AA/00570/2016

• Status of case: Unreported
• Hearing date: 16 Mar 2017
• Promulgation date: 29 Mar 2017
• Publication date: 22 Mar 2022
• Last updated on: 22 Mar 2022

The decision

IAC-AH-VP/DH-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00570/2016


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 16 March 2017
On 29 March 2017



Before

DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN

Between


FKO
(ANONYMITY DIRECTION MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:
For the Appellant: Ms K. Tobin, Counsel instructed by Polpitiya & Co. Solicitors
For the Respondent: Mr. P. Nath, Home Office Presenting Officer


DECISION AND REASONS

1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge A. J. M. Baldwin, promulgated on 21 October 2016, in which he refused the Appellant’s appeal against the Respondent’s decision to refuse to grant asylum.

2. I make an anonymity direction, following on from that made in the First-tier Tribunal.

3. Permission to appeal was granted as follows:

“The grounds rely upon the CG decision of HD (Trafficked Women) Nigeria CG [2016] UKUT 454 (IAC). The decision was put on the UT web-site as a CG decision on 17 October 2016 and not, as the Grounds assert on 21 October 2016. Although this decision was promulgated after the hearing on 11 October 2016, it was published before the promulgation of the decision on 21 October 2016. It replaced the CG decision of PO (Nigeria) which the judge relied upon. The judge’s failure to apply the decision in HD was, in itself, was an error of law even though the judge was not, perhaps, at fault given it post-dated the hearing. The Judge’s error was arguably material. Given the Judge’s findings, in particular that the appellant was at risk in her home area and had no family support, it is arguably that, had the Judge considered HD, he might have concluded that internal relocation was not an option.”

4. The Appellant attended the hearing. I heard submissions from both representatives following which I reserved my decision.

Submissions

5. Ms Tobin relied on the grounds of appeal. She submitted that the findings in the CG case of HD pointed to there being a risk on return to the Appellant due to her enhanced vulnerability. She referred to the Appellant’s low level of education. At [31] the judge found that she had helped her mother hawking produce. She had claimed not to be very literate [31]. There was a risk on return as she did not have the support of family members. The previous CG case of PO had relied on the availability of shelters for women in her position, but following HD it was not enough to say that an appellant could seek the protection of a shelter. This offered only short-term, not long-term, protection. I was referred to paragraphs [141] and [146] of HD.

6. Paragraphs [148] to [153] of HD consider those trafficked for domestic servitude, as the Appellant had been. It was submitted that this was not considered by the FTT. I was referred to paragraph [168] which considers the factors which had led to an individual being trafficked in the first place.

7. It was submitted that the Appellant had few educational qualifications and that she would face stigma as a returnee. The assumption would be that she had been a prostitute, especially given that she was now a single mother with a baby. She would face destitution and poverty given her lack of family support, and given her origins as she came from poverty. The case of HD went significantly further than PO and pointed to more risk factors to the Appellant. It was not enough to say that there would be a resettlement package available.

8. Mr. Nath submitted that the error was not material. He referred to the refusal of the grant of permission to appeal from the First-tier Tribunal, [4]. The judge had conducted a detailed assessment of the Appellant’s particular and individual characteristics. I was referred to [30] of the decision. The judge had taken into account that the Appellant had been trafficked before. He had considered resettlement. Even though he had not applied the relevant country guidance and had applied the Appellant’s facts to the old country guidance case, the result would have been the same had he considered her facts with reference to HD.

9. In response Ms Tobin submitted that she was not taking issue with the submission that the judge had considered the Appellant’s characteristics, but he had assessed them with reference to the wrong country guidance case. In particular, with reference to [30], she referred to the fact that the new CG case dealt with the shortcomings of the reintegration package, which was in direct contradiction with the judge’s findings. The Appellant had a child out of wedlock and no family support. Any shelter provided would be for the first two to six weeks only and was a short-term solution.

10. In conclusion she submitted that the error was material, and a careful factual assessment would lead to a different decision under HD.

Error of Law Decision

11. I find that the decision involves the making of an error of law for failure to have regard to the correct country guidance case.

