MS v The Secretary of State for the Home Department

I ntroduction

Error of Law

“[The FtT] misdirected [itself] , firstly in omitting to make a clear finding as to whether or not the Appellant was a victim of trafficking, secondly in concluding that it was sufficient to ascribe to the Appellant a lower position on a spectrum of trafficking and in omitting clearly to evaluate the nature of the Appellant’s employment in the United Kingdom and whether even if freely chosen by him it was nonetheless exploitative. ”

Fundamentally, there was a failure to make any finding on the issues of whether the Appellant was trafficked to the United Kingdom and/or re-trafficked within the United Kingdom . In setting aside the decision of the FtT, Upper Tribunal Judge Goldstein expressly preserved certain findings, namely the FtT’s “ positive credibility findings that related to the Appellant’s circumstances in the United Kingdom …. ”

The Trafficking Decision s

In its decision the A uthority stated, inter alia :

“ In looking at the circumstances of your client’s passage to the United Kingdom it is accepted that he has been subject to an act of recruitment, transportation, transfer, harbouring or receipt as it is not only accepted that his step-grandmother did accompany him to the United Kingdom, it is also acce pted that he may have been deceiv ed as to the true purpose of being brought to the United Kingdom. Your client has clearly stated that he was told by his step-grandmother he was being brought to the United Kingdom to study …..

Given that he was not enrolled in any form of study or education following his arrival it is accepted that he was potentially deceived as to the true purpose of being brought to the United Kingdom . ”

The conclusion made was that there were no reasonable grounds for believing that the Appellant was a victim of trafficking within the compass of the Trafficking Convention ( infra ) .

“ It is noted that you were not under the control of your alleged traffickers when you were encountered by the police in September 2012. It is therefore not considered that you would require further time to recover fr om your alleged trafficking situation. Furthermore, it is considered that as you left the accommodation that was provided to you by [WY] when you worked in the Kebab shop in August 2013, the benefit of a 45 day period of reflection and recovery would be limited in relation to the time you have already had to recover. Therefore it is not accepted that you require a period of time to recover from the influence of your traffickers. ”

The decision maker then highlighted that the Appellant was not suffering from any medical condition and had not made any complaint to the police, continuing:

“ In conclusion, for the reasons given above, even if your account of your alleged experiences was accepted, it is considered that you are still not a victim of trafficking for the purpose of the Convention and at the present time. ”

The Asylum Refusal Decision

“ If returned to Pakistan , you fear that your life is in danger from your step-grandmother and her son because they have taken your father’s property from you, even though this is in your name. You fear your grandmother’s nephews as well because they are criminals involved in dealing drugs and kill people. ”

Continuing, the author suggests that a land dispute described by the Appellant was the reason for him leaving Pakistan and that the fear arising out of such dispute is not based upon a fear of persecution in Pakistan for a Convention reason. The decision maker then highlighted the inconsistent ages ( eight or ten ?) put forward by the Appellant relating to the death of his father and his inconsistent replies relating to siblings (none or two ? ). These two factors were considered to damage his credibility. The decision maker then concluded, highlighting the absence of any documentary proof, that the Appellant’s assertion of a land dispute with his step grandmother could be neither accepted nor rejected. Further, the Appellant’s claim of fearing death at the hands of his step-grandmother and her nephews was rejected as not worthy of belief. In the next section of the decision, the conclusion of the Authority that the Appellant had been neither trafficked to, nor trafficked in, the United Kingdom was adopted.

