Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: aa/13632/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3rd October 2016
On 25th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

ms A K
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D O'Callaghan (Counsel)
For the Respondent: Mr S Whitwell (HOPO)

DECISION AND REASONS

1. This is an appeal against the determination of First-tier Tribunal Judge B A Morris, promulgated on 27th June 2016, following a hearing at Taylor House on 1st June 2016. In the determination, the judge dismissed the appeal of the Appellant, whereupon the Appellant 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 Albania, who was born on 22nd March 1987. She appealed against the decision of the Respondent dated 9th December 2015, refusing her application for asylum on the basis that she had been a victim of human trafficking.
The Appellant's Claim
3. The Appellant' claim is that she met a man by the name of Besim in June 2010. When her father discovered this relationship he beat her and threatened her. The Appellant was scared to return home. So she went to a house with Besim whereupon she was raped by two men and locked in a room for two days and told that she would have to work for Besim as a prostitute. She was later taken to Greece and handed over to another group of men in Athens. She eventually asked a client, an Albanian man, to help her and he arranged fake identification and travelled to the United Kingdom via Germany. When she was unable to enter the United Kingdom on 25th February 2012, she returned back to Greece and then to Albania where she stayed thereafter three months in Tirana. She raised no problems at this time. She did not contact her immediate family. She did not go to the police. Her aunt then helped her to travel from Albania to Greece by car and then from Greece to the United Kingdom by lorry. She arrived in the UK on 25th May 2012 and claimed asylum on 26th February 2013.
4. It is a feature of this case that on 26th November 2015, a National Referral mechanism decision concluded in her favour that she was a victim of human trafficking, and had been subject to slavery or servitude and forced or compulsory labour. It is also a feature of this case that the Respondent accepted that she was a victim of trafficking (as the judge noted at paragraph 8 of the determination). However, the Respondent took the view that the Appellant would not be at risk of re-trafficking upon return to Albania.
The Judge's Findings
5. The judge observed that there was an NHS letter dated 31st July 2015 (at page 18 of the Appellant's bundle) where it was accepted that the Appellant appeared to be suffering from PTSD and that her protective factors were her son and her boyfriend (paragraph 30). However, the judge concluded that there were no particular vulnerabilities to the Appellant (paragraph 30). The judge also held that on the Appellant's own evidence she returned to Albania after she was refused admission to the United Kingdom in February 2012 and therefore there could be no risk in Albania for her (paragraph 34). The Appellant also did not make a claim in Germany where she had been removed to from the United Kingdom (paragraph 36). The appeal was dismissed.
Grounds of Application
6. The grounds of application state that the judge failed to treat the Appellant's accepted story as a trafficked person as a starting point when considering the country guidance case. The judge also acted unreasonably in failing to accept that the Appellant had mental health problems. Furthermore the judge erred in taking the view that there were no particular vulnerabilities to the Appellant. There was also the risk of re-trafficking in line with the country guidance case.
7. On 1st August 2016, permission to appeal was granted on the basis that the judge had made an inadequate assessment of the risk of re-trafficking, and the judge failed also to make a finding in respect of the Appellant's evidence that she lived with her aunt, after return from the United Kingdom, in hiding, and that her aunt was unable to accommodate her now. There were also significant obstacles to the Appellant's integration bearing in mind accepted facts.
8. A Rule 24 response was entered on 9th September 2016 by the Respondent Secretary of State.
The Hearing
9. At the hearing before me on 3rd October 2016, Mr O'Callaghan, appearing on behalf of the Appellant, submitted that the judge had failed to apply the country guidance case of TD (Trafficked woman) [2006] UKUT 00092. Furthermore, there was stark evidence in this case that the Appellant, when providing sexual services as a prostitute subject to slavery and servitude as a trafficked person in Albania, was locked up, on the first floor of a casino, where her sexual acts were video recorded (see question 80 of the asylum interview). When the Appellant was asked during her interview how she knew that she was being video recorded she had replied, "they used to tell us to wear different clothes and then we would pose in front of the camera and we were told to do different movements and positions and things like that" (see question 81 of the refusal of the interview). Mr O'Callaghan submitted that these facts alone demonstrated that the Appellant would be identifiable by virtue of a film that would be in existence somewhere whereupon she could be identified as a person who had worked providing sexual services. She had also said in her interview that amongst the people who came to her for forced sex were policemen in the area which meant that she could not turn to the state authorities for protection. The failure of the judge to make a decision on this important piece of evidence was an error of law.
10. Second, the uncontested evidence had been that the Appellant was unmarried, so that when a child was born in those circumstances, it was wrong for the judge to have concluded that, "there is no sufficient evidence before me to show that this child was not born out of wedlock" (paragraph 26). The judge's reasoning was that, "his father is named on the birth certificate and his nationality is given as Albanian. Such information is confirmation by the Appellant herself" (paragraph 26). This did not follow at all in that even a child born out of wedlock could have the father's name put on the birth certificate, as had been the case here, particularly as there was no evidence at all that the Appellant had married anyone, but the evidence had been quite to the contrary.
