EK v The Secretary of State for the Home Department

“12. Proceedings on appeal to Upper Tribunal

“28. …He, SIJ Waumsley, had no need for any further error of law to give him jurisdiction to deal anew with Mr Kizhakudan’s appeal. He already had the common ground error of law in relation to the proper interpretation of the Secretary of State’s policy guidance (paragraph 1 of his determination). He therefore was in the position where he had either to re-make the decision for himself, or to remit the matter back to the First-tier Tribunal: see section 12(2)(b) of the 2007 Act. What he was not required to do was to look at the matter solely through the lens of the argument before IJ Widdup, as though he needed to find a second error of law, this time with respect to Article 8, before he could be permitted to consider that issue for himself.”

“30. However, SIJ Waumsley considered that he could not consider article 8 unless IJ Widdup had erred in law in failing to consider it. He therefore put it out of his hands to consider whether he ought to look at the matter in terms of article 8. In my judgment, however, SIJ Waumsley had a discretion to consider the article 8 point, even if, as he was entitled to think, the point had not been properly raised in the First-tier Tribunal, nor by any respondent’s notice. It is plain, however, that SIJ Waumsley refused to consider his discretion. Whether or not any of the thoughts which led to the way he expressed the matter in his permission to appeal decision entered sub silentio into his thinking does not matter; but it is of course a matter of concern that they may have done so. In any event, he never reached a consideration of his discretion.”

21. The substantive part of the hearing before the Upper Tribunal concerned the re-making of the decision on the appellant’s appeal in light of the submission that both Article 4 of the European Convention on Human Rights (“the Convention”) and the Council of Europe’s Convention against Trafficking in Human Beings (“the Anti-Trafficking Convention”) were engaged in the circumstances which had befallen her. The foundation stone for the argument was the finding made by the First-tier Tribunal Judge at paragraph 24(i) of her determination, recorded as follows:

“ the Appellant is a citizen of Tanzania who was trafficked into domestic servitude to the UK by Mrs Zainab Alibhai so that she could work for her parents, Mr and Mrs Dhanji. She was then later trafficked internally by Mrs Miriam Kilumanga ;”

These findings were amply justified by the evidence before the First-tier Tribunal and are not the subject of any challenge by the respondent.

22. The appellant first came to the United Kingdom in July of 2006. The European Convention on Human Rights was incorporated into domestic law by the Human Rights Act of 1998, whereas the Anti-Trafficking Convention was not ratified by the United Kingdom government until December 2008. In these circumstances Ms Cronin set out a history of the United Kingdom government’s awareness of the issue of abuse of foreign domestic workers brought to this country, and of the measures taken to combat it. She drew our attention to the House of Lords debate on 28 November 1990, when the government explained its new policy initiative in the following terms:

“In all cases the domestic worker will be required to obtain entry clearance before setting out and the entry clearance officer will interview the domestic worker to satisfy himself about the arrangement. The entry clearance officer will also ensure that the domestic worker receives and understands an information leaflet explaining his or her rights. This leaflet will be available in a number of languages and its contents will also be explained orally to those domestic workers who cannot read. A copy of the leaflet will also go to the employer, together with a covering letter explaining its purpose and emphasising the serious view that the Government take of the need to abide by the laws of this country. The leaflet should be printed in a way which emphasises that domestic workers should keep their passports themselves in a safe place and that they may be entitled to at least one week’s notice of dismissal. Secondly, the leaflet should explain how to obtain treatment from the National Health Service.”

23. By 1994 further safeguards were introduced. With the intention of ensuring that there was no misunderstanding by the employers about their obligations to their employees, the government of the day required that domestic workers were to be given a copy of a statement of the main terms and conditions of their employment at the entry clearance interview and were to be asked to confirm that they agreed to those terms and conditions. By 2002 a right was available to domestic workers to change their employer whilst in the United Kingdom during the currency of their visa. This right was again introduced in recognition of the evidenced vulnerability of foreign domestic workers to abuse and exploitation.

24. By the date of the appellant’s application for leave to enter the United Kingdom the relevant Immigration Directorate Instructions (“IDI”) (Chapter 5 Section 12 Domestic Workers in Private Households) included the following:

“3.2 Information Leaflet

Applications for entry clearance from domestic workers are subject to a set procedure. They will be interviewed on their own, at least on their first application, to establish that they understand the terms and conditions of the employment and that they are willing to go to the United Kingdom. If their application is successful, they will be given an information leaflet explaining their rights under the United Kingdom’s criminal and employment laws – further information about the leaflets is available below.”

The copy leaflet produced by Ms Cronin for illustrative purposes showed that information was provided concerning, how to contact the United Kingdom immigration authorities, the employment rights which domestic workers would have in the UK and how to contact Trade Union organisations, the entitlement to the protection of the criminal law, the entitlement to free medical care, and information on the services provided by Kalayaan, an organisation providing independent advice and support on immigration and employment problems, along with contact details. Furthermore, the instructions to the Entry Clearance Officer included at paragraph 2.6 the following:

“2.6 Maintenance and accommodation

The entry clearance officer will require the employer to sign a written undertaking that the employee will be able to maintain and accommodate themselves without recourse to public funds and that the domestic worker will be provided with a separate bedroom if living in.”

25. The appellant’s history and circumstances were summarised by the First-tier Tribunal Judge in her determination and were again referred to in the Upper Tribunal error of law determination. In addition to the other new material provided to the Upper Tribunal in advance of that hearing there was an updated statement from the appellant dated 22 February 2012. A further short statement was available to us dated 4 March 2013.