“[72] It seems to me that whether or not there was any intention to bring him to the UK to exploit him as opposed to assisting him to find work and support himself in the knowledge that he was not legally entitled to do so, he was a child at the time he was brought here and under the control of adults. ”

“[73] I find on his own evidence that he was not subjected to any physical threats or actual violence to make him work and that when he was not happy with his situation he was able to leave without attracting any adverse attention. I do not find that this amounted to ‘forced labour’ but accept in reality he would have had little choice but to work on the black market as he had no permission to work and needed money to survive. He was a child surrounded by adults from his own country and at the very least would have been heavily influenced by them. Clearly he was vulnerable to exploitation. ”

Having referred to the evidence of an expert witness, the FtT continued:

“[74] … In her opinion the Appellant ….. would not have been able to facilitate his own travel and employment. In her expert opinion the intermediaries arranged the jobs and accommodation and thus exploited his vulnerability as a child to use him as cheap and illegal labour. It was her opinion that victims of trafficking are often accommodated at the site of the premises making them dependent on exploiters …. Living and usually [working] behind the scenes away from public view so that they can be controlled and isolated from the general public. I am satisfied that at least initially this was the position for the Appellant. However, his detailed account of events in the UK includes reference to him deciding himself to move closer to his work on one occasion …. and to his own decisions to move from one place to another ….. albeit with the assistance of others working in the industry. He was not sleeping at the work premises. He was not at any time subjected to violence or threats. At the most he may have been manipulated. ”

“[75] … .. I find as a fact that he was assisted by adult males of Pakistani origin working in the same industry to move around the country to different jobs. I find as a fact that he was not in fear of those people but rather felt he had no choice but to work in these establishments in order to survive. His experiences in the UK may well have been an improvement to the life he had been experiencing in Pakistan before he came here. It is perhaps understandable that he would regard these people as friends and not understand exploitative relationships. He may have been manipulated by them or alternatively they may simply have been helping him to survive as an illegal immigrant. ”

“ It was his view that he was paying money to people who arranged for his jobs and accommodation as returning a favour. He accepted long working hours and irregular payments as a fact of life. ”

“[77] … He was to some degree exploited by adults in the catering industry who knew he did not have legal status and permission to work and that he was under 18. Given his apparent freedom to move around and choose to rent somewhere closer to his work and the fact that he was able to chose how to spend his money (notwithstanding he was paid below minimum wage) if he was a victim of trafficking this was very much at the lower end of the spectrum. There was no evidence that he was in any way traumatised by his experiences. ”

[ Our emphasis.]

“[78] …. It was his clear instruction to his representatives that he was not currently a victim of trafficking ….

I also take into account that since his arrest by the police he had been looked after by Social Services and having reached the age of 18 was now receiving assistance from a personal advisor in the transition to independent living …

I find as a fact that he ceased to be in a situation which might have amounted to being a victim of trafficking following his arrest in September 2012. ”

[Emphasis added.]

At this juncture we interpose the FtT’s positive finding relating to the Appellant’s credibility:

“[75] I found his very detailed SEF […….] with regard to his history in the UK to be a truthful account of his activity up to the point when he was arrested by the police. ”

We juxtapose with this finding the absence of any finding in the decision of the FtT that any aspect of the Appellant’s case was to be disbelieved.

Framework of this appeal

Following reflection , w e are content to adopt this formulation of the issues and the appeal shall be determined accordingly .

(10) This has three main components: the uncontentious facts, the preserved findings of the FtT and our further findings on contentious factual issues. We interpose at this juncture the Appellant’s chronology, which embraces both the factual background and the (regrettably) rather protracted history of this appeal:

We recognise that certain aspects of this chronology are contentious. We shall return to this infra .

(i) His paternal grandfather, who died when the Appellant was aged around ten . The grandfather’s first wife was the Appellant’s grandmother. Following her demise, the grandfather married the Appellant’s step-grandmother (“KF”).

(ii) KF, the Appellant’s step-grandmother, is the step-mother of three children of the Appellant’s paternal grandfather. These three persons are the Appellant’s uncles/aunts. One of the aunts has two sons who are described consistently as the step-grand mother ’s nephews.

(iii) The Appellant’s father died when he was approximately eleven or twelve years. Subsequently, KF sponsored the marriage between the Appellant’s mother and SI, a son of KF. For some time thereafter, all of the aforementioned persons lived together in the same household.

We shall revisit these factual issues in our findings, infra .

(i) The Appellant was conveyed to the United Kingdom by his ste p grandmother, having been deceiv ed by her into thinking that this was for the purpose of being educated.

