DC v The Secretary of State for the Home Department

This is the re-making of the decision in the appellant’s appeal against the refusal on 2 December 2017 by the respondent of the appellant’s protection and human rights claims. The decision of the First-tier Tribunal, which had allowed the appellant’s appeal by a decision dated 3 October 2018, was set aside in its entirety by Upper Tribunal Judge Gill in a decision dated 11 April 2019. That decision , in which the appellant is referred to as “DJ”, is annexed to this one.

In refusing the appellant’s claims, the respondent accepted that the appellant was a citizen of Albania and that her claimed identity was correct. The respondent , however, rejected the assertion that the appellant had been the victim of sex trafficking and that she had been domestically abused by her father. The refusal letter drew upon the appellant’s asylum interview record, a letter from her representatives of 13 February 2017 and a letter from what was said to be a doctor in Albania dated 18 September 2015. From these, the respondent noted that the appellant claimed to be a member of a particular social group; namely , women who had been trafficked. Her father used to beat the appellant when he was drunk and the doctor’s letter said she had been mistreated by her family from 2009 to 2014.

In May 2011, the appellant said she met a man whom we shall call B , with whom she began a relationship which lasted until August of that year. When the appellant attempted to end the relationship, B began blackmailing her to work as a prostitute. He threatened to show her family a sex video of the appellant that he had secretly made.

On 26 August 201 1 , B came to the appellant ’s family home to take her away. B informed the appellant ’s father about the appellant being a prostitute, a t which her father threw B from a balcony and then beat the appellant , who woke up at the home of her uncle, to find that she had been treated by a doctor. She stayed at her uncle’s from then on, occasionally going home to visit her mother. During this time, the appellant worked as a prostitute for B.

In August 2015, B took the appellant to Italy by car for the purposes of prostitution. In Italy, the appellant met a client of B, called Lorenzo, who arranged her escape, using false documents. Lorenzo and the appellant travelled to France and then to Belfast, via Dublin. The appellant was detained in Belfast, attempting to take a ferry to Scotland.

The appellant told the respondent that she feared persecution from B because he had forced her to work as a prostitute. She also feared ill-treatment and persecution from her father “because he is an alcoholic and beat you generally … and/or he is aware of your situation as a prostitute and will kill you because of this” (decision letter, paragraph 20).

As we have already said, the decision stated that the appellant was not accepted to be the victim of trafficking. That is plain from paragraph 44 , which reads: “ Not accepted – You are a victim of trafficking” (original emphases) . At paragraph 45, the reason given by the respondent for this conclusion was that the appellant had been referred to the C ompetent A uthority (CA) under the National Referral Mechanism (NRM), which has the function of identifying victims of trafficking under the Council of Europe Convention on Action against Trafficking in Human Beings. Paragraph 45 of the refusal letter stated that the NRM (sic; presumably the CA was meant) , having considered the appellant ’s claim and all the available evidence, w as of the “opinion that you are not a victim of trafficking. The reasons for this decision have been outlined in their conclusive decision letter dated 08 August 2016. Therefore in light of the NRM response, it is not accepted that you have been trafficked”.

At paragraph 60, however, the letter stated that “ a s previously noted, it is accepted you were a victim of trafficking” . On this basis, the appellant ’s case was, accordingly, assessed by the respondent by reference to the relevant country guidance on the risk on return to Albania of victims of trafficking : TD and AD (Trafficked W omen) CG [2016] UKUT 00092 (IAC) and AM and BM (Trafficked Women) Albania CG [2010] UKUT 80.

Applying that country guidance to the appellant’s circumstances, as the respondent considered them to be, the respondent concluded that the appellant would not be at real risk of serious harm on return to Albania, as someone who had been the victim of trafficking. Amongst the factors considered were the appellant ’s level of education (having completed school at age 18 and start ed university) and the fact that the appellant would be returning with an illegitimate child, born in the United Kingdom. It is clear from paragraph 65 of the decision letter that the respondent considered the father of the child was Lorenzo ; in any event, the respondent took the position that the child would be able to call on its father for support in Albania.