26. To put the submissions made on the appellant’s behalf in context it may be helpful to summarise the salient features of her history. The appellant came from an impoverished background in Tanzania and had little by way of education. As a young woman in her early twenties she came to work as a domestic assistant for a woman by the name of Zainab Alibhai in Dar-es –Salaam. In July 2006, after working for around two years for this lady, the appellant accompanied her to the United Kingdom, having acquired a domestic worker visa permitting her to stay until 5 November 2006. The appellant was tricked into accompanying Mrs Alibhai on a false pretence and was left in the United Kingdom with Mrs Alibhai’s parents, Mr and Mrs Dhanji. She was required to work for them attending to all domestic duties and cooking all meals. She worked from 7am until around 10.30 at night. She was fed only stale food, scraps or leftovers and was required to sleep on a thin mattress on the kitchen floor, although there was an unused spare bedroom in the house. The mattress had to be rolled up each night and kept outside in a garage. The appellant received no wages from the Dhanji family and was only allowed out of their house to attend church on Sundays. The appellant’s passport was kept by the Dhanji family. Although she asked to be allowed to return to Tanzania on a number of occasions she was told that she could not do so until at least July 2007. The appellant was on occasions unwell whilst living in the Dhanji household but was required to work nevertheless. She was told that there was no one she could complain to about her conditions and that if she went to the police to complain they would not help her.

27. In the summer of 2007, with the assistance of a lady she had met at church, the appellant ran away from the Dhanjis leaving all of her possessions behind. She was given accommodation at the house of a Mrs Miriam Kilumanga. After some time, and with the assistance of the Tanzanian Embassy, she recovered her passport from the Dhanjis. She then realised that her original visa had only been for a duration of 6 months and had now expired. Conditions at the Kilumanga household were little better than before. The appellant was manipulated by Mrs Kilumanga and required to work as a domestic worker for her. Again she was often required to sleep on a mattress on the floor. By early 2008 the appellant was aware that the poor health she had suffered from at the Dhanji household was worsening. She asked Mrs Kilumanga for help and was told that it was difficult for her to get medical attention without paying for it, as she did not have a visa. The appellant had no money. By the latter half of 2008 the appellant was aware of having real difficulties in breathing and sleeping on her left side. Her breathing was noticeably noisy. In September of 2008 she was taken by Mrs Kilumanga to see a solicitor in connection with her claim against the Dhanjis. Mrs Kilumanga interpreted for the appellant as she could speak very little English. The appellant understood the solicitor to have observed that she needed to go to a hospital or see a doctor. On her return home Mrs Kilumanga again insisted that it was very difficult for the appellant to obtain medical assistance as she did not have the correct paperwork. By early October 2008 the appellant was so ill that she was eventually taken to hospital as an emergency by Mrs Kilumanga and was admitted for a two week period. On her return to the Kilumanga household she was again put to work, despite her physically weak condition. She continued to attend for hospital appointments until July 2009. In March 2010, with the assistance of the organisation known as Kalayaan, the appellant was able to leave the Kilumanga household and was given accommodation by the Poppy Project. By this time her health was very poor and this aspect of the appellant’s circumstances will be returned to below.

28. Given the appellant’s experiences in the United Kingdom, and to lay a foundation for the argument which came to be presented, evidence was put before us concerning the circumstances in which the appellant came to be granted a visa in 2006. The appellant’s account was that all of the arrangements were instigated by Mrs Alibhai and that she simply did as she was instructed. She explained that when she attended for interview at the High Commission in Dar-es-Salaam she was accompanied by Mrs Alibhai. She was interviewed in English by a gentleman who sat behind a glass screen. An interpreter translated. The interview was not in private and Mrs Alibhai was sitting behind her in the waiting area. The appellant was not told anything about a contract of employment, how she should be treated, or how much she should be paid in the United Kingdom. She was not told what to do if she needed any help or advice and was not given any form of written information. The appellant had never left Tanzania previously.

The Appellant’s Submissions

Article 4 of the Convention

29. The submissions presented on the appellant’s behalf can be summarised at this stage and expanded upon later. Ms Cronin submitted that the appellant’s rights in terms of Article 4 of the Convention had been breached on account both of her being trafficked into the United Kingdom and then subsequently trafficked within the country. What Article 4 covered in its prohibition against “forced or compulsory labour” could be seen from the terms of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (“the Palermo Protocol”) and the case of Rantsev v Cyprus and Russia (2010) 51 EHHR 1. Article 4 required states to take operational measures to protect both victims and potential victims of trafficking. The United Kingdom government had recognised the need to do so and had put in place the plainly proportionate arrangements concerning interview of a domestic worker by an Entry Clearance Officer and the provision of relevant information in writing, in a language which could be understood. The respondent was in breach of her own policy, and was in breach of the protective duty owed under Article 4 of the Convention to potential victims of trafficking, by failing to provide the appellant with information which would have minimised the risk of her being subjected to exploitative labour and being re-trafficked in the United Kingdom. The submission was that this breach led to the appellant being denied assistance, benefits and rights and to her being exposed to harm and danger. In these circumstances it was argued that the rights conferred by Article 4 having been engaged and having been violated, an obligation on the part of the State to provide reparation had become crystallised. That obligation encompassed the right to recovery.

The Anti-Trafficking Convention

30. Separately, it was submitted that in ratifying and implementing the Anti- Trafficking Convention, the United Kingdom assumed protective and remedial obligations to trafficking victims which extended to the provision of medical treatment and assistance with the victim’s recovery. Articles 12, 14 and 16 were relied upon and it was contended that it would not be consistent with the obligations undertaken in this convention to return the appellant to Tanzania in her present precarious state of health.