(ii) The Appellant was a child at the material time, having just attained his 16 ^th birthday and he was “ under the control of adults ”.

(iii) Subsequently he was employed and went from job to job, in circumstances wherein -

“… He would have had little choice but to work on the black market as he had no permission to work and needed money to survive. ”

(iv) “ He was a child surrounded by adults from his own country and at the very least would have been heavily influenced by them. Clearly he was vulnerable to exploitation. ”

(v) The Appellant was initially exploited by adults for the purpose of using him as “ cheap and illegal labour ”.

(vi) Subsequently (at some unspecified stage) “ at the most he may have been manipulated ”.

(vii) The Appellant’s “SEF” account of his life in the United Kingdom prior to arrest by the police (in September 2012) was truthful.

(viii) The Appellant was assisted by adult males of Pakistani origin working in the same industry to move around the country from job to job and, in doing so, he “ … felt he had no choice but to work in these establishments in order to survive ”.

(ix) He paid a person for the purpose of using that person’s particulars in the event of the Appellant being encountered by the police.

(x) The Appellant “ … was to some degree exploited by adults in the catering industry …. ”

(xi) Given his movements and changes of job, “ …. if he was a victim of trafficking this was very much at the lower end of the spectrum. ”

(xii) “ I accept that he may have telephoned his step-grandmother’s home shortly after arriving in the UK when he was unhappy with his situation and that he may have been told that a lot of effort had been taken [sic] to get him to the UK and even been threatened by one of his step-grandmother’s nephews. ”

Contentious Factual Issues: Our Findings

“ Assessment of facts and circumstances

1. Member States may consider it the duty of the applicant to submit as soon as possible all elements needed to substantiate the application for international protection. In cooperation with the applicant it is the duty of the Member State to assess the relevant elements of the application.

2. The elements referred to in of paragraph 1 consist of the applicant ' s statements and all documentation at the applicants disposal regarding the applicant ' s age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection.

3. The assessment of an application for international protection is to be carried out on an individual basis and includes taking into account:

(a) all relevant facts as they relate to the country of origin at the time of taking a decision on the application; including laws and regulations of the country of origin and the manner in which they are applied;

(b) the relevant statements and documentation presented by the applicant including information on whether the applicant has been or may be subject to persecution or serious harm;

(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant ' s personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm;

(d) whether the applicant ' s activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country;

(e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.

4. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant ' s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. ”

It was held that the duty on the applicant under Article 4 to substantiate his application for international protection is a limited one. Specifically, it is limited to the situation where aspects of the applicant’s statements are not supported (ie corroborated) by documentary or other evidence. In such circumstances, the effect of Article 4(5) is that the Applicant will not need to provide corroboration where the conditions enshrined therein are cumulatively met: see [81] and [85]. Article 4(5) provides:

“ 5. Where Member States apply the principle according to which it is the duty of the applicant to substantiate the application for international protection and where aspects of the applicant’s statements are not supported by documentary or other evidence, those aspects shall not need confirmation, when the following conditions are met:

(a) the applicant has made a genuine effort to substantiate his application;

(b) all relevant elements, at the applicant’s disposal, have been submitted, and a satisfactory explanation regarding any lack of other relevant elements has been given;

(c) the applicant’s statements are found to be coherent and plausible and do not run counter to available specific and general information relevant to the applicant’s case;

(d) the applicant has applied for international protection at the earliest possible time, unless the applicant can demonstrate good reason for not having done so; and

(e) the general credibility of the applicant has been established.”

We shall adopt this approach in making our findings on contentious issues. We also give effect to the lower standard of proof, well established, in asylum cases.