The respondent also considered that the age of the appellant (23 at the date of decision) meant that she was not in the prominent risk category for re-trafficking, albeit that the Upper Tribunal had found that it was “not unusual for trafficked women to be older”.

On a proper reading of the refusal letter, we consider that the respondent , having concluded that the appellant had not shown that she had been a victim of trafficking, nevertheless considered what the position might be, if she had been trafficked.

Before turning to the re-making of the appellant ’s appeal, it is necessary to address the matter raised in Upper Tribunal Judge Gill’s decision of 11 April 2019. At paragraph 40, she identified –

We received helpful submissions from the representatives on this issue. In particular, Mr Cha kmakjian provided a skeleton argument dealing with the authorities , to which we shall turn in a moment. Overall, we accept much of Mr Chak makjian ’s analysis, which has helped to inform the discussion which follows.

Before going any further, it is necessary to set out in somewhat greater detail the legal framework that we mention in paragraph 7 above.

On 17 December 2008, the United Kingdom ratified the Council of Europe Convention on Action Against Trafficking in Human Beings, which had come into force in 2009. The purpose of the Convention is to prevent and combat trafficking in human beings; to identify and protect victims of trafficking and to safeguard their rights; and to promote international co-operation against trafficking.

Article 10 of the Convention provides as follows:

It can be seen from Article 10 that there is a preliminary analysis to be conducted in determining whether a person who is liable to be removed from the United Kingdom is a victim of trafficking. Th is requires a determination of whether the competent authorities have “reasonable grounds to believe that a person has been victim of trafficking”. If the CA decides that there are no reasonable grounds for so believing, the Convention imposes no further impediment to that person’s removal. But if it is determined that there are such reasonable grounds, it is necessary for the CA to proceed to a second stage, which involves a substantive determination of whether the person is a victim of trafficking.

If, at the end of that second stage, the CA determines conclusively that the person is not a victim of trafficking, then, again, the Convention will pose no further impediment to removal. But if the conclusive decision is that the person is a victim, the Convention does not require the victim to be given the right to live in the United Kingdom. What Article 14 requires is that a renewable residence permit shall be issued to the victim in two particular situations: (i) to enable the victim to co-operate with the authorities for the purposes of criminal proceedings or investigation; and (ii) where the CA considers it necessary for the victim to stay in the United Kingdom owing to his or her personal situation.

The Convention is an unincorporated international treaty, whose provisions have not found their way into any primary or secondary legislation in the United Kingdom; nor even into the immigration rules. As a result, the issue of the United Kingdom’s compliance with the Convention is a matter of government policy and practice: Ahmed v HM Treasury [2010] UKSC 2. However, although the Convention is not a free-standing source of rights, the respondent’s policy is to give effect to the Convention and it will be an error of law for the respondent not to take that policy into account: AS (Afghanistan) v SSHD [2013] EWCA Civ 1469.

The way in which the United Kingdom gives effect to its obligations under the Convention is , therefore, through the respondent’s domestic policies. The NRM provides a non-statutory framework for victim identification and support. The NRM is designed to facilitate co-operation and information-sharing between the different agencies that may be involved in a trafficking case, in order to identify victims and provide them with advice, accommodation, protection and support. The respondent has also published guidance on the functions of the CA. This guidance is intended to help the CA decide whether a person referred under the NRM is a victim of trafficking.

There is no right of appeal against a negative “reasonable grounds” decision or against a negative “conclusive grounds” decision. The only means of challenge is judicial review. The test is the well-known one of rationality (aka Wednesbury unreasonableness).

The guidance to the CA states that the issue to be decided in a “reasonable grounds” decision is whether it is “reasonable to believe” a person is a victim of trafficking, on the information then available. The guidance describes this as a “relatively low threshold”. By contrast, the standard of proof that the CA is to apply in making a “ conclusive grounds ” decision is the balance of probabilities. In R (MN) v Secretary of State for the Home Department and the Aire Centre [2018] EWHC 3268 (Admin), to which we shall return in due course, Farbey J held that the balance of probabilities was the correct standard.

