Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11172/2015

THE IMMIGRATION ACTS

Heard at Newport
Decision & Reasons Promulgated
On 10 January 2017
On 20 January 2017

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

hd
(ANONYMITY DIRECTION made)

Respondent

Representation:

For the Appellant: Mr I Richards, Senior Home Office Presenting Officer
For the Respondent: Mr C McWatters instructed by Migrant Legal Project

DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or court directs otherwise, no report of these proceedings shall directly or indirectly identify the respondent. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to contempt of court proceedings.
Introduction
2. This is an appeal by the Secretary of State against a decision of the First-tier Tribunal (Judge Archer) allowing the appeal of HD (hereafter the "claimant") against a decision to remove her to Vietnam on the basis that to do so would breach the Refugee Convention.
3. The claimant, who is a citizen of Vietnam, was born on 4 April 1987. She arrived in the United Kingdom sometime at the beginning of 2012 having, she claimed, left Vietnam in August/September 2011 travelling to, and staying in, Germany and France before travelling to the UK by lorry.
4. On 18 August 2014, she claimed asylum. The basis of her claim was twofold. First, she claimed that she had been trafficked and was at risk of being re-trafficked if returned to Vietnam. Secondly, she claimed to be at risk because of her Catholic faith.
5. On 24 July 2015, the Secretary of State refused the claimant's claim for asylum, humanitarian protection and under the ECHR. The Secretary of State accepted that the claimant had been the victim of trafficking. However, she did not accept that there was a real risk that the claimant would be re-trafficked from Vietnam. In any event, there was a 'sufficiency of protection' available to the claimant in Vietnam and, further, she could safely and reasonably internally relocate in Vietnam. Finally, the Secretary of State did not accept that there was a real risk of persecution because of the claimant's Catholic faith.
6. The claimant appealed to the First-tier Tribunal. Following a hearing, Judge Archer allowed the claimant's appeal on asylum grounds.
The Appeal to the Upper Tribunal
7. The Secretary of State sought permission to appeal to the Upper Tribunal on a number of grounds. First, the judge failed to make a finding whether the claimant, as a victim of trafficking, was a member of a Particular Social Group (PSG) in Vietnam. Secondly, the judge failed to give adequate reasons for allowing the appeal and had relied upon a number of cases not relevant to the claimant's claim.
8. On 9 August 2016, the First-tier Tribunal (Judge Pooler) granted the Secretary of State permission to appeal.
The Submissions
9. At the outset of the hearing, Mr Richards, who represented the Secretary of State, indicated that he did not rely upon the first ground, namely that the judge had failed to consider whether the claimant (as a trafficked woman) formed part of a PSG in Vietnam. He accepted that the respondent in para 12 of the refusal letter had accepted that a trafficked woman from Vietnam was a member of a PSG.
10. Nevertheless, he submitted, relying upon the remaining grounds, that the judge had given inadequate reasons for concluding that the appellant was at real risk of being re-trafficked by simply adopting the views of the experts. Further, the three cases relied upon by the judge, namely EK (Article 4 ECHR) Tanzania [2013] UKUT 00313 (IAC), AZ (Trafficked women) Thailand CG [2010] UKUT 118 (IAC) and TD and AD (Trafficked women) CG [2016] UKUT 00092 (IAC) were irrelevant to his decision. EK was concerned with Art 4 of the ECHR and not the Refugee Convention, and the remaining two cases concerned trafficked women from Thailand and Albania and not Vietnam.
11. In his reply, Mr Richards submitted that the judge had not engaged with the Secretary of State's reasons in the refusal letter for concluding that there was a 'sufficiency of protection' and that the claimant could safely and reasonably internally relocate within Vietnam.
12. On behalf of the claimant, Mr McWatters submitted that the judge had been entitled to adopt the views of the experts and find that the appellant was likely to be re-trafficked. Further, he submitted that the judge had effectively come to the conclusion that there was 'no sufficiency of protection' and that internal relocation was not possible.
Discussion
13. The judge's reasoning is at paras 18-20 of his determination as follows:
"18. The appellant is a victim of trafficking. The NSPCC report at A54-A69 of the appellant's bundle states that the appellant is highly vulnerable and at risk of re-trafficking. The risk of exploitation is high (A66). The country report from Dr Tran Thi Lan Anh dated 12 May 2016 confirms that the appellant has been diagnosed with PTSD and concludes that the appellant and [EV] would face many significant challenges and difficulties if returned to Vietnam. She would not have essential papers such as a birth certificate or an ID card. She does not have a Ho Khau booklet. Without those she would be considered as an illegal immigrant and might be forced to do exploitative work. The appellant and [EV] are at high risk of being the target of traffickers as the appellant is in a vulnerable state, has mental capacity and health issues and has no family protection. [EV] would face severe and possibly life threatening risks because of poor medical facilities, lack of treatment and the cost of heart disease treatment. The cost of such treatment is prohibitively expensive and very clearly the appellant cannot afford the heart treatment or her own treatment.