12. As set out in the grant of permission, in between the date of hearing and the date of promulgation of the decision, the case of HD was published on the UT website. This states in the headnote:

“The guidance set out in PO (trafficked women) Nigeria [2009] UKAIT 00046 at paragraphs 191-192 should no longer be followed.”

13. I have carefully considered whether this error is material, with reference to paragraphs [137] onwards, in particular those paragraphs to which I was referred by Ms Tobin. I have carefully considered the judge’s findings in paragraph [30], which have not been challenged, but which must be assessed with reference to the case of HD.

14. HD found in relation to those who had been trafficked for domestic servitude that “Generally, there is no real risk of re trafficking by reason alone of having been previously trafficked. But there may be a risk of trafficking by reason of her vulnerability.” [149].

15. At [152] it states: “If a victim exploited for the purpose of domestic servitude is unable or for good reason unwilling to return to her family she may face a real risk of vulnerability to abuse as to which see below for the impact upon her in terms of a protection claim.”

16. At [167] the UT found that “The factors that indicate vulnerability to abuse apply whether or not the debt has been paid and whether or not the young woman was previously trafficked for the purpose of sexual exploitation or for the purpose of domestic servitude. These factors assume that a willing family has not taken her back into the family household and there is no respectable reason for the victim of trafficking not to return to her family.”

17. The judge found in paragraph [29] that the Appellant’s family “may not necessarily welcome her back into their home – particularly with a child the father of whom has not even been mentioned to the Tribunal.” He repeats in [30] that the Appellant will not have family close by when setting up a new life in Nigeria, and later in the same paragraph that she will have “no family support”.

18. The judge finds in [30] is that there are a number of women’s hostels in Abuja and the Appellant had adduced no evidence to show that she would not be admitted to them if she had an infant. HD found at [141]:

“Any protection offered by NAPTIP is very short term and does not address the significant risks of retrafficking to those who are vulnerable to abuse. The mode of trafficking in Nigeria is not predicated upon abduction; those targeted are targeted because of their particular vulnerability and such vulnerability is not, on the basis of the evidence before us, reduced following a six week stay in a NAPTIP shelter. The Nigerian government has not made any discernible efforts to decrease the demand for commercial sex. Whilst this demand remains, combined with the continued prolific provision of trafficking in human beings in Nigeria, there exists a real risk of internal or transnational trafficking of those identified as vulnerable.”

19. At [147] HD states: “So the real question is what is the risk faced by a returned victim of trafficking on leaving the shelter or if she is not admitted to the shelter for whatever reason.” I find that even if the Appellant gains admission to a hostel in Abuja, this would only be for a short period and would not “address the significant risks of retrafficking to those who are vulnerable to abuse”. I find that no reliance should be placed on the fact that there are shelters available, given that even if the Appellant is admitted to one, HD found that this would not address the risk of retrafficking.

20. The judge also relies in paragraph [30] on the re-integration package which will be provided to the Appellant which is “sufficient to set up a new life as long as one is prepared to settle for low-rent accommodation”. No reliance is placed on the re-integration package in HD as being a factor which will reduce the vulnerability of someone being returned who has been trafficked in the past. HD did not find that this would make a difference such that it removed the risk of being trafficked again, and/or reduced an appellant’s vulnerability.

21. The judge states later in [30] that the Appellant “could expect to receive financial and other help in Abuja”. In relation to this financial help, I have addressed above that HD placed no weight on this. In relation to “other help”, if this is the shelters, then as set out above, following HD they do not provide any long-term support and therefore do not remove the risk of re-trafficking to the vulnerable.

22. The next finding of relevance in paragraph [30] is that the Appellant has attained a low level of education, and her previous experience of work in Nigeria was helping her mother to hawk produce. This lack of education, experience and skills, coupled with the fact that she will be returning with a dependent child, is likely to lead to destitution and poverty, especially given that she will not have any family support. Further, she comes from a background of poverty which was one of the factors which would have led to her being trafficked in the first place. As stated above, HD places no reliance on the re-integration package being able to lift someone from this destitution or poverty.