“ This is a Council of Europe measure, signed by the United Kingdom Government in 2007 and ratified [on 17 December] 20 08. It entered into force on 1 ^st February 2008, having received the necessary 10 ratifications. It has been ratified by the vast majority of the Council of Europe Member States. ”

In the same passage, the main features of the Convention are summarised thus:

“ Where the relevant authority has identified a victim of trafficking, the person concer ned may qualify for a residence permit under Article 14. The Convention is a comprehensive measure, focusing particularly on the protection of victims of trafficking and the safeguarding of their rights. It is also designed to prevent and deter trafficking and to prosecute the perpetrators thereof. It embraces all kinds of exploitation, sexual exploitation, forced labour and kindred abuses, whether national or transnational and irrespective of whether related to organised crime. It establishes an independent monitoring mechanism for the purpose of securing compliance with its provisions by the Parties. ”

In the United Kingdom , the Secretary of State is the competent authority ( infra ).

“ a. "Trafficking in human beings" shall mean 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;

b. The consent of a victim of “trafficking in human beings” to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;

c. The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered "trafficking in human beings" even if this does not involve any of the means set forth in subparagraph (a) of this article;

d. "Child" shall mean any person under eighteen years of age;

e. “Victim” shall mean any natural person who is subject to trafficking in human beings as defined in this article.”

In this context, it is appropriate to consider the Explanatory Report relating to the Convention. This states, at [3]:

“Trafficking in human beings , with the entrapment of its victims, is the modern form of the old worldwide slave trade. It treats human beings as a commodity to be bought and sold, and to be put to forced labour, usually in the sex industry but also, for example, in the agricultural sector, declared or undeclared sweatshops, for a pittance or nothing at all. Most identified victims of trafficking are women but men also are sometimes victims of trafficking in human beings. Furthermore, many of the victims are young, sometimes children. All are desperate to make a meagre living, only to have their lives ruined by exploitation and rapacity.”

The report continues, at [76]

“For there to be trafficking in human beings, ingredients from each of the three categories (action, means, purpose) must be present together. There is, however, an exception regarding children: under Article 4(c) recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation is to be regarded as trafficking in human beings even if it does not involve any of the means listed in Article 4(a). Under Article 4(d) the word “child” means any person under 18 years of age.”

The concept s of abuse and vulnerability are explained thus, at [83]:

“By ‘ abuse of a position of vulnerability ’ is meant abuse of any situation in which the person involved has no real and acceptable alternative to submitting to the abuse. The vulnerability may be of any kind, whether physical, psychological, emotional, family-related, social or economic. The situation might, for example, involve insecurity or illegality of the victim’s administrative status, economic dependence or fragile health. In short, the situation can be any state of hardship in which a human being is impelled to accept being exploited. Persons abusing such a situation flagrantly infringe human rights and violate human dignity and integrity, which no one can validly renounce.”

“ Each Party shall adopt such legislative or other measures as may be necessary to identify victims as appropriate in collaboration with other Parties and relevant support organisations. Each Party shall ensure that, if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence provided for in Article 18 of this Convention has been completed by the competent authorities and shall likewise ensure that that person receives the assistance provided for in Article 12, paragraphs 1 and 2. ”

By Article 13(1) it is provided:

“ 1 Each Party shall provide in its internal law a recovery and reflection period of at least 30 days, when there are reasonable grounds to believe that the person concerned is a victim. Such a period shall be sufficient for the person concerned to recover and escape the influence of traffickers and/or to take an informed decision on cooperating with the competent authorities. During this period it shall not be possible to enforce any expulsion order against him or her. This provision is without prejudice to the activities carried out by the competent authorities in all phases of the relevant national proceedings, and in particular when investigating and prosecuting the offences concerned. During this period, the Parties shall authorise the persons concerned to stay in their territory.”

Article 14 states:

“1. Each Party shall issue a renewable residence permit to victims, in one or other of the two following situations or in both:

a. the competent authority considers that their stay is necessary owing to their personal situation;

b. the competent authority considers that their stay is necessary for the purpose of their co-operation with the competent authorities in investigation or criminal proceedings.

2. The residence permit for child victims, when legally necessary, shall be issued in accordance with the best interests of the child and, where appropriate, renewed under the same conditions.

3. The non-renewal or withdrawal of a residence permit is subject to the conditions provided for by the internal law of the Party.