31. The respondent’s submissions can also be summarised at this stage. Ms O’Bryan pointed out that the Anti-Trafficking Convention was not ratified by the United Kingdom government until December 2008 and submitted that the IDI which were in place in 2006 were not designed with the obligations undertaken in terms of this convention in mind. She submitted that neither the IDI nor the leaflet were designed to prevent trafficking, they were designed to prevent abuse of legal employees. She went on to explain that following on from signing the Anti-Trafficking Convention a range of other measures had been introduced with the intention of combating trafficking. These included the setting up of the National Referral Mechanism as the framework for identifying victims of human trafficking and ensuring that they received the appropriate protection and support.

32. Ms O’Bryan’s submission was that there had been no breach of Article 4 of the Convention. Even if any breach of the procedures which were in place could be established, there was no link between such a breach and the harm caused to the appellant, although she accepted that the appellant had suffered greatly at the hands of her first employer. Ms O’Bryan submitted that the sort of information contained within the leaflet would have been of no value to the appellant anyway. She went on to draw attention to the fact that Kalayaan had been involved with the appellant since around March 2009, when they arranged for the appellant to attend English classes. Despite this they did not place her with the National Referral Mechanism for victims of trafficking until May 2010, around the same time as she made a claim for asylum. Had they taken this step earlier, for example when they arranged the English classes, it was said that responses appropriate to the appellant’s needs would have been put in place. These would have included accommodation support and medical advice and treatment. In so far as the appellant’s health and personal circumstances were concerned, and whether these had any impact on the question of refusal to grant a resident’s permit, Ms O’Bryan contended that all such matters had been fully ventilated before the First-tier Tribunal Judge. In her submission the same applied to the question of return with dignity as envisaged by Article 16 of the Anti-Trafficking Convention.

Article 4 of the Convention

33. Article 4 of the Convention provides, in so far as relevant, that:

“1. No one shall be held in slavery or servitude.

2. No one shall be required to perform forced or compulsory labour”

In the case of Rantsev v Cyprus and Russia [2010] ECHR 22 , the European Court of Human Rights considered the relationship between trafficking in human beings and Article 4 of the Convention. It took as the meaning of trafficking the definition given in Article 3(a) of the Palermo Protocol, which definition was in turn adopted by the Anti-Trafficking Convention:

“the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”

The Court noted that trafficking by its very nature and aim of exploitation, is based on the exercise of powers attaching to the right of ownership. It described trafficking as conduct which treated human beings as commodities to be bought and sold and put to forced labour, often for little or no payment. It concluded that trafficking itself, within the meaning of the Palermo Protocol, fell within the scope of Article 4 of the Convention.

34. The facts in the case of Rantsev concerned a young Russian woman by the name of Rantseva, who voluntarily travelled to Cyprus in 2001 to take up employment in a cabaret in terms of a contract of employment which she had concluded. She was permitted to enter Cyprus as the beneficiary of a Cypriot visa scheme to facilitate the employment of “artistes”. Only a few weeks after her arrival Ms Rantseva died in circumstances which were never properly explained. Concern had been widespread in Cyprus for many years prior to Ms Rantseva’s entry regarding the extent to which young women had legally entered Cyprus to work as “artistes”, but had in fact worked as prostitutes. In a report later prepared by the Cypriot Ombudsman the visa scheme came to be blamed for the entry of thousands of young foreign women into Cyprus where they were exploited by their employers under cruel living and working conditions.

35. The Court pointed out that Article 4 of the Convention imposed a positive obligation on Member States to put in place an appropriate legislative and administrative framework to ensure the practical and effective protection of the rights of victims or potential victims of trafficking. It explained that a Member State’s immigration rules must address relevant concerns relating to encouragement, facilitation or tolerance of trafficking. Although it acknowledged that adequate Cypriot legislation was in place prohibiting trafficking and sexual exploitation, the court concluded that weaknesses in the Cypriot general legal and administrative framework and in the adequacy of the immigration policy applied, had the result that the regime of artistes’ visas in Cyprus did not afford practical and effective protection against trafficking and exploitation. In these circumstances it held that a violation of Article 4 of the Convention had occurred.

United Kingdom Immigration Policy

36. Having noted the European Court of Human Rights decision that trafficking itself falls within the scope of Article 4 of the Convention and looked at the facts in Rantsev , we turn to the respondent’s submission that the IDI in place in 2006 were not designed to provide protection to someone in the appellant’s circumstances. We recognise of course that the immigration policy in place in 2006 was not intended to reflect the subsequent duties undertaken through ratification of the Anti-Trafficking Convention. However, the State’s obligation to ensure practical and effective protection of the rights of potential victims of trafficking was not created by this convention, and nor did it come into being in 2010 with the issuing of the judgement in Rantsev . The Court explained what Article 4 of the Convention had always required. It is also clear that the United Kingdom government had been aware, since at least 1990, of the need to provide appropriate protection, through its immigration policy and rules, to domestic workers who were at risk of being brought into this country and then being subjected to exploitation in the form of forced labour. That conclusion is clear from the terms of the parliamentary debate held on 28 November 1990 to which we were referred. The debate is peppered with references to attempts to avoid “exploitation” of foreign domestic workers. Examples of what was meant by that term can be seen in the references to; being compelled to work excessive hours; sexual abuse; being virtually treated as slaves and being kept prisoner. The contribution made by various agencies was acknowledged, with Kalayaan and the Anti-Slavery Society being singled out for specific mention. What Parliament was seeking to provide in the course of this debate was the very protection afforded by Article 4 of the Convention, whether viewed through this lens or not.