In deciding a protection claim or an appeal against the refusal of such a claim, in which the issue is whether a person’s fear of persecution or other serious harm is well-founded, the respondent or tribunal applies the so-called lower standard of proof of a “real risk” or “reasonable likelihood”: R (Sivakumaran) v SSHD [1987] UKHL 1.

There are four authorities to consider: Secretary of State for the Home Department v MS (Pakistan) [2018] EWCA Civ 594, AUJ (Trafficking – no conclusive grounds decision) Bangladesh [2018] UKUT 200 (IAC), ES (s82 NIA 2002; negative NRM (Albania) [2018] UKUT 335 (IAC) and R (MN) v Secretary of State for the Home Department, The Aire Centre intervening [2018] EWHC 3268 (Admin).

In this case, the Court of Appeal was required to determine the lawfulness of decision of the Upper Tribunal, which had allowed the claimant’s appeal on the basis that, although the claimant had not established a real risk of serious harm if returned to Pakistan (whether by reason of re-trafficking or otherwise), the claimant had not received a lawful decision from the CA in respect of his claim to have been trafficked to the United Kingdom from Pakistan.

Flaux LJ gave the only reasoned judgment of the Court . The appeal which the Upper Tribunal allowed had been brought under the provisions of the Nationality, Immigration and Asylum Act 2002, as they were prior to the extensive amendments made by the Immigration Act 2014. The claimant had appealed against a decision of the respondent that fell within section 82(2)(g) of the 2002 Act; namely, a decision to remove the claimant from the United Kingdom under the powers contained in section 10 of the Immigration and Asylum 1999. Under section 84(1) of the 2002 Act, as then in force, the claimant could appeal against the removal decision on the ground that that decision was unlawful under section 6 of the Human Rights Act 1998 (84(1)(c)) or that the decision was “otherwise not in accordance with the law” ( section 84(1)(e).

Flaux LJ considered that what the Upper Tribunal had done was “to engage in a complete re-determination of the issues as to whether the respondent was trafficked and to reach a decision that he was, despite having failed to identify any specific respect in which the decisions of the authority were open to a Wednesbury challenge” (paragraph 77). Flaux LJ held that th is approach was wrong in law. The Upper Tribunal was bound by the authority of the Court of Appeal in AS (Afghanistan) , which held that a tribunal hearing an appeal against a removal decision as described in section 82(2)(g) of the 2002 Act could reach its own conclusion whether an appellant had been trafficked, only where the decision of the CA was found by that tribunal to be perverse: paragraphs 23 to 26, 69 to 71 and 77.

A good deal of the uncertainty about the role of the First-tier Tribunal and the Upper Tribunal in dealing with decisions of the CA that has arisen since MS (Pakistan) results from a failure to appreciate the proper ambit of Flaux LJ’s judgment. At no point did he hold that a tribunal deciding an appeal under the 2002 Act (whether before or after the 2014 amendments to the appellate regime) is not permitt ed , for the purposes of determining that appeal, to reach its own conclusions, applying the lower standard of proof, on whether the appellant has been the victim of trafficking . What the C ourt was doing in MS (Pakistan) was to identify the circumstances in which the tribunal c an directly critique a “reasonable grounds” or “conclusive grounds” decision .

As we have seen, the Convention requires the United Kingdom, along with other signatory states, to act in a positive manner towards those who are victims of trafficking . The respondent gives effect to that requirement (which is not directly enforceable in United Kingdom law) by means of policies which, if not followed, will give rise to public law liability, as AS (Afghanistan) explain s . For example, a person who has been adjudged by the CA to be a victim of trafficking may be granted discretionary leave to remain in the United Kingdom, even where he or she does not qualify “for other leave such as asylum or humanitarian protection” (Home Office: Discretionary leave considerations for victims of modern slavery – V ersion 2.0 ( 10 September 2018 )).

In allowing the claimant’s appeal in MS (Pakistan) , the Upper T ribunal was deciding an appeal which , under the relevant legislation, had to be allowed if the Upper T ribunal found the removal decision was “not in accordance with the law”. Insofar as that issue turned upon whether the respondent had acted in accordance with her policies on trafficking, Flaux LJ held that the question for the Upper Tribunal was not whether it would have reached a different decision than the CA did on this issue but, rather, whether the CA’s decision was irrational. The Court of Appeal’s conclusion was, therefore, a paradigm instance of the well-established legal position, which leaves the formulation and implementation of policy to government, not the judiciary, provided that the government does not act in a way that is Wednesbury unreasonable.

