr Egnal was produced and on 27th October 2010 the Appellant’s solicitors wrote to the Tribunal giving reasons why Dr Egnal’s report should not be disclosed. It was noted that issues previously had been whether the Appellant was a victim of trafficking and whether it would be a breach of her Article 8 to seek to remove her in violation of positive obligations under the CAAT, however the Appellant had recently made further disclosures of sexual abuse both in Sri Lanka and in the United Kingdom. It was said that the late disclosure of sexual violence or exploitation was said to be a common feature and known...
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