4. If a victim submits an application for another kind of residence permit, the Party concerned shall take into account that he or she holds, or has held, a residence permit in conformity with paragraph 1.

5. Having regard to the obligations of Parties to which Article 40 of this Convention refers, each Party shall ensure that granting of a permit according to this provision shall be without prejudice to the right to seek and enjoy asylum.”

“1 Each Party shall ensure that victims have access, as from their first contact with the competent authorities, to information on relevant judicial and administrative proceedings in a language which they can understand.

2 Each Party shall provide, in its internal law, for the right to legal assistance and to free legal aid for victims under the conditions provided by its internal law.

3 Each Party shall provide, in its internal law, for the right of victims to compensation from the perpetrators.

4 Each Party shall adopt such legislative or other measures as may be necessary to guarantee compensation for victims in accordance with the conditions under its internal law, for instance through the establishment of a fund for victim compensation or measures or programmes aimed at social assistance and social integration of victims, which could be funded by the assets resulting from the application of measures provided in Article 23.”

We shall revisit these provisions and address Article 18 separately infra .

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

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

Third, there is Council Directive 2011/36/EU on Preventing and Combating Trafficking in Human Beings and Protecting The Victims (the “ Trafficking Directive ”). Finally, there is the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (the “ Palermo Protocol ”). Since 01 November 2015 the domestic law framework has included the Modern Slavery Act 2015. By section 52 of this enactment public authorities are obliged to notify the Secretary of State if they suspect that a person is a victim of slavery or human trafficking. Various offences are created.

“ The Court considers that trafficking in human beings, by its very nature and aim of exploitation, is based on the exercise of powers attaching to the right of ownership. It treats human beings as commodities to be bought and sold and put to forced labour, often for little or no payment, usually in the sex industry but also elsewhere….

It implies close surveillance of the activities of victims, whose movements are often circumscribed …

It involves the use of violence and threats against victims, who live and work under poor conditions. ”

Highlighting the threat which trafficking poses to the human dignity and fundamental freedoms of its victims and its incompatibility with democratic societies and the values expounded in the ECHR, the Court concluded that it is embraced by Article 4 ECHR: [282].

(a) Article 4 is on a pa r with Articles 2 and 3 as enshrining “ one of the basic values of the democratic societies making up the Council of Europe ”. It makes no provision for exceptions or derogation.

(b) The spectrum of safeguards contained in national legislation “ …. must be adequate to ensure the practical and effective protection of the rights of victims or potential victims of trafficking ”. This includes adequate criminal law measures and the need for appropriate provisions within the state’s immigration rules.

(c) Article 4 encompasses “ a specific positive obligation on Member States to penalise and prosecute effectively any act aimed at maintaining a person in a situation of slavery, servitude or forced or compulsory labour ”. This, however, is but one aspect of the state’s general undertaking to combat trafficking arising out of the Traff icking Convention and the Palerm o Protocol.

(d) Operational measures to protect victims or potential victims of trafficking may arise in certain circumstances.

(e) In common with Articles 2 and 3, Article 4 entails a procedural obligation to investigate “ situations of potential trafficking ”, which is not dependent upon a complaint from the victim.

“ … involves a complex set of dynamics, involving both overt and more subtle forms of coercion, to force compliance. ”

As a result, the investigation of such complaints “ …. requires an understand ing of the many subtle ways an individual can fall under the control of another ”. In brief compass, the main criticism of the State’s investigation in this case was that it was too blunt and simplistic. Notably, the Court adjudged the International Labour Organisation ’ s indicators of forced labour as “ a valuable bench mark ”: see [35]. Notably, in its consideration of the concept of “ penalty ”, the Court acknowledged that this need not necessarily take the form of physical violence or restraint. Rather, this can assume a more subtle m antle, usually of a psychological nature, embracing conduct such as threats to denounce a victim to the police or immigration authorities: see [77].