Under the present appellate regime, there is no longer a requirement to allow an appeal where a decision is “not in accordance with the law”, in the sense just described. It is, however, still possible for the same considerations to impact upon a so-called human rights appeal; that is to say, an appeal brought under section 84(2) of the 2002 Act on the ground that the decision to refuse a person’s human rights claim is unlawful under section 6 of the Human Rights Act 1998 (whereby it is unlawful for a public authority to act in a way that is incompatible with a right contained in the European Convention on Human Rights). A refusal of a human rights claim is a refusal of a person’s claim that to remove him or her from the United Kingdom or to require them to leave would be unlawful under section 6: see section 113 of the 2002 Act .

Provided a person has a private or family life that is protected by Article 8(1) of the ECHR, he or she can bring a human rights appeal on the basis that it would be a disproportionate interference with th eir enjoyment of that right to remove them from the United Kingdom or require them to leave . In deciding what is proportionate, the tribunal will be required to give weight to the importance of maintaining the respondent’s system of immigration controls. But where the respondent has failed to follow her own policies relating to the Trafficking Convention, which impact upon whether and in what circumstances a person might be given leave to remain as a victim of trafficking, the weight to be given to the respondent’s side of the proportionality balance may , depending on all the circumstances , be significantly reduced.

Accordingly, if one takes the scenario in MS (Pakistan) of a person who had no well-founded fear of future harm in Pakistan, a “conclusive grounds” decision that is found by the tribunal to have been reached irrationally may well lead to the tribunal deciding that removal at this stage would be a disproportionate interference with the appellant’s Article 8 rights . It will, not, however, be possible for the tribunal to reduce the weight to be given to immigration control merely because the tribunal would have decided the historic trafficking matter differently from the CA. It is also important to emphasise the narrow ambit of this scenario. There will, for example, be no practical scope for it where the appellant succeeds in a protection claim or where, as we go on to say at paragraph 44 below, the fact of having been trafficked is a matter that impacts directly on Article 8 by reason of its physical or psychological consequences on the appellant . Nor is it likely to avail an appellant who, on the evidence now before the tribunal, is bound to be refused discretionary leave pursuant to Article 14 of the Convention, even if the policy were to be properly applied. Moreover, as the underlined words above indicate, the tribunal will merely be finding that, because of the respondent’s failure to follow her policy, removal would only be disproportionate before the respondent has been able to rectify that failure. For all these reasons, we doubt that this scenario will be commonly encountered.

By contrast, in a n appeal against the refusal of a protection claim under section 82(1)(a) of the 2002 Act, the assessment of risk on return, whether in terms of the Refugee Convention or Article 3 of the ECHR , is for the tribunal to determine. To the extent that the resolution of th is “protection appeal ” involves making findings of f act as to whether the appellant has been the victim of trafficking, the tribunal must assess all the evidence, applying the lower standard of proof. The fact that the CA may have reached a negative “reasonable grounds” or “conclusive grounds” decision will be part of the evidence that the tribunal will have to assess, giving it such weight as is due (and, of course, bearing in mind that the standard of proof applied in a “reasonable grounds” decision was the relatively low one described in paragraph 22 above, whereas in a “conclusive grounds” decision, it was was the balance of probabilities).

If the tribunal considers that, on the evidence before the CA, the latter could not rationally have reached the conclusion it did, then no weight will be afforded to the CA’s conclusions. But , even if the CA’s negative decision was impeccable, it will not thereby be determinative of the protection appeal. Not only is it perfectly possible for the tribunal to conclude that it is reasonably likely the appellant was trafficked, even though the CA has found , on the balance of probabilities in its “conclusive grounds” decision, that the appellant was not; the tribunal may well have before it evidence that was not available to the CA.