23. I find that the judge has placed particular weight on the availability of shelters and the re-integration package which, following the case of HD, have not been found to reduce risk on return, or to reduce the vulnerability of women who have been trafficked on return to Nigeria. Taking this into account, I find that the error of law is material.

Remaking

24. Paragraph [4] of the headnote to HD states:

“Whether a woman returning to Nigeria having previously been trafficked to the United Kingdom faces on return a real risk of being trafficked afresh will require a detailed assessment of her particular and individual characteristics. Factors that will indicate an enhanced risk of being trafficked include, but are not limited to:

a.               The absence of a supportive family willing to take her back into the family unit;

b.               Visible or discernible characteristics of vulnerability, such as having no social support network to assist her, no or little education or vocational skills, mental health conditions, which may well have been caused by experiences of abuse when originally trafficked, material and financial deprivation such as to mean that she will be living in poverty or in conditions of destitution;

c.                The fact that a woman was previously trafficked is likely to mean that she was then identified by the traffickers as someone disclosing characteristics of vulnerability such as to give rise to a real risk of being trafficked. On returning to Nigeria, it is probable that those characteristics of vulnerability will be enhanced further in the absence of factors that suggest otherwise.”

25. Paragraph [6] states:

“There will be little risk of being trafficked if received into a NAPTIP shelter or a shelter provided by an NGO for the time that she is there, but that support is likely to be temporary, possibly for just a few weeks, and there will need to be a careful assessment of the position of the woman when she leaves the shelter.”

26. Paragraph [7] states:

“For a woman who does face a real risk of being trafficked if she returns to her home area, the question of whether internal relocation will be available as a safe and reasonable alternative that will not be unduly harsh will require a detailed assessment of her particular circumstances. For a woman who discloses the characteristics of vulnerability described above that are indicative of a real risk of being trafficked, internal relocation is unlikely to be a viable alternative.”

27. The list of indicators which show that a woman returning to Nigeria after having being trafficked is at enhanced real risk of being trafficked are set out in [168] as follows:
“Some or many of the original indicators that resulted in her being identified and trafficked originally;
Rejection by her family;
The fact of being psychologically damaged subsequent to the serious harm she has sustained during the period she was trafficked. This may render her less able to find work or access employment and result in her being at enhanced risk of destitution;
Being stigmatised and ostracised; the assumption being within Nigeria that those victims of trafficking who return to Nigeria have been working as prostitutes even if she had been trafficked for the purpose of domestic servitude;
Having been subjected to sexual abuse/exploitation during domestic servitude;
Remaining subjected to the spiritual and psychological pressures of any oath taken;
Destitution;
Poverty;
Subjected to pressure from her family which is likely to be rural and in poverty, to provide an income from sexual exploitation.”

28. I have assessed the findings in paragraphs [29] and [30] of the First-tier Tribunal decision against case of Country Guidance case of HD. The Appellant came from a background of poverty which is one of the factors which led to her being trafficked. She will not have any family support on return. It is likely that she will be stigmatised and ostracised as it will be assumed that she has been working as a prostitute, even though she had been trafficked for the purpose of domestic servitude. I find that this is especially the case for the Appellant as she will be returning as a single mother with a young baby.

29. The judge found that she had been “treated very badly” by the couple she came to help, and there are criminal proceedings ongoing. While she has not claimed to have been sexually or physically abused, she has been subjected to exploitation during her domestic servitude. She will be destitute, and in poverty, given her lack of education and skills, and especially given that she has a dependent child.

30. I find that the Appellant has a number of the characteristics of vulnerability set out in HD. I find that any help she would obtain from a shelter would be short-term and would not address her vulnerabilities in the long term. I find that she would be at real risk of being trafficked afresh. She would not have the support of her family, and could not return to her home area. I find that, following HD, the Appellant would not be able to internally relocate, given her characteristics of vulnerability. I find that relocation, especially given that she has a dependent child, would be unduly harsh.


Notice of Decision

31. The decision of the First-tier Tribunal involves the making of a material error of law and I set the decision aside.

32. I remake the decision, allowing the Appellant’s appeal on asylum grounds.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.



Signed Date 25 March 2017

Deputy Upper Tribunal Judge Chamberlain