“ One person may exploit another in many different ways. ”

Turning its attention to “ the menace of a penalty ”, the Court stated, in [42]:

“ Where ‘forced or compulsory labour’ is concerned, the menace of a penalty can be exerted in various ways. It can be direct; it can also be indirect. Constraint can be mental or physical. It can be imposed by force of circumstances. Where it is alleged that one person has been compulsorily employed by another, the level of pay he or she has received, if any, may have evidential importance. It may point to coercion; it may bear on an employee’s ability to escape from his or her employer’s control. On its own, however, a derisory level of wages is not tantamount to coercion. ”

We shall revisit th is discrete issue of compulsion infra .

“ The unspoken but clear explanation for the workers’ preparedness to return to the risk of further subjection and helplessness was the contrast between the economic circumstances of the families they left behind and even the degraded expectation of a job in the UK …. The return of the workers does not constitute evidence that the conditions to which [they] were subjected were acceptable but, in the circumstances of the present case, is evidence of further exploitation by the offenders of personal circumstances of which they knew they could take advantage. ”

Notably, it was further held that, having been deceived by promises of attractive wages and working conditions in the United Kingdom, the victims, all adult males –

“ … had been subjected to conditions of neglect, abuse, deprivation and economic exploitation …. [and] …..

They were not prisoners but were effectively trapped and controlled, being unable to work legally elsewhere … and being unable to leave the country and return home. ”

See [3] and [21].

“The problem has been with us for some time, and has been growing. Unhappily different forms of exploitation are found in the sex industry, the construction industry, agriculture and residential care. That list is not comprehensive. Those who are exploited are always and inevitably vulnerable, and just because they are so vulnerable, profoundly reluctant to report what has happened or is happening to them. The Asylum and Immigration Act 2004 criminalised the exploitation of labour when it was connected to trafficking in human beings, but not otherwise. Therefore it did not prevent vulnerable but untrafficked individuals from being subjected to forced or compulsory labour. The Gang Masters ' Licensing Act 2004 established a system for licensing those who employed workers in specified industries. Nevertheless, this legislation, too did not address the entire problem. The end result was that many men and women continued to remain vulnerable to exploitation without any counter-balancing protection against exploitation. ”

Having noted the reform effected by section 71 of the Coroners and Justice Act 2009, the Court drew particular attention to the decision of the ECTHR in Si li adin v France and its earlier decision in SK .

“In determining the present question, the House is required by section 2(1) of the Human Rights Act 1998 to take into account any relevant Strasbourg case law. While such case law is not strictly binding, it has been held that courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court: R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, paragraph 26. This reflects the fact that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court. From this it follows that a national court subject to a duty such as that imposed by section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law. It is indeed unlawful under section 6 of the 1998 Act for a public authority, including a court, to act in a way which is incompatible with a Convention right. It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.”

The further ingredient in the argument is that since the decision of the Author i ty is justiciable before this Tribunal, a challenge to such decision by judicial review is inappropriate, having regard to the well known exhaustion of alternative remedies principle.

Section 82, 2002 Act

(i) Section 82 of the Nationality, Immigration and Asylum Act 2002 (the “ 2002 Act ”) which, both before and after the reforms effected by the Immigration Act 2014, with effect from 20 October 2014, made provision for a right of appeal against the refusal of a protection claim. Prior to 20 October 2014, section 82 provided:

“ (1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal.

(2) In this Part “immigration decision” means—

(a) refusal of leave to enter the United Kingdom ,

(b) refusal of entry clearance,

(c) refusal of a certificate of entitlement under section 10 of this Act,

(d) refusal to vary a person ' s leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,

(e) variation of a person ' s leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain,

(f) revocation under section 76 of this Act of indefinite leave to enter or remain in the United Kingdom ,

(g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b), (ba) or (c) of the Immigration and Asylum Act 1999 (c. 33) (removal of person unlawfully in United Kingdom),

(h) a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry: removal),

(ha) a decision that a person is to be removed from the United Kingdom by way of directions under section 47 of the Immigration, Asylum and Nationality Act 2006 (removal: persons with statutorily extended leave),

(i) a decision that a person is to be removed from the United Kingdom by way of directions given by virtue of paragraph 10A of that Schedule (family),

(ia) a decision that a person is to be removed from the United Kingdom by way of directions under paragraph 12(2) of Schedule 2 to the Immigration Act 1971 (c. 77) (seamen and aircrews),

(ib) a decision to make an order under section 2A of that Act (deprivation of right of abode),

(j) a decision to make a deportation order under section 5(1) of that Act, and

(k) refusal to revoke a deportation order under section 5(2) of that Act.