Where the CA has made a positive “conclusive grounds” decision , this will point strongly in the appellant’s favour in the protection appeal, given the higher standard of proof applied by the CA in coming to that decision . But, again, it will not necessarily be determinative. The evidence before the tribunal may, for example, show that the appellant has lied because it has subsequently emerged he was fingerprinted in Greece at a time when, according to the appellant’s account, he was being trafficked in Afghanistan.

Once one appreciates the distinction between the tribunal’s task in assessing risk on return in a protection appeal and its task in deciding whether the respondent has applied her policies regarding the Trafficking Convention, the true ambit of Flaux LJ’s judgment in MS (Pakistan) stands revealed and we can turn to the cases that have had to grapple with it.

The first part of the headnote to AUJ reads as follows:-

Although th is part of the headnote derives from paragraph 63(1) of the Upper Tribunal ’s decision, where the hypothesis was that there had, in fact, been no “conclusive grounds” decision of the CA, we consider that the headnote is correct, as a general proposition, whether there has been a “ conclusive grounds ” decision or not. If there has, and the decision of the CA is that the appellant has not been a victim of trafficking, then , as we have said, that will be part of the factual matrix that the fact-finding tribunal will assess, in reaching its overall conclusion on whether or not there is a real risk of persecution or other serious harm to the appellant, in the event of his or her removal from the United Kingdom. As we have already attempted to explain, t here is here no question of the tribunal deciding a protection appeal being bound to accept a “reasonable grounds” or a “conclusive grounds” decision, unless that decision is shown to be perverse.

For this reason, the passage in the respondent ’s decision letter in the present case to which we have made reference in paragraph 7 above was wrong. The respondent (like the tribunal on appeal) ha s to apply the lower standard of proof when considering risk on return, as to which the question whether the appellant had previously been trafficked was clearly relevant.

The second part of the headnote in AUJ also derives from paragraph 63 of the decision:-

In this regard, it is important to note what the Upper Tribunal said at paragraph 59 of the decision in AUJ :-

Paragraph 59 is important. It is consistent with the judgment in MS (Pakistan) in that, as we have seen, an assertion that the appellant should not be removed because of an alleged failure of the respondent to apply her policy responsibilities that flow from the Trafficking Convention can be advanced before the tribunal only if the respondent’s decision - making (or absence thereof) through the CA is perverse. That remains so, notwithstanding that the appeal in the present case was brought under the post-2014 Act a ppellate regime. The Court of Appeal in MS (Pakistan) was fully aware of the changes brought by the 2014 Act: see paragraphs 18 and 19 of the judgment . There is nothing in th at judgment to show that the C ourt was of the view that the present regime rendered otiose the Court’s judgment in AS (Afghanistan) .

That said, the question of whether an appellant has been a victim of trafficking may well be relevant to the discrete issue of whether the appellant’s removal would breach the ECHR, even where it is not asserted that there is a trafficking-related risk of serious harm in the country of return and irrespective of any issue as to whether there has been a failure to abide by the respondent’s policies relating to the Trafficking Convention . This is the important point being made in paragraph 63(2) of AUJ . For example, the fact of being trafficked may have caused physical or psychological harm to the appellant, with consequent medical needs that may require to be addressed by the t ribunal; in particular, as part of an Article 8 claim.

In this case, the Upper Tribunal held that a decision made by the CA on the balance of probabilities is not “of primary relevan ce ” to the determination of an asylum appeal.

Again, that conclusion is plainly correct. At paragraph 24 of its decision, however, the Upper Tribunal based its reasoning on the fact that both AS (Afghanistan) and MS (Pakistan) were concerned with the previous appellate regime. But, a s we have already explained, th o se cases have relevance to the present regime. The key distinction is not the difference in regimes but that mentioned in paragraph 37 above.

This case involved a judicial review of a decision taken by the CA that the claimant was not a victim of trafficking. The claimant contended that the CA had applied the balance of probabilities in its assessment, when it should have applied the lower standard of proof (reasonable likelihood), which pertains in international protection cases in the tribunal.

Farbey J rejected the claim. At paragraph 43, she found that the Secretary of State was entitled to set the standard as the balance of probabilities. Th is was the standard of proof “that is well recognised in domestic law. It is simple to state. It reflects the CA’s task at the conclusive stage, which is to decide whether or not a person is – as a matter of fact – a victim of trafficking”.