37. It was in this debate that the benefits of the leaflet to be issued to domestic workers were canvassed. It was noted that the leaflet would set out the legal rights of domestic workers and the other rights available to them. Particular attention was drawn by the Government Minister to the fact that the leaflet would explain how to obtain treatment from the National Health Service.

38. It is true that there are three components to trafficking for the purposes of this discussion:

Could there possibly though be a distinction to be made for the purposes of Article 4 of the Convention, between a domestic worker who was trafficked for exploitation by way of forced labour and one who arrived voluntarily and was then subjected to forced labour? Plainly the answer is there could not be. The protection afforded in terms of Article 4 of the Convention is against being required to perform forced labour. It is a right which all domestic workers possess, regardless of whether the other components of trafficking apply or not. The fact that the appellant had been trafficked in terms of the Palermo Protocol definition cannot mean that she was somehow to be denied the genuine protection which the IDI sought to provide in 2006. It was the right in terms of Article 4 of the Convention which the victims of trafficking possessed which the Court in Rantsev was addressing. It was this same concern to prevent exploitation by way of forced labour which Parliament addressed in 1990. That concern was then addressed by the respondent’s policy and the IDI.

39. We accordingly conclude that the IDI in force at the time of the appellant’s interview in Tanzania were issued as part of the efforts made by the United Kingdom government to combat the exploitation, including exploitation by forced labour, of foreign domestic workers brought into the United Kingdom. These efforts were put in place in light of the concern which had been raised both publicly and in Parliament about the extent to which abuse of this nature was prevalent. To this extent these arrangements were of the sort which the Court in Rantsev explained each State must have in place in order to comply with Article 4 of the Convention.

40. In her statement as put before us, the appellant explained how the interview which she had with the Entry Clearance Officer was conducted. On her account no information was given to her concerning her rights in the United Kingdom and no leaflet was given to her. In the report from Kalayaan presented to us reference was made to the research which they had conducted concerning the implementation of the protective provisions provided for in the IDI. They noted that, as reported to them by domestic workers interviewed in the United Kingdom, the majority had not been interviewed at the entry clearance stage and had not received the leaflet. Their findings were given in evidence to the “Home Affairs Select Committee Inquiry into The Trade in Human Beings: Human Trafficking in the UK”, which reported in 2009.

41. On the basis of the information placed before us, we accept that the appellant was given no information at her entry clearance interview concerning her rights in the United Kingdom and was not given a copy of the leaflet referred to in the relevant IDI. We also note that we have been provided with a copy of the undertaking apparently accepted from Mrs Alibhai by the Entry Clearance Officer in purported compliance with the requirement of paragraph 2.6 of the IDI. It does not conform to the requirements of that paragraph, as the Entry Clearance Officer has not, as directed to do, caused the employer to sign an undertaking which includes an acknowledgement that the domestic worker will be provided with a separate bedroom. As submitted to us by Ms Cronin, we see this as further evidence of the inadequate attention which was given to the implementation of the respondent’s protective measures by the Entry Clearance Officer.

42. In the circumstances which we have set out it is clear that the appellant was the victim of trafficking, as defined by the Palermo Protocol. The respondent accepts this. For the reasons explained above, we agree with Ms Cronin, that in the appellant’s case, the failure to comply with the protective arrangements set out in the IDI constituted a breach of the respondent’s policy designed to provide protection to individuals in her circumstances. We have not been adjudicating upon the extent to which the visa arrangements concerning foreign domestic workers, as were in place in 2006, would have provided practical and effective protection against the known risk of trafficking and exploitation. In Rantsev the finding of a violation of Article 4 of the Convention arose out of the inadequacy of the immigration policy which was in place. In the appellant’s case the same finding arises out of the failure to comply with the arrangements which were put in place to provide the protection which Article 4 of the Convention guarantees.

The Consequences of the Respondent’s Breach of Policy and Article 4

43. The submission made on the respondent’s behalf was that any breach of policy or obligation was of no moment, as the information contained in the leaflet discussed would have been of no value to the appellant. We reject this submission. In the first place it flies in the face of the very purpose for which the leaflet was designed, as explained in the Parliamentary debate to which we were referred. An examination of the leaflet also assists. At the very beginning of the leaflet (or booklet as it describes itself) contact details for Kalayaan are given. It explains that the organisation provides free, confidential, independent advice and support on immigration and employment problems. The leaflet then proceeds with information provided under various headings. The following headings are of particular relevance:

Under this heading it is pointed out that everyone has the full protection of the law, whatever their nationality or conditions of stay. It points out that it is against the law to keep a domestic worker locked in the house against their will.

Under this heading it is emphasised that the domestic worker’s passport is an important document which their employer is not permitted to keep against their will.

Under this heading the domestic worker is informed that he or she has the right to be paid the agreed rate, which must be at least the national Minimum Wage, and cannot be forced to work excessive hours.

Under this heading the domestic worker is informed that he or she is entitled to free medical care and the need to register with a doctor to obtain it is explained. It gives information on how to contact a doctor and explains what to do in an emergency.