(3A) Subsection (2)(j) does not apply to a decision to make a deportation order which states that it is made in accordance with section 32(5) of the UK Borders Act 2007; but–

(a) a decision that section 32(5) applies is an immigration decision for the purposes of this Part, and

(b) a reference in this Part to an appeal against an automatic deportation order is a reference to an appeal against a decision of the Secretary of State that section 32(5) applies.

(4) The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part.”

Section 84, 2002 Act

(ii) Section 84 of the 2002 Act which, both before and after the aforementioned date, has made provision for appealing on the grounds that the removal of the Appellant from the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention and/or would breach the United Kingdom’s obligations in relation to persons eligible for humanitarian protection and/or would be unlawful under section 6 of the Human Rights Act 1998. Prior to to 20 October 2014, section 84 provided:

(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds—

(a) that the decision is not in accordance with immigration rules;

(b) that the decision is unlawful by virtue of Article 20A of the Race Relations (Northern Ireland) Order 1997 or by virtue of section 29 of the Equality Act 2010 (discrimination in the exercise of public functions etc) so far as relating to race as defined by section 9(1) of that Act;

(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant ' s Convention rights;

(d) that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant ' s rights under the Community Treaties in respect of entry to or residence in the United Kingdom;

(e) that the decision is otherwise not in accordance with the law;

(f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules;

(g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom ' s obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant ' s Convention rights.

(2) In subsection (1)(d) “EEA national” means a national of a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 (as it has effect from time to time).

(3) An appeal under section 83 must be brought on the grounds that removal of the appellant from the United Kingdom would breach the United Kingdom ' s obligations under the Refugee Convention.

(4) An appeal under section 83A must be brought on the grounds that removal of the appellant from the United Kingdom would breach the United Kingdom ' s obligations under the Refugee Convention.

“ …… t h ere is no right of appeal to this Tribunal against the Respondent’s trafficking decision: see Part (v) of the Nationality, Immigration and Asylum Act 2002. Secondly, the Trafficking Convention cannot be invoked as a free standing source of rights, obligations and legal effects and consequences in domestic law, as it is an unincorporated international treaty. ”

The decision continues:

“ A corollary of this principle is that a failure by a public authority to take into account the provisions of an unincorporated international treaty is not of itself a ground for impugning the exercise of a discretionary power: R v Ministry of Defence, ex parte Smith [1996] QB 517, page 558 (per Sir Thomas Bingham MR). It is, of course, established that unincorporated international instruments have a role in certain contexts, a paradigm example being the presumption that Parliament does not intend to legislate contrary to the United Kingdom ’s international obligations ….

Furthermore, a decision may be impugned where a public authority purports to apply an unincorporated international treaty provision but errs in doing so. ”

The Tribunal decided that none of these principles was of any avail to the Appellant, noting that it would have been open to him to challenge the Secretary of State’s trafficking decision by judicial review and stating, at [34]:

“ We are of the opinion that back door challenges to trafficking decisions made by the Respondent under the Trafficking Convention are not permissible in appeals of the present kind. They lie out with the competence of the First-tier and Upper Tribunals. ”

The essence of the decision was that the jurisdiction of this Tribunal is statutory and does not encompass a direct challenge of this kind.