11. Third, there was a risk of re-trafficking, because the Appellant was just over 29 years of age, and although not in her early 20s, had been video recorded, and this was an exacerbating factor that exceptionally would draw attention to her and place her at very particular risk.
12. Finally, the Appellant could not seek the assistance of state authorities because the uncontested evidence before the judge was that, she knew that the police were clients in Albania because they would come in their uniforms. She said that there were other high profile people such as MPs. She saw them on the TV but she is scared of naming them" (paragraph 18). The judge did not make a finding on the implications of such a state of affairs with respect to the risk that the Appellant was being placed under as a result of these matters.
13. In short, Mr O'Callaghan submitted that if these facts were uncontested then all that needed to be done was to apply the country guidance case of TD (Trafficked women) [2006] UKUT 00092 and the Appellant would succeed on the lower level of proof. This is because it was accepted, and there was no dispute, that the Appellant had been trafficked, and indeed the Secretary of State had granted the Appellant discretionary leave to remain on that basis. Mr O'Callaghan asked me to make a finding of an error of law and to proceed to allow the appeal on the basis that the evidence was as it stood, and could not be bettered any more than was presently the case.
14. For his part, Mr Whitwell submitted that he would rely upon his Rule 24 response. He also stated that in TD the medical evidence was much stronger. At this stage, Mr O'Callaghan interjected politely to say that this was not true because what was unique about this case was that there was an NHS report confirming that the Appellant suffered from PTSD and had in all probability been a victim of trafficking in the report given on 17th May 2016. The judge, submitted Mr O'Callaghan, had made express reference to this at paragraph 30 of the determination. Therefore, if continued Mr O'Callaghan, one compares this with the case of TD itself (at paragraph 152), one can see that there the facts were that whilst it was accepted that, "having been through the shelters once before" one would stand to benefit from the grant of asylum, then the facts here were no less compelling, given what the Appellant herself had been through.
15. Mr Whitwell resumed his submissions and continued by saying that he would have to accept that the Appellant was not married, as she had maintained consistently, there being no evidence to the contrary, and that the child was born out of wedlock. However, Mr Whitwell went on to say that the judge was aware about the Appellant's vulnerabilities and properly took this into account, before applying the country cases (at paragraph 27) and proceeding to dismiss the appeal. The judge was entitled to do this.
16. In reply, Mr O'Callaghan urged me to make a finding of an error of law and to proceed to remake the decision. He submitted that the case law does not say that one has to be at the extreme end of PTSD, and this being so, the report of 31st July 2015 (at page 18 of the bundle of 17th May 2016) is good enough, given that the NHS had accepted that the Appellant suffered from PTSD. The Appellant had progressed considerably now, after being subject to treatment for well over a year and attending some thirteen sessions of expressed therapy. When the Appellant had started she had severe PTSD and this alone would have led to her asylum claim being allowed on the basis of the application of TD, so that although her condition was now moderate, it was severe at the time. My attention was drawn to paragraphs 105 to 112 of TD. Mr O'Callaghan submitted that at paragraph 109 TD made it clear that if one was less resilient one was more likely to be vulnerable and the Appellant's condition had been precisely this.
Error of Law
17. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(1) of TCEA 2007) such I should set aside the decision and remake the decision. My decisions are as follows. First, it is accepted that the Appellant had been a victim of human trafficking.
18. Second, there are exceptional circumstances to her condition, not least of which is the fact that when providing sexual services, she was video taped, in circumstances where prominent people like MPs and police officers were known to be frequenting the premises for her services. On the lower standard, the Appellant would be identifiable and at clear risk of re-trafficking. Mr O'Callaghan submitted that before this Tribunal the judge's approach below had been to "tiptoe around TD", so as to do everything possible to avoid making a decision in favour of the Appellant.
19. Third, it is certainly the case that the Appellant had a favourable NHS report dated 31st July 2015. In this report, the Barnet, Enfield and Haringey NHS Trust records the circumstances of the Appellant before undertaking a psychological assessment on 7th July 2015, and even at this stage, it is record that, "you have described your sleep being disturbed, however, that this is much better now since the triage team prescribed you mirtazapine". The report goes on to say that, "you confirmed experiencing disturbing images/memories from past traumatic experiences about two or three times a week", and refers to "disturbing dreams two or three times a week" before stating that, "you shared with the triage team that you have also experience hearing the voice of your ex-boyfriend at night, which you find distressing." It is in these circumstances that the report of 31st July 2015 then concludes that, "you appeared to be suffering from post-traumatic stress disorder (PTSD)". It is entirely wrong to conclude from this that the reference to "appear" is designed in some way to demonstrate a lack of certainty on the part of the medical team that the Appellant was suffering from PTSD, as the judge appears to apply at paragraph 30 of the determination, especially given that the Appellant was already on prescribed doses of mirtazapine.
20. In short, the NHS report of 31st July 2015 confirmed the Appellant's condition and prescribed for her a "treatment plan" which was to consist of phased treatment over a period of time, which the Appellant has availed herself. Accordingly, the judge has fallen into error for the reasons set out above.

