Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04702/2012

THE IMMIGRATION ACTS

Heard at Bradford
Determination Promulgated
On 4th June 2013

Before

UPPER TRIBUNAL JUDGE D E TAYLOR

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

Miss Gladys Eyagbon + two dependants

Respondent

Representation:

For the Secretary of State: Mr S Spence, HOPO
For the Claimant: Ms C Warren of Counsel, instructed by Howells Solicitors

DETERMINATION AND REASONS

1. This is the Secretary of State’s appeal against the decision of Judge Henderson made following a hearing at Bradford on 29th October 2012.
Background
2. The Claimant is a citizen of Nigeria born on 21st May 1986. She arrived in the UK on a date unknown and claimed asylum on 30th May 2008. Her claim was refused and the subsequent appeal was dismissed on 24th June 2010 by Immigration Judge Caswell, who did not accept that she was a victim of trafficking. The Claimant’s representatives made further submissions on 5th April 2012, supported by expert reports and were accepted as a fresh claim for asylum which was again refused on 25th April 2012. It was this refusal which was the subject of the appeal before Judge Henderson.
3. The Claimant’s case is that she was trafficked for the purpose of prostitution to Italy before she escaped and came to the UK. She claimed a fear of return to Nigeria on the basis that she would be at risk from those who trafficked her to Europe.
4. Judge Henderson heard oral evidence from the Claimant and from Ms N Dawkins, former leader of the Poppy Project who had written an expert report on her behalf. She also had a country expert report from Bisi Olateru-Olagbegi, a medical report and further letters of support.
5. Judge Henderson said that she was aware that her starting point in the appeal was the findings made by the previous Immigration Judge. However, she said that she had the advantage in this appeal of further reports, not before the previous judge, and she relied on the evidence from Ms Dawkins, who was a leading expert on the issue of trafficking, in reaching the conclusion that the Claimant was a trafficking victim as claimed and would be at risk of re-trafficking or reprisal attacks on return.
The Grounds of Application
6. The Secretary of State sought permission to appeal on the grounds that the judge had failed to give adequate reasons for not adopting the previous judge’s findings and had not considered that the Secretary of State’s assessment of the claim was made after an interview by a trained officer and in line with the asylum process guidance. The approach endorsed in Y v SSHD [2012] EWHC 1075 (Admin) had been adopted in the asylum process guidance and applied in this case.
7. In the alternative it was submitted that even if the Claimant was trafficked this was over four years ago and she does not require the protection of the Convention. She has been out of the hands of the traffickers for a number of years and there would be no breach of her Article 3 rights.
8. Permission to appeal was granted by Judge Cruthers on 27th November 2012 for the reasons stated in the grounds.
9. The Claimant served a Rule 24 response. With respect to the argument that the Secretary of State’s assessment of the claim was made after an interview by a trained officer, any decision made under the national referral mechanism was entirely separate from any decision to be made under the 1951 Convention. The decision under the NRM was not the subject of the appeal to the Tribunal. The case of Y v SSHD relied upon by the Secretary of State was concerned purely with consideration of cases under the NRM and not relevant to the appeal at the First-tier Tribunal.
10. The asylum claim had been rejected on the basis of the negative credibility findings of Immigration Judge Caswell, but Judge Henderson had given full consideration to the Secretary of State’s case and provided extremely detailed reasons for finding differently, a course plainly available to her. In SSHD v AF [2008] EWCA Civ 117 the Court of Appeal considered its previous judgments in respect of the Devaseelan guidelines which were very flexible. The respective Tribunal was required to decide each new case on its merits.
11. In relation to the risk on return, the judge had made detailed findings in relation to the specific risk which she would face, the insufficiency of State protection and had considered whether internal relocation was reasonable in her and her children’s circumstances.
12. Before the hearing Counsel produced a detailed skeleton argument relating to the distinction to be made between the UK’s obligations under the Trafficking Convention and those under the Refugee Convention and repeated the points made in the response.
Submissions
13. Mr Spence adopted his grounds but accepted that the supplementary decision letter written for the judicial review proceedings lodged in respect of the national referral mechanism decision was not before the judge, because it was not the Respondent’s practice to serve such letters at First-tier Tribunal hearings. He could not argue that the judge had erred in not considering evidence which was not before her. He confined his submissions to arguing that the judge had not given adequate reasons for departing from the findings of the first judge and relied on his other grounds.
14. Ms Warren submitted that Immigration Judge Henderson had followed the guidance in Devaseelan properly and that the conclusions which she reached were open to her to make on the evidence before her.
Findings and Conclusions
15. These grounds are a mere disagreement with the decision and disclose no arguable error of law.
16. As Mr Spence accepted, the points made in the grounds in respect of the national referral mechanism letter have no merit since the letter was not before the judge and in any event is entirely separate from the decision which was before her.
17. With regard to the Devaseelan issue the judge made it abundantly clear that Judge Caswell’s findings were her starting point. She set out those findings and the evidence upon which they were based. She then said that she had the advantage of considering further expert reports, in particular from an expert who gave live oral evidence, which she considered in great detail. There were some matters upon which she agreed with Judge Caswell, for example in relation to the circumstances in which the Appellant left Italy, and the account of what had happened to her sister, and she agreed with Judge Caswell that the Claimant had attempted to exaggerate the issue of risk on return by seeking to establish evidence of harm against her family. However, she gave full and detailed reasons for reaching the opposite conclusion on the central issue of trafficking on the basis of evidence which was before her and which had not been before the previous judge.
18. With respect to the risk on return, again this is a mere disagreement with the decision. The judge had the benefit of an expert report upon which she was entitled to rely. She accepted that the Claimant owed a debt to her traffickers and properly applied the relevant country guidance case. Having accepted that the Claimant was trafficked by a group of persons operating together to whom she owed a large amount of money, she was entitled to find that there would not be adequate protection for her in Nigeria. Finally, she considered the issue of internal relocation and having regard to the Claimant’s particular circumstances, concluded that it would not be reasonable.
19. Judge Henderson’s approach was unimpeachable.

Decision
20. There is no error of law in this decision which shall stand. The Claimant succeeds in her appeal against the decision of the Secretary of State.

Signed Date

Upper Tribunal Judge Taylor