Farbey J then turned to the principle of non-refoulement. Here, the claimant’s argument was that applying the higher standard of proof in trafficking cases might put the United Kingdom in breach of its international obligation of non-r ef oulement.

In a useful analysis of the relevant case law, Farbey J rejected this submission:-

Beginning at paragraph 55, Farbey J examined the relationship of trafficking decisions with decisions regarding risk of serious harm on return :-

Although we have necessarily had to address in more detail the relationship between trafficking issues and appeals under the 2002 Act, we would respectfully adopt what is said by Farbey J in the above paragraphs.

Before proceeding to analyse the appellant’s case, it may be useful to summarise our analysis of the relationship between decisions of the C A pursuant to the Trafficking Convention and decisions of tribunals deciding protection and human rights appeals:

The appeal is dismissed on both protection and human rights grounds.

The Secretary of State has been granted permission to appeal the decision of Judge of the First-tier Tribunal Wright (hereafter the “judge”) who, in a decision promulgated on 26 October 2018 following a hearing on 27 September 2018, allowed the appeal of Miss DJ (hereafter the “claimant”), a national of Albania born in August 1994, against a decision of the respondent of 2 December 2017 to refuse her claim of 16 September 2015 for refugee and humanitarian protection. The decision also refused the claimant’s Article 8 claim. The reasons for the Secretary of State's decision are given in the decision letter dated 2 December 2017 (hereafter the “Decision Letter”).

The claimant’s grounds of appeal to the First-tier Tribunal raised her asylum and humanitarian protection claims and her rights under Articles 2 and 3 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). There was no mention of Article 8.

The judge found (at para 37) that “ [the claimant] was at real risk or a substantial likelihood of persecution were [she] to be returned to Albania and in sufficiency [sic] of state protection”. At para 38, she said she allowed the appeal but did not indicate the ground of appeal upon which the appeal was allowed. However, it is evident from her finding at para 37 that she allowed the appeal on asylum grounds. In her assessment of the case (at paras 32-36), she did not mention humanitarian protection or Articles 2, 3 or 8 of the ECHR.

The claimant claimed to have left Albania on 24 August 2015 and travelled by car to Milan, Italy, where she said she stayed for about two weeks. She then travelled to France followed by Dublin. From Dublin, she travelled to the United Kingdom, arriving on 8 September 2015 on which date she was served with form RED.0001 as an illegal entrant. On 16 September 2015, she claimed asylum.

On 21 September 2015, the claimant was referred to the Competent Authority (“CA”) under the National Referral Mechanism (“NRM”). On 23 September 2015, the CA made a positive “Reasonable Grounds” decision. On 8 August 2016, the CA reached a “Conclusive Grounds” decision, that the claimant was not a victim of trafficking. The claimant did not judicially review this decision.

The Secretary of State then refused her asylum claim which she appealed, as stated above.

The following summary is based on paras 17-20 of the judge's decision:

The claimant claimed that in May to August 2011, she met an older man who I shall refer to as “B”. She began a sexual relationship with him. The nature of their relationship changed and he forced her into prostitution, by blackmailing her with a video she was unaware he had taken of them having sex. On one occasion, B went to her house and her father became aware that she had been in a sexual relationship with B. Her father beat her unconscious. He threw B from the balcony. She woke up at her uncle’s house. B then forced her into prostitution. He forced her to work as a prostitute in Italy.

The claimant said she was at risk of persecution in Albania due to the fact that she had been trafficked to Italy; she was sexually exploited; her father had disowned her; and she is a now a single mother of a child who will be seen as an illegitimate child in Albania.

The judge heard submissions as to the approach she should take in relation to the “Conclusive Grounds” decision pursuant to the judgment of the Court of Appeal in MS (Pakistan) [2018] EWCA Civ 594 and the Upper Tribunal’s decision in AUJ (Trafficking – no conclusive grounds decision) Bangladesh [2018] UKUT 00200 (IAC). The respondent's representative stated that he was content for the judge to decide the claimant's substantive asylum claim (para 10). The judge decided to do so, applying the lower standard of proof applicable to asylum claims (para 16 of t he decision).