Remaking the Decision
21. I have remade the decision on the basis of the findings of the regional judge, the evidence before her, and the submissions that I have head today. I am allowing this appeal for the following reasons. Given the matters set out above the application of TD (Trafficked women) [2006] UKUT 00092 leads, in my conclusion, to the Appellant succeeding in her asylum appeal. That case makes it clear that Albanian society is governed by a strict code of honour, which not only means that trafficked women would have very considerable difficulty in reintegrating into their home areas on return, but also will affect their ability to relocate internally. Those who have children outside marriage are particularly vulnerable, as is made clear by this country guidance case. The Appellant has a child born out of wedlock, and she has a father who strongly disapproves of her association with her former boyfriend, and who has rejected her, such that she is unable now to find any solace with her own family, and not even with the aunt with whom she had previously stayed.
22. Second, this country guidance case makes it clear that for a proportion of the victims of trafficking, their situations may mean that they are especially vulnerable to re-trafficking, or be forced to other exploitative situations. The reference to these situations include the presence of an illegitimate child, the area of origin (which in this case is clearly relevant), the Appellant's age, which does not exclude her from the risk of re-trafficking, the lack of any support network that is available to her. The Appellant's social status and level of education is also not one that places her in a positive situation. On the lower standard, accordingly, this appeal is allowed.
Notice of Decision
The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This appeal is allowed.
An anonymity direction 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 Dated

Deputy Upper Tribunal Judge Juss 22nd October 2016

TO THE RESPONDENT
FEE AWARD

No fee is paid or payable and therefore there can be no fee award.

Signed Dated

Deputy Upper Tribunal Judge Juss 22nd October 2016