19. I find both reports to be credible. I have also considered the psychiatric report from Dr Alison Battersby dated 5 March 2016. The appellant has now disclosed sexual abuse during her trafficking. She is frightened of being made to sex work. Those initial disclosures include repeated sexual assault and shouting at men to stay away from her because she has AIDS. She has a history of perpetual victimisation and is very vulnerable to anyone who shows her the slightest hint of affection as she still craves someone to love. That makes her highly susceptible to people who are adept at exploiting this weakness and she may be subject to further victimisation. I find the psychiatric report to be credible.
20. I have carefully considered all of the country information. The appellant is likely to be vulnerable to retrafficking or other forms of abuse if returned to Vietnam. There is no evidence of adequate facilities or government action in Vietnam such as to provide adequate state protection to this highly vulnerable appellant. On that basis, her asylum claim must succeed. I have considered EK (Article 4 ECHR) Tanzania [2013] UKUT 00313, AZ (Trafficked women) Thailand CG [2010] UKUT 118 (IAC) and TD and AD (Trafficked women) CG [2016] UKUT 00092 (IAC)".
The reference to "EV" is to the claimant's daughter who was born in the UK on 5 April 2014.
14. Whilst the judge's reasoning is brief, he was in my judgment entitled to accept the views set out in the three reports from the NSPCC, Dr Tran Thi Lan Anh and Dr Battersby and for the reasons he gave find that there was a real risk of the claimant being re-trafficked. The judge clearly had in mind the background of the appellant's claim which he set out at para 13 of his judgment as follows:
"13. The appellant states that her parents lived in a poor rural area of Vietnam and were Catholics. As a result of persecution by the communist government a due to not being able to afford looking after her they sent the appellant to [HN] ('the foster mother'). The appellant was 15-16 and was forced to work really hard for no pay; from 4am to 10pm. She left the house when she was 22-23 but went back to visit. She was duped into being trafficked to Germany for the purpose of domestic servitude. She was taken to France and then to the UK where she was able to escape in March 2012. She then worked in a nail shop in Swansea and became pregnant. [EV] was born on 5 April 2014, her father is a UK citizen. [EV] was born with a serious heart defect and other illnesses. The family court became involved and [EV] was placed with the appellant under a supervision order. [EV] requires significant medical evidence".
15. On the basis of the claimant's circumstances including her clear vulnerability and previous history, the judge's finding that she was at real risk of being re-trafficked was properly open to him. It cannot be said that that finding was perverse or irrational.
16. Whilst Mr Richards pointed to the judge's reference to the cases of EK, AZ and TD and AD at the end of para 20 of the judgment, all that the judge says is that he has "considered" those cases. Nothing in those cases is inconsistent with the judge's finding in relation to the claimant made in para 20 that she is likely to be re-trafficked. I see no material error in his reference to them having been considered.
17. Where, however, the judge has erred in law is that he has failed to consider, if the claimant is at risk of being re-trafficked, first whether there would be a 'sufficiency of protection' for her in Vietnam and secondly, whether she could safely and reasonably internally relocate. I do not accept Mr McWatters' submission that the judge has effectively decided those issues in paras 18-20. He makes no reference to the issues of sufficiency of protection and internal relocation which were relied upon by the Secretary of State and are dealt with in detail in the refusal letter at paras 37-49 and 50-55 respectively. It was not sufficient for the judge to allow the appellant's appeal simply on the basis that there was a real risk of being re-trafficked without considering these issues and determining them in the claimant's favour.
Decision and Disposal
18. For those reasons, the judge materially erred in law in allowing the claimant's appeal. The decision is set aside and must be re-made.
19. The judge's finding that the claimant is at real risk of re-trafficking stands and is preserved. However, the decision in respect of the asylum ground must be re-made and findings made in respect of 'sufficiency of protection' and 'internal relocation'.
20. In addition, the judge made no finding in relation to the appellant's claim based upon her Catholic religion. That aspect of the claim also must be considered in any re-making of the decision.
21. I also note that the judge, because he allowed the appeal on asylum grounds, did not make a decision in respect of Art 8 of the ECHR. The decision in respect of Art 8 must, therefore, also be made in re-making the decision.
22. Having regard to the nature and extent of fact-finding, both in relation to the asylum claim and also in relation to Art 8, applying para 7.2 of the Senior President's Practice Statement, it is appropriate to remit the appeal to the First-tier Tribunal in order to re-make the decision to the extent I have already indicated.
23. The appeal may be listed before any Judge of the First-tier Tribunal.

Signed

A Grubb
Judge of the Upper Tribunal