News | Published April 06 2020

Kilby Jones in focus: DC [trafficking: protection/human rights appeals]

Kilby Jones Solicitors are a specialist law firm wholly dedicated to immigration, nationality freedom of movement and human rights law. In this article, The Parliamentary Review explores another of the firm’s most successful cases, which was crucial as it paved the way for new clarity on the law with regards to human trafficking victims seeking asylum in the UK.

The Upper Tribunal in the case DC (trafficking: protection/human rights appeals) Albania [2019] UKUT 351 (IAC) confirmed, clarified, and broadened the jurisdiction of the Tribunal to determine issues for itself, where there is an existing trafficking [National Referral Mechanism] decision that has been made by the Competent Authority.

Alex Chakmakjian, instructed by Heather Kilby of Kilby Jones' solicitors, acted for the Appellant. The appeal was heard by the President of the Upper Tribunal [IAC], Mr Justice Peter Lane, alongside Upper Tribunal Judge Finch and Upper Tribunal Judge Gill. The case would see both judges revisit some of their own decisions concerning previous cases in order to clarify the law in the context of trafficking.

In coming to a judgement, the Upper Tribunal explored Chakmakjian's analyses to establish the key principles and produce consolidated guidance on the role of trafficking decisions which interact with immigration appeals. The judgement made in the case of DC summarises the relevant case-law on the proper approach to be taken going forward, going on to discuss the effects of decisions in other cases such as those of MS (Pakistan) [2018] EWCA Civ 594, AUJ (Trafficking – no conclusive grounds decision) Bangladesh [2018] UKUT 200, ES (s82 NIA 2002; negative NRM] Albania [2018] UKUT 335 and R (MN) v SSHD [2018] EWHC 3268.

The decision made in the successful DC case now gives room for rationality challenges against National Referral Mechanism decisions, even if there has not been a judicial review beforehand.

The DC judgement recognises that establishing an appellant as a trafficking victim can remain relevant to issues outlined in article eight, which gives the example of mental health or medical needs becoming apparent as a direct consequence of experiencing trauma.

Firstly, the Upper Tribunal reviewed the Court of Appeal's decision in the case of MS (Pakistan). Lord Justice Flaux had in this instance ruled that the Upper Tribunal had made an incorrect move in redetermining for itself whether the appellant had been trafficked, when it had failed to establish beforehand that the decision of the Competent Authority was irrational or perverse. Recognising that there was uncertainty as a result of this decision, the Upper Tribunal in the case of DC clarified that Lord Justice Flaux was specifically referring to the ground of appeal that the decision was not in accordance with the law.

In DC, the Upper Tribunal proceeded to acknowledge the scope for challenging the rationality of a National Referral Mechanism decision in an immigration appeal against a removal judgement, even where a judicial review of the NRM decision had not occurred.

The Upper Tribunal held the view: "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”.

Furthermore, the Upper Tribunal accepted that even where there was no risk on return on asylum article three grounds: "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 eight rights.”

The Upper Tribunal then confirmed that it was open for the Secretary of State for the Home Department to then revisit the decision, looking to rectify any errors of law.

The Upper Tribunal went on to observe that an irrational decision made on trafficking should have no weight in an immigration appeal. However, the Upper Tribunal did add that even where a trafficking decision is deemed "impeccable", it is possible for a tribunal to reach a different conclusion. 'Conclusive grounds' decisions were reached on the balance of probabilities, and further to this, the tribunal may have further evidence in the appeal that was not initially put before the Competent Authority for scrutiny.

A positive 'conclusive grounds' decision, the Upper Tribunal added, will strongly favour an asylum article three appeal, although it will not necessarily be determinant.

Referring to the case of AUJ (Bangladesh) the Upper Tribunal looked to give an important clarification. AUJ was a judgement made by the Upper Tribunal Judge Gill who was present on the panel in the DC case. In paragraph 62 of the AUJ case, it was highlight that challenges were limited to 'conclusive grounds' decisions to grounds of irrationality only. However, the Upper Tribunal in DC then noted that this also had to be seen in the light of their analysis in the MS (Pakistan) case, and that there was "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."

In explaining the proper meaning of paragraph 63 in AUJ, the Upper Tribunal in DC observed that even where there is no issue as to risk on return, the fact of being a victim of trafficking may remain relevant to appealing a removal decision.

The Upper Tribunal then gave the hypothetical example of a case where the fact of being trafficked could have lead to physical or psychological harm being inflicted upon the appellant, with consequent medical needs that may need to be addressed by the tribunal as part of an article eight claim.

Referring to the case of ES (Albania), a trafficking victim who did develop medical needs as a result of trafficking trauma, the Upper Tribunal in DC then supported the principle that a 'conclusive grounds' decision was not of primary relevance to the outcome of an asylum appeal being 'plainly correct'. However, it was clarified that notwithstanding the reasoning in the case of ES, there was no distinction to be drawn by the different appeals regimes in MS and ES.

Finally, the Upper Tribunal then looked into the High Court decision made in the case of R (MN). The Upper Tribunal adopted the findings of Justice Farbey, of which the key passages say: "The distinction between the United Kingdom’s obligations under the Council of Europe Convention on Action against Trafficking [ECAT] and its non-refoulement obligations is reflected in the Secretary of State’s policies about the grant of leave to enter or remain.

"The policy of granting discretionary leave to victims of trafficking states that it is intended to provide an additional ground for remaining in the United Kingdom ‘based on…individual circumstances’ where the victim does not qualify for other leave ‘such as asylum or humanitarian protection’. The policy is not a substitute for, or an addition to, the United Kingdom’s non-refoulement obligations.

"The appropriate standard for the assessment of a claim to have been trafficked will depend on the legal issue to which it is relevant. If the issue is whether a person will suffer persecution under the Refugee Convention or ill-treatment prohibited by article three of the European Convention of Human Rights, the lower standard will apply. If the issue is whether a person has the specific rights available to victims of trafficking under ECAT, the standard has been rationally set by the Secretary of State as the balance of probabilities.

"In principle, it is possible that the Secretary of State may reject a trafficking claim on the balance of probabilities but accept the same evidence in an asylum claim on the lower standard."

With all of this taken into account, the final judgement in the case of DC acts as a useful summary of the relevant case-law, and sets a precedent for the key principles that should be adopted when dealing with an interaction between trafficking decisions and immigration appeals.

What the judgement also does is allow for rationality challenges to be made against NRM decisions. It is also now clarified that establishing an appellant as a trafficking victim can be relevant to article eight issues.

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The Parliamentary Review

April 06 2020

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