44. The appellant was not permitted to leave the Dhanji’s house for long periods, her passport was kept from her, she received no payment and was required to work excessive hours. She was required to work excessive hours at the Kilumanga household. She received no payment and was dependent on Mrs Kilumanga for all of her food and clothing. She was told by Mrs Kilumanga that she could not receive medical treatment without payment. Each of the four parts of the leaflet mentioned would have provided important information to the appellant which she could have used to address her circumstances. In our view, Ms Cronin was correct to submit that in these circumstances a sufficient link has been established between the respondent’s failure to abide by the protective obligations required of her by Article 4 of the Convention and the harm which the appellant came to suffer in the United Kingdom. We reject the contention that this link, flowing from breach of a duty imposed on the State, was somehow broken by the fact that Kalayaan did not direct the appellant towards suitable medical care. The question is what consequence does the breach of Article 4 of the Convention, with these results, have in the current process?

45. The First-tier Tribunal Judge rejected the suggestion that the appellant would be at risk of being re-trafficked in Tanzania. We are not persuaded that this finding is open to review by us and in any event we see no reason to think that any risk of this sort which the appellant might be subject to would be such as to re-engage the United Kingdom’s obligations in terms of Article 4 of the Convention. We therefore find it difficult to agree with Ms Cronin that the removal of the appellant would constitute a further breach of the protective obligations inherent in Article 4 of the Convention. However, it was argued that the principle of reparation was engaged in light of the violation of the appellant’s rights which had already occurred and that this impacted on the question of whether the appellant should be removed.

The Duty to Provide Reparation

46. Ms Cronin’s submission was that the State has an obligation to make reparation for the consequence of its breaches of international law, including human rights violations for which it is responsible. She cited Oppenheim’s International Law, 9 ^th Edition at page 528. She also drew attention to the general principles identified in the Study concerning the rights to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms by the Special Rapporteur to the United Nations Commission on Human Rights, published in 1993. The 4 ^th principle identified was:

“4. Reparation should respond to the needs and wishes of the victims. It shall be proportionate to the gravity of the violations and the resulting harm and shall include: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.”

We would not consider these propositions to be controversial, nor were they challenged by the respondent. In developing this argument Ms Cronin went on to refer to the report by the United Nations Special Rapporteur on trafficking in persons, especially women and children, submitted to the seventeenth session of the United Nations Human Rights Council in June 2011. That report included draft recommendations on the basic principles on the right to an effective remedy for victims of trafficking. Paragraph 24 was in the following terms:

“24. Recovery is a crucial form of reparation for trafficked persons, which includes medical and psychological care, as well as legal and social services. By definition, trafficking often involves physical and sexual violence, physical and emotional coercion, threats and intimidation, which has severe physical and psychological consequences on the victims. The Recommended Principles and Guidelines on Human Rights and Human Trafficking are thus explicit in acknowledging that the right to fair and adequate remedies includes the means for as full a rehabilitation as possible.”

The 2011 report was followed up in August of the same year by the Special Rapporteur’s report to the sixty-sixth session of the General Assembly of the United Nations, in which she again drew attention to the fact that whilst discussions on the right to an effective remedy for victims of trafficking tended to focus on compensation, this was just one aspect of the right, which also encompassed recovery. In paragraph 17 of her report she stated the following:

“ 17. Recovery includes medical and psychological care, as well as legal and social services. As trafficking often causes severe physical and psychological consequences for the victims, recovery is a crucial form of remedy.”

The Appellant’s Health

47. In order to understand the import of these propositions for the case brought by the appellant it is necessary to revisit the evidence concerning her health. Some evidence concerning the appellant’s state of health was led before the First-tier Tribunal Judge. She set out her findings on this topic at paragraph 37 of her determination. These included the finding that although the appellant suffered from tuberculosis and some of the after-effects of this condition, the disease had been “successfully treated”. She also held that there was no evidence to show that the appellant would not have access in Tanzania to the medicinal and on-going treatment she receives in the United Kingdom. It was argued that the Judge had misunderstood the medical evidence before her but in any event had not considered it in the context of the obligation of reparation arising out of a breach of Article 4 of the Convention.

48. Substantial additional evidence was tendered on the appellant’s behalf in advance of the error of law hearing held in February 2012. That evidence included the following medical reports:

The additional evidence was tendered in terms of Rule 15(2)(a) of the Upper Tribunal Rules of Procedure, an adjournment for the purpose of obtaining additional evidence having been granted on 27 July 2011. No objection was taken to the appellant relying on any of the additional evidence adduced and Ms Cronin relied heavily on the additional medical evidence.

49. The evidence now available gives a much fuller picture of the appellant’s health than was before the First-tier Tribunal Judge. Dr Davidson was responsible for the appellant’s care from the time of her first admission in October 2008, when she presented as very unwell and thin. X-ray examination demonstrated the presence of extensive tuberculosis throughout her left lung, with changes which must have been present for several months and which were described as very severe. She required inpatient treatment for a period of two weeks and thereafter attended for regular outpatient treatment throughout the rest of 2008 and until the middle of 2009, by which stage her condition was confirmed as irreversible. In March 2010 the appellant again required hospital admission, when the left upper lobe of her lung was found to be extremely abnormal and completely collapsed. A bronchoscopy identified that the left upper lobe and lingula airways had completely disappeared. There was no possibility of re-expansion of the destroyed upper lobe. Subsequent outpatient re-assessment led to the conclusion that she has a persistent and permanent left upper lobe lung collapse, due to obliteration of her airways. This has led to a troublesome cough, intractable pain and breathlessness. Dr Davidson reported that the appellant’s case was unusually severe in its progression, having caused more permanent lung damage than he would see in 95% of his cases. In such severe cases he observed that he would usually see some other aggravating factor, such as the patient sleeping rough. He expressed the view that had treatment been started, perhaps as little as three months earlier, it would have been likely that a considerable function of the left lung would have been saved.