In view of the submissions of Mr Clarke at the hearing before me, it is necessary to quote paras 32-37 of the judge's decision. These read:

The Secretary of State's grounds may be summarised as follows:

By an amended skeleton argument dated 17 January 2019, the Secretary of State stated, in reliance upon paras 55-63 of the judgment of Farbey J in R (MN) v SSHD [2018] EWHC 3268 (QB), that he no longer relied upon Ground 4.

I informed the parties that I would decide whether the judge had materially erred in law and whether her decision should be set aside by considering only grounds 1, 2 and 3. However, in the event that the judge’s decision was set aside, the Upper Tribunal would wish to hear submissions at the resumed hearing on the correct approach to be followed by the First-tier Tribunal and the Upper Tribunal in determining asylum claims which include a claim that an individual has been trafficked, in view of the judgments in AUJ , ES (s82 NIA 2002; negative NRM) Albania [2018] UKUT 00335 (IAC) and MN . I emphasised that this would not arise if I concluded that the judge had not materially erred in law as contended in grounds 1, 2 and/or 3.

Mr Clarke amplified on the grounds, taking me through the judge's decision. He drew my attention to the fact that the Decision Letter and the Secretary of State's representative at the hearing before the judge raised specific credibility issues which I will refer to below and which, in his submission, the judge did not engage with or resolve. He submitted that the judge's reasons were confined to para 34. At para 33, the judge referred to and quoted from HK . At para 34, the judge reversed the burden of proof. This is then followed by para 35 which concerns the risk on return and para 36 which concerns the claimant's circumstances in Albania as a single mother of an illegitimate child. At para 37, the judge set out her conclusion.

Mr Clarke submitted that it is therefore clear that the judge had not made a clear finding that the claimant had been trafficked and that, even if it is considered that she had made such a finding by implication on account of the fact that she had referred to the claimant being re-trafficked, she had failed to give adequate reasons.

In response, Mr Trussler submitted that the judge's reasons were not confined to para 34. She stated at para 32 that she had undertaken her credibility assessment having scrutinised the evidence using the tools she described in that paragraph. She said she had applied anxious scrutiny to the evidence. At para 33, she said she had in mind the judgment in HK .

Mr Trussler asked me to bear in mind that the Decision Letter was a very lengthy document. He submitted that the fact that the judge had not dealt with each and every point raised in the Decision Letter does not undermine her findings of fact.

Mr Trussler referred me to the final sentence of para 34 where the judge had stated that the Secretary of State had stated that he had evidence to undermine the claimant’s account but had failed to produce it. This was a reference to the fact that a previous hearing in February 2018 had been adjourned in order to enable the Secretary of State to produce documents which he had failed to produce.

Mr Trussler submitted that the judge had plainly undertaken a careful assessment of the evidence. The claimant had submitted a witness statement which she adopted at the hearing before the judge. The claimant was cross-examined at the hearing. The judge had believed her evidence. She was entitled to accept her evidence. Interference with her decision would not be justified.

I reserved my decision.

Whilst it is correct that the judge did not state, in terms, that she found that the claimant had been trafficked, I am satisfied that it is implicit from her reasoning that she did find that the claimant had been trafficked. As Mr Clarke submitted, it is clear from both the Decision Letter and the submissions of the Secretary of State's representative before the judge, that the Secretary of State did not accept that the claimant had been trafficked. Accordingly, when the judge said at para 34 that “ [The claimant’s] account of her time in Albania and Italy and her oral evidence, on the applicable burden of proof was accepted”, she could only have meant that she accepted the claimant's account.

I have therefore concluded that ground 1 is not established.

It is clear from the Decision Letter and the judge's summary of the submissions of the Secretary of State's representative at the hearing before her that specific credibility issues were raised on the Secretary of State's behalf. By way of example:

There is simply no mention at all in the judge’s decision of any credibility point raised on the Secretary of State's behalf.