“ The question in this appeal is the extent to which (if at all) Judges of the Immigration and Asylum Chamber should regard as conclusive decisions of the ‘Competent Authority’ determining that an appellant before them has or has not been a victim of trafficking. ”

There were two decisions in the matrix. The first was the Secretary of State’s decision rejecting the Appellant’s asylum claim. The second was the decision of the A uthority that the Appellant was not the victim of human trafficking. The Appellant challenged the asylum refusal decision by appeal to the FtT. The appeal was dismissed. On further appeal to the Upper Tribunal, the question arose whether the FtT had erred in law by failing to make a finding on the trafficking issue. It was held that the FtT “ ….had no jurisdiction to review the trafficking decision of the UKBA ”: see [9]. No error of law was demonstrated and the appeal was dismissed.

“ If the First tier Tribunal is entitled to take into account a decision that an appellant is (or has been) a victim of trafficking it seems odd that , if a perverse decision has been reached that an appellant has not been a victim of trafficking, the Tribunal cannot consider whether the facts of the case do, in fact, show that the appellant was a victim of trafficking. ”

(our emphasis)

In thus holding, the Court reasoned that the decision in Secretary of State for the Home Department v Abdi [1996] Imm AR 148 is authority for the proposition that a failure by the Secretary of State to apply her own policy is an error of law. The Court further held that there is no obligation on the appellant to challenge a negative trafficking decision by judicial review, stating at [14]:

“ The FT T Judge should consider the matter for himself. ”

The Court expressed its conclusion in the following terms, at [17]:

“ ….. First tier Tribunal j udges are competent to consider whether the Secretary of State has complied with her policy in relation to trafficking. If asked to consider that question, they should then decide whether she has in fact complied with her policy since that is (or may be) rele vant to her removal decision.

[18] …… No doubt, if a conclusive decision has been reached by the Competent Authority, First T ier Tribunals will be astute (save perhaps in rare circumstances) to allow an appellant to re-run a case already decided against him on the facts. But where, as here, it is arguable that, on the facts found or accepted, the Competent Authority has reached a decision which was not open to it, that argument should be heard and taken into account. ”

“ The Respondent accepts that the Tribunal (be it First-tier or Upper) generally can consider whether a person has been trafficked for the purpose of assessing the factual matrix of a case leading to any assessment of risk on return. The starting point for such consideration will of course be the decision of the Competent Authority on whether the Appellant has been trafficked. The Respondent agrees that the issue as [to] whether someone has been trafficked or not can go towards the question of risk on return; in fact in many cases it may well be an important fact finding exercise going to the very heart of risk on return. ”

Next, attention is draw n to the status of the Trafficking Convention as an unincorporated international treaty. This is followed by the passage:

“ Therefore, as the present appeal is one against the SSHD’s decision to remove the Appellant to Pakistan, the only relevance of the [Trafficking Convention] is whether the Appellant has been trafficked as part of his narrative as to why he is at risk on return to Pakistan. Nothing therefore turns on the trafficking issue if he is not at risk on return ….. The [Upper Tribunal] cannot consider the provisions of [the Trafficking Convention] which do not go to the question of whether the Appellant has been trafficked. ”

The specific provisions of the Convention highlighted in this context are Articles 12 – 16.

“ Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct contained in Article 4 of this Convention, when committed intentionally. ”

Article 10(2) , in somewhat infelicitous language, describes this as an “ identification process as victim of an offence ”. We construe this as a clear reference to the universally recognised criminal law processes of investigatio n, prosecution and punishment. We would add that, i n this respect, a distinction is to be made between the status of trafficking victim and the status of victim of a criminal offence.

(a) Having regard to the decision of the ECTHR in Rantsev , Article 4 ECHR, which outlaws slavery, servitude and forced or compulsory labour, encompasses also human trafficking.

(b) Trafficking decisions are not immigration decisions within the compass of the 2002 Act, with the result that judicial review provides the appropriate mechanism for direct challenge.

(c) Tribunals must take into account, where relevant, a decision that an appellant has been a victim of trafficking.

Bernard McCloskey

THE HON. MR JUSTICE MCCLOSKEY

IMMIGRATION AND ASYLUM CHAMBER

Date: 15 February 2016

APPENDIX