50. Dr Davidson also provided evidence as to the prognosis for the appellant. He explained that she will be susceptible to repeated chest infections in the years ahead. He noted that in the event of such infections being contracted they would need to be carefully controlled and monitored so as to reduce any risk of associated complications. The medical attention necessary would need to be highly specialised because of the complexity of the appellant’s case. She will be restricted in the physical tasks she can perform because of the breathlessness which results from exertion. His view was that it was very unlikely that the appellant will live a normal and productive life given her respiratory symptoms and her chest pains. He estimated that she will need two to five courses of antibiotics each year to prevent severe infection and is likely to have one hospital admission each year for life threatening infection. In Dr Davidson’s opinion, there is a 50% probability of the appellant requiring to have either the left upper lobe removed or the entire left lung removed within the next five years. Even in the absence of thoracic surgery, the appellant will require very frequent attendances at a thoracic centre for assessment in order to monitor whether she has developed pulmonary hypertension due to chronic lung disease and to treat intercurrent infections. He explained that pulmonary hypertension leads to a form of heart failure which results from chronic lung disease, but can be avoided if the lung disease is carefully monitored and treated on a specialist basis.

51. In her report Dr Agnew-Davies explained that she conducted a number of lengthy interviews with the appellant, during which she applied a range of standardised psychological tests. Her conclusion was that the appellant is suffering from a severe, complex and chronic form of post-traumatic distress disorder, which is further complicated by a severe, chronic, major depressive disorder with an unspecified time of onset. Dr Agnew-Davies concluded that the conditions which the appellant suffers from render her at enduring risk of exploitation, that she should be regarded as a vulnerable adult and that she will remain so indefinitely, such that at present in the United Kingdom she is entitled to support according to the safe-guarding procedures of the local authority. Dr Agnew-Davies expressed the opinion that in light of the appellant’s mental health problems and consequent psychosocial vulnerability, she will need an enduring period of safety without risk of disruption in order to maximise her rehabilitative potential. Her opinion was that the appellant would require long term treatment including, at some point in the future, a referral to a specialist trauma focused service such as is provided by various specialist centres in the United Kingdom.

52. Dr Davidson is head of the largest tuberculosis service in the United Kingdom. In addition he has substantial experience of working in various different African countries, to the extent that he considered himself to be very aware of the extent to which medical facilities are available in East Africa. He explained that thoracotomy and lobectomy are hazardous, major operations even in the United Kingdom. He did not expect these operations to be available to be safely carried out in most parts of Tanzania. Were surgery to be required, it would have to be done urgently if not as an emergency. He observed that operations done in these circumstances carry higher risk. He noted that if urgent surgery was required, it would be necessary very speedily to refer the appellant to a centre where such surgery could be safely carried out. In light of these features Dr Davison concluded that it was unlikely that the appellant will have a normal life expectancy if she is not looked after in a city where thoracic medical and surgery expertise is at hand. Without expert thoracic and infectious diseases care she would have a 50% chance of dying before the age of 50. With expert care, including thoracic surgery such as would be available in the United Kingdom, he estimated a 90% chance that the appellant would live into her seventies.

53. In the report from Ms Shelly Lees, she explained that in addition to publishing on Tanzanian culture and gender issues, she is a trained nurse and has worked as a nurse tutor in Tanzania. She is familiar with the services provided by hospitals in Tanzania. She reported that mental health services in Tanzania are of extremely poor quality, that there is a severe shortage of health workers with mental health experience and no expertise is available in trauma care in the public health service. Mental health problems are highly stigmatised in Tanzania. In relation to the treatment of tuberculosis, Ms Lees acknowledged that there is good treatment available in relation to basic levels of the disease but expressed the view that there is a complete lack of the more specialised treatment which the appellant now requires. She drew attention to recent information concerning the poor availability of essential drugs at government hospitals and reported that there is only one cardiothoracic centre in Tanzania and that it only has the expertise to conduct uncomplicated thoracic surgery. The centre does not have the expertise to conduct a complicated anaesthetic procedure. For these reasons she expressed the opinion that the appellant would not be able to have the thoracic surgery contemplated by Dr Davidson in Tanzania.

54. An up to date report, dated 6 March 2013, noted that the appellant had required hospital admissions to treat respiratory infection in both January and February 2013, on the later occasion being admitted to the critical care unit.

55. In the light of the fuller information available to us concerning the appellant’s health it seems clear that the findings made by the First-tier Tribunal Judge, to which we referred in paragraph 47, are incorrect.

56. Ms Cronin’s submission on behalf of the appellant was that her medical conditions were attributable to her mistreatment by her traffickers. The severity of her condition being similar to that found in persons who had been sleeping rough struck a chord with the manner in which she had lived in the Dhanji household. There was no challenge to these submissions on the part of the respondent, and it seems clear, that at the very least, the appellant’s lung condition grew much worse during the time she lived with her traffickers.

57. In our view, one of the most significant aspects of the appellant’s medical history was her late presentation. The appellant had been complaining of being unwell since she was living in the Dhanji household. It was only in October 2008, when she was plainly severely ill, that she was taken to an accident and emergency department by Mrs Kilumanga. It is obvious, both from the appellant’s own statements and from Dr Davidson’s report on her condition, that she must have been very unwell and weak for a considerable period of time. The appellant claims that she asked Mrs Kilumanga on many occasions about medical assistance but was always told that she could not get help without paying for it.