I entirely agree with Mr Trussler that judges are not obliged to deal with each and every aspect of a party’s case. Indeed, I have noted that the judge said in the final sentence of para 32 that “ Not all matters considered are referred to in this judgment; however that is not to say they were not fully examined or analysed”.

However, the judge completely failed to deal with or engage with any aspect of the Secretary of State's case. She explained, at para 32, the principles she said she had applied in assessing the claimant's evidence but her reasons for accepting the claimant's account are a complete mystery and known only to her.

Just as it would be wholly unacceptable for a judge to reject an claimant's account without giving any reasons whatsoever, it is unacceptable for a judge to accept an account without giving any reasons whatsoever when the Secretary of State has raised specific points concerning the individual's credibility.

I stress that this is not a case of a judge who has engaged with certain aspects of the Secretary of State's reason for disputing an appellant's credibility but a case of a judge wholly failing to engage with any part of the Secretary of State's case.

I am therefore satisfied that ground 2 is established. The failure to give any reasons at all for accepting the appellant’s account is a material error such that it justifies setting aside the judge's decision on this ground alone, leaving aside ground 3.

I am also satisfied that ground 3 is established. It is clear from para 34 of the judge's decision that she did reverse the burden of proof. Again, this is in itself a material error, such that it justifies setting aside the judge's decision on this ground alone, leaving aside ground 2.

For the above reasons, I set aside the decision of Judge Wright to allow the claimant’s appeal. Her summary of the evidence at paras 17-20 of her decision stands as the record of the evidence she heard.

I agreed with the parties that, if the judge's decision was set aside, the claimant's appeal would be heard de novo . This means that credibility will need to be re-assessed. The grounds that are to be decided are the grounds that were before the First-tier Tribunal in the appeal before the judge. As I said at para 2 above, there was no mention of Article 8 in the claimant’s grounds of appeal to the First-tier Tribunal. Notwithstanding the fact that the Decision Letter considered her Article 8 claim, her grounds of appeal raised her asylum and humanitarian protection claims and her rights under Articles 2 and 3 of the ECHR only.

Although the judge said at para 12 of her decision:

Accordingly, the appeal that was brought to the First-tier Tribunal did not raise Article 8.

Further and in any event, there was no application by the claimant to cross-appeal the decision of the judge on the ground that she had failed to decide her Article 8 claim. Upon the Secretary of State being granted permission to appeal to the Upper Tribunal, it is reasonable to expect the claimant to have made such an application to cross-appeal if she had wished to contend that the judge had erred by failing to determine Article 8. There was no such application to cross-appeal at the hearing before me, nor did Mr Trussler mention Article 8 at any point.

It follows therefore that the re-making of the decision on the claimant’s appeal will be limited to her asylum and humanitarian protection grounds of appeal and (in relation to her human rights grounds of appeal) her claims under Articles 2 and 3 of the ECHR.

I turn to decide whether the decision on the claimant's appeal should be re-made in the First-tier Tribunal or in the Upper Tribunal. Mr Trussler and Mr Clarke submitted that the appeal should be remitted to the First-tier Tribunal in view of the fact that the claimant's appeal was allowed by the judge.

As is clear from the judge's decision, submissions were made as to whether the judge should following the judgment of the Court of Appeal in MS (Pakistan) and the Upper Tribunal in AUJ . In the period between the date of the hearing before the judge (27 September 2018) and the date that her decision was promulgated (26 October 2018), the Upper Tribunal published the decision in ES . The judgment of Farbey J in MN , which was delivered on 29 November 2018, is not binding on the Upper Tribunal strictly speaking, whereas the Court of Appeal's judgment in MS (Pakistan) is binding.

It is therefore a need for general guidance to be given on the approach to be taken by the First-tier Tribunal or the Upper Tribunal in determining appeals brought on protection grounds in which it is alleged that the appellant has been trafficked but where there has been a negative “Conclusive Grounds” decision which has not been challenged in judicial review proceedings. In the absence of such guidance, the judge deciding this appeal in the First-tier Tribunal on the next occasion would be faced with having to decide for himself or herself the approach that should be followed.

We have therefore decided that the decision on the claimant's appeal should be re-made in the Upper Tribunal so that such general guidance can be given.