Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03831/2014

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke-on-Trent
Decision & Reasons Promulgated
On 26th July 2016
On 15th September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

Miss A O A
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss A Faryl (Counsel)
For the Respondent: Mr C Bates (HOPO)

DECISION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge M Davies, promulgated on 10th February 2016, following a hearing at Manchester Piccadilly on 2nd February 2016. In the determination, the judge allowed the appeal to the extent that it is returned to the Respondent to enable the Competent Authority to follow its own guidance given in paragraph 1.7.6 in relation to victims of trafficking. The Respondent applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.

The Appellant
2. The Appellant is a female, a citizen of Nigeria, who was born on 28th June 1986. She appealed the decision of the Respondent on 14th May 2014 refusing to grant her asylum under paragraph 336 of HC 395 and on 14th May 2014 a decision to remove her from the United Kingdom as an illegal entrant.
The Appellant's Claim
3. The Appellant claims to have arrived in the UK on 28th December 2014. She gave birth to one child using a false form of identification in 2010. On 5th July 2011, as a result of her referral to the Northampton Social Services by a midwife, due to domestic violence from her partner, the Appellant came to the attention of the United Kingdom authorities. She then claimed asylum on 26th July 2011.
4. An appeal by the Appellant had initially been allowed by an Immigration Judge, whereupon it was successfully appealed by the Respondent Secretary of State and the Upper Tribunal Judge remitted the appeal back to the First-tier Tribunal to be determined de novo.
The Judge's Findings
5. In the remitted appeal hearing before Judge Davies, the main issue under consideration was the fact that, in coming to the conclusion that the Appellant had not actually been a trafficked person, the Home Office had to implement and follow its own document of 115 pages entitled "Victims of Human Trafficking - Competent Authority Guidance", in which there was a section under paragraph 17.6 entitled "evidence gathering", which the Appellant alleged had not been properly followed, such that the decision could not have been a lawful decision by the relevant Competent Authority.
6. The judge held that, "it does appear at the very least her evidence has been consistent albeit there may be relevant issues to consider which do indeed damage her credibility" (at paragraphs 17) in relation to the evidence of the Appellant given at the hearing. The judge observed that both in her testimony and in the evidence that she gave to the Respondent, the Appellant,
"Has provided the Respondent with names and addresses of all those she claims were involved in her trafficking and being held against her will in the United Kingdom. Indeed she makes clear that one of those persons was a social worker" (paragraph 17).
7. The judge also went on to note that the Appellant having made her claim for asylum on 26th July 2011, it was not until 14th May 2014, that the Respondent issued a decision to refuse asylum. There was therefore a substantial period of time for the Competent Authority to follow its own guidance set out at paragraph 17.6 of the guidance. The judge then went on to set out the relevant section in the guidance at paragraph 17.6, that deals with how every effort must be made to secure all available information that could prove useful in establishing if the person in question has been trafficked.
8. The judge went on to conclude that, "after considering the evidence I conclude that the Competent Authority have not followed the guidance given in paragraph 17.6. They have not made every effort to secure all available information that could provide useful in establishing if there are conclusive grounds" (paragraph 19).
9. In the circumstances, the judge decided that the appeal should be allowed to the limited extent that it is returned back to the Respondent to enable the Competent Authority to follow its own guidance given in paragraph 17.6.
The Grounds of Application
10. The grounds of application state that in allowing the appeal to a limited extent that it is submitted back to the Secretary of State, the judge erred in law because the decision of the Competent Authority is not an immigration decision under Section 82(2) of the Nationality and Immigration Act 2002. The decision of the Competent Authority is not the decision that can be challenged before a judge of the First-tier Tribunal. If the Appellant wished to challenge the findings of the competent authority the correct course of action would have been to seek judicial review of that decision. Accordingly, the judge erred in law in paragraphs 19 and 20 in concluding that the appeal could simply be allowed to the limited extent, without determining the entire appeal substantively in the Tribunal.
11. On 26th February 2016, permission to appeal was given by the Tribunal.
Submissions
12. At the hearing before me Mr Bates, appearing as Senior Home Office Presenting Officer before me, submitted that the decision of the Competent Authority was not an appealable decision under Section 82 of the 2002 Act. The Presenting Officer at the hearing did make this clear. Accordingly, the judge had to simply determine substantively the entire appeal in the Tribunal or the Appellant should have challenged it by way of judicial review. It was not open to the judge to remit the matter back to the Secretary of State.
13. For her part, Miss Faryl handed up a copy of MS (Trafficking - Tribunal's Powers - Article 4 ECHR) [2016] UKUT 00226 where she directed my attention to headnote (v). This reads that, "Tribunals are also empowered to review a trafficking decision on the ground that it has been reached in breach of the Secretary of State's policy guidance". I was also directed to look at paragraph 38 in the body of the decision, where it is made clear that the failure by the Secretary of State to apply her own policies is an error of law.
14. In reply, Mr Bates submitted that the judge had jurisdiction and in the case of MS [2016] UKUT 00226, the Court of Appeal does set out Section 82 of the 2002 Act (see paragraph 34) and this makes it clear that the decision of the Competent Authority is not an appealable decision.
Error of Law
15. I am satisfied that the making of the decision by the judge did involve the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. This is because the judge did not have jurisdiction to allow the appeal to the limited extent of requiring the Secretary of State to apply her own guidance again, this being essentially a function of a court of superior jurisdiction exercising judicial review powers, but not the function of a First-tier Tribunal, because the decision of the Competent Authority was not a "appealable" decision. Miss Faryl's reference to headnote 5 and to paragraph 38 of the judgment in MS [2016] UKUT 00226 does not help because the statement at headnote 5 makes it only too clear that "Tribunals are also empowered to review a trafficking decision", but that is by way of hearing the appeal. The statement at paragraph 38 of the decision recognises that if a policy has not been applied by the Respondent then the only remedy is by way of judicial review. It is a different matter altogether that the court, faced with a decision can take the decision into account by the Competent Authority, whether it be a positive decision in favour of the Appellant or a negative decision against the Appellant, in coming to its own decision. Paragraph 39 of the judgment makes it clear that the Tribunal may take into account other recognised public law misdemeanours such as inclusion of immaterial considerations, leaving material evidence or considerations out of account, procedural unfairness and bad faith. That requires a decision on substantive grounds. Accordingly, the appropriate course of action is for this appeal to be remitted back to the First-tier Tribunal to be determined substantively de novo as had been directed by the Upper Tribunal previously.

Notice of Decision
The decision of the First-tier Tribunal involved the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. I set aside the decision of the original judge. I remake the decision as follows. This appeal is remitted back to the First-tier Tribunal under Practice Statement 7.2 to be determined by a judge other than Judge M Davies for a substantive hearing of the issues.
Anonymity
An anonymity order is made.
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 him or any member of their 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

Deputy Upper Tribunal Judge Juss 13th September 2016