58. Given the obvious and serious condition which was developing, we accept without hesitation that the appellant did wish medical assistance. In his report Dr Davidson commented that the appellant was a model patient who was adherent and co-operative at every stage. She gave no indication of a tendency to self-neglect, such as he would expect in the case of a person who presented at such a late stage of their illness. In our view, the only comprehensible explanation for the appellant never obtaining any form of medical help is the one which she gives herself. This brings into very sharp focus the effect of the failure on the part of the Entry Clearance Officer to inform the appellant that she had the right to free medical treatment in the United Kingdom. The tragedy, as Dr Davidson expressed it, is that had she been able to seek treatment a few months earlier her lung function could probably have been saved and the very worrying future consequences avoided.

59. In these circumstances the submission made was that there was an obligation to facilitate recovery encompassed within the duty of reparation, and that this should lead to the appellant being able to remain in the United Kingdom. If she did so she could access medical facilities suitable for her needs which, if not capable of remedying her health, would at least permit it to remain stable. Given the extent to which the appellant’s health has deteriorated and the danger to her life which is present, there is a clear underlying sense of justice in the propositions advanced by Ms Cronin. In addition, the concept of rehabilitation, or recovery, as part of an effective remedy for victims of trafficking is supported by the various references to the reports of the United Nations Special Rapporteurs to which our attention was drawn. These reports provide helpful guidance on the ways in which States should be expected to respond to human rights violations. The reference in the report to the sixty-sixth session of the General Assembly to the severe physical and psychological harm caused to victims, resulting in recovery being seen as a crucial form of remedy, seems particularly apposite in the appellant’s case. The more difficult question is what remedy is the Upper Tribunal, as a body governed by statute, empowered to provide? This question can be returned to having considered the remaining branch of the appellant’s submissions.

The Anti-Trafficking Convention

60. The respondent’s submission was that the Anti-Trafficking Convention had no part to play in the appellant’s case, since it was not ratified by the United Kingdom until 2008, at a point after the appellant’s entry into the United Kingdom. In our view this submission fails to engage with the terms and purpose of the Anti-Trafficking Convention. In ratifying this convention the United Kingdom government bound itself not only to take steps to prevent trafficking but also to take various steps to provide assistance to victims of trafficking within this country. It is also important to recognise two further points. Firstly, after the appellant was referred to the National Referral Mechanism for Potential Victims of Trafficking, a decision was made on 25 November 2010 that there were conclusive grounds to believe that she was a victim of trafficking. Secondly, in terms of the unchallenged determination of the First-tier Tribunal Judge, the appellant was also trafficked internally by Mrs Kilumanga (paragraph 24(i)). The respondent’s duty to provide assistance under the Anti-Trafficking Convention was engaged no later than the point at which a decision was made that there were conclusive grounds to believe that the appellant was a victim of trafficking.

61. The purposes of the Anti-Trafficking Convention include, to protect the human rights of the victims of trafficking and to design a framework for the protection and assistance of victims (Article 1 Paragraph 1b). It applies to all forms of trafficking, whether national or transnational (Article 2). It requires all Parties to adopt such measures as may be necessary to assist victims in their physical, psychological and social recovery (Article 12 Paragraph 1). It requires all Parties to issue a renewable residence permit to victims if their stay is necessary owing to their personal situation (Article 14). It provides that when a Party returns a victim to another State, such return shall be with due regard for the rights, safety and dignity of that person (Article 16 Paragraph 2).

62. As a victim of trafficking the appellant is owed certain duties by the respondent under the Anti-Trafficking Convention. She has been provided with medical care to assist with her recovery but it is clear that she will continue to require on-going care, in relation to both her physical health and her mental health. Article 14 of the Anti-Trafficking Convention obliges the respondent to provide the appellant with a residence permit if she considers that the appellant’s stay is necessary owing to her personal situation. Ms Cronin submitted that a victim’s personal situation must include consideration of his or her medical needs. This submission is consistent with what is said at paragraph 184 of the Explanatory Report to the Anti-Trafficking Convention, where it is stated that:

“184. The personal situation requirement takes in a range of situations, depending on whether it is the victim’s safety, state of health , family situation or some other factor which has to be taken into account.”

We accordingly accept Ms Cronin’s submission on this point. It is also helpful to take account of what is said in paragraph 183 of the Explanatory Report concerning what it is about the victim’s personal circumstances that should engage the Party’s obligation to grant a residence permit. It is in these terms:

“183. Thus, for the victim to be granted a residence permit, and depending on the approach the Party adopts, either the victim’s personal circumstances must be such that it would be unreasonable to compel them to leave the national territory, or there has to be an investigation or prosecution with the victim co-operating with the authorities. Parties likewise have the possibility of issuing residence permits in both situations.”

63. We heard submissions in relation to the severity of harm or anticipated harm which would be necessary show a breach of Article 3 of the Convention, and the considerations which need to be taken into account if such a claim is based on a lack of medical facilities in a receiving country, under reference to the cases of Sufi and Elmi v The United Kingdom (2012) E.H.R.R. 209, MSS v Belgium [2011] ECHR 108 and N v The United Kingdom (2008) 47 E.H.R.R. 39. We saw force in Ms Cronin’s submission that the questions in the present case, which arise out of the finding that Article 4 of the Convention has been engaged and the finding that the duties of assistance under the Anti-Trafficking Convention are engaged, do not fall to be determined by the approach taken in the case of N v The United Kingdom . For one thing, the guidance given in paragraph 183 of the Explanatory Report seems to contemplate a quite different standard from the very high one described in N v The United Kingdom . In addition, the appellant’s circumstances and the basis of her claims are quite different from those in the cases mentioned. We are dealing with an admitted victim of trafficking in relation to whom we have held there has been a breach of the obligations imposed on the United Kingdom government by Article 4 of the Convention, which breach we are satisfied has exposed the victim to harm in this country. The appellant’s entitlement to reparation and the respondent’s obligations under the Anti-Trafficking Convention are considerations which had no counterpart in the other cases under discussion.

64. It seems to us that the duty owed under Article 14 of the Anti-Trafficking Convention may overlap with the duty owed under Article 16 of that convention. Ms Cronin submitted that the duty to return with due regard to “dignity” involved the consideration of a right in which other protective rights, such as safety and health, were subsumed. She therefore submitted that consideration of matters such as these would inform what it meant to return a person with due regard for their dignity. Although no authority was available to assist in understanding what dignity meant in these circumstances, it seemed to us that the analysis provided by Ms Cronin was helpful. In our view, it is appropriate to start from the appreciation that the appellant’s medical condition is linked to the breach of her rights under Article 4 of the Convention, in other words that the State should recognise a degree of responsibility for it. From this starting point it is difficult to see that to remove the appellant at this stage, when she suffers from such serious physical and mental health problems, from the care of the medical regime which she presently benefits from, and to return her to a country where facilities for the proper care of her present and likely needs are absent, to the extent that her life expectancy will be greatly reduced, can be seen as a return with due regard for her dignity. The reality of the appellant’s situation is that she is a very ill woman who will require on-going care of a specialised nature and is likely to have to undergo major surgery of a dangerous sort. It is now clear, from the combined evidence of Dr Davidson and Ms Lees, that the sort of specialist care which the appellant will definitely require on an on-going basis, as well as the specialist care which she is likely to need on an emergency basis to combat life threatening infection and the specialist care which she is likely to need in the context of the anticipated major surgery, is unlikely to be available to her in Tanzania. For the same reasons, it is equally difficult to resist the conclusion that, having regard to the appellant’s personal situation, it would be unreasonable to compel her to leave the United Kingdom at this time.

65. The considerations which arise in the appellant’s case out of an examination of Articles 12, 14 and 16 of the Anti-Trafficking Convention can be taken along with the considerations which arise out of her case brought under Article 4 of the Convention. The respondent’s reasons for refusal letter was dated 26 November 2010, one day after it had been decided that she was to be treated as a victim of trafficking. That question of course had been live with the National Referral Mechanism for the previous six months. Although these facts are all referred to in the respondent’s letter of refusal, there is no reference at all to any suggestion of an obligation on the respondent’s part, either under Article 4 of the Convention or under the Anti-Trafficking Convention. The only context in which Article 4 of the Convention was considered was in connection with a risk of re-trafficking in Tanzania. Although it was pointed out that there were non-governmental agencies working in Tanzania to provide assistance to victims of trafficking, no mention was made of the obligations which the United Kingdom had undertaken in terms of Article 12, 14 or 16 of the Anti-Trafficking Convention. Indeed, this convention was not mentioned in any capacity, despite it being stated that the question of whether the appellant should be granted discretionary leave to remain in the United Kingdom had been considered.

66. The respondent’s decisions to refuse to grant the appellant leave and to decline to accept that she was in need of humanitarian protection were made without taking account of the history of events as we have held them to be. In particular, the decisions were taken without taking account of the link between the appellant’s precarious state of health and the breach of the respondent’s own protective obligations in terms of policy and Article 4 of the Convention. They were taken without consideration of the duties which were engaged under Articles 12, 14 and 16 of the Anti-Trafficking Convention. We therefore hold, in terms of section 86(3) of the Nationality, Immigration and Asylum Act 2002, that the decision appealed against was not in accordance with the law.

67. In these circumstances we find the comments by Lord Justice Carnwath in R(S) v Secretary of State for the Home Department [2007] INLR 450, as approved by the court in KA (Afghanistan) v Home Secretary (CA) [2013] 1 WLR 615 at paragraphs 12 and 13 to be of value and application. Whilst it is not open to this Tribunal to declare that the respondent must grant the appellant leave to remain indefinitely or for any particular period, it is open to us to determine that a legally material factor in the exercise of the respondent’s discretion on that matter is the correction of injustice. It seems to us that injustice would be done if the appellant were to be returned without having the benefit of the recovery aspect of the reparation to which she is entitled arising from the breach of Article 4 of the Convention. Separately, it seems to us that to return the appellant to Tanzania in her present state of health would, having regard to her personal situation, be unreasonable, just as to do so would not be in conformity with the obligation to return with due regard for her dignity.

68. We will therefore allow the appeal by re-making the decision of the First-tier Tribunal Judge to the extent that we hold there has been a breach of the appellant’s rights under Article 4 of the Convention and to the extent that we hold her removal would engage the respondent’s duties under Articles 12, 14 and 16 of the Anti-Trafficking Convention. In these circumstances, drawing on the approach taken in the case of AA (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ. 12, we will make a direction under section 87 of the Nationality, Immigration and Asylum Act 2002, directing the Secretary of State to grant a period of leave to the appellant, the length of which should be decided upon in light of the determination by this Tribunal, and of any further representations made by the appellant within a period of 21 days.

69. We would like to conclude by thanking both Ms Cronin and Ms O’Bryan for the considerable assistance and guidance given to us during the course of the hearing in this case.