Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01783/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3rd November 2016
On 8th November 2016

Before

UPPER TRIBUNAL JUDGE COKER

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

XTD
(Anonymity direction made)
Respondent

Representation:
For the Appellant: Mr S Walker, Senior Home Office Presenting Officer
For the Respondent: Ms M Knorr, instructed by Lawrence Lupin solicitors

DETERMINATION AND REASONS

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant/parties in this determination identified as XTD. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings
1. First-tier Tribunal judge Grant Hutchinson granted permission to appeal on the grounds:
"It is arguable that the Judge has misdirected himself (a) by erroneously assuming the role of the Competent Authority in coming to the view that the Appellant was trafficked to the UK before a fresh decision was issued by the Competent Authority when it was agreed in a Judicial review by mutual consent in the week before the hearing that a fresh decision would be issued within a period not exceeding 6 months; (b) by failing to take into account the two previous determinations as his starting point according to the Devaseelan principle with particular regard to Article 3 ECHR on the basis that the trafficking issue with which the judge finds to be central to this particular appeal was not a matter for consideration on the earlier occasions when he finds that the Appellant would not face risk of retrafficking on return to Vietnam in any event and (c) in the weight the Judge gives in the proportionality exercise to his finding that the Appellant has been trafficked when there has been no decision made by the Competent Authority."
2. The SSHD also sought permission to appeal on the grounds that the First-tier Tribunal erred in failing to grant an adjournment and erred in its consideration of Article 8 by failing to provide adequate reasons for his conclusions. The SSHD asserts that the First-tier Tribunal failed to identify anything over and above the normal issues of separation that could be considered unduly harsh such as would outweigh the presumption in favour of XTD's deportation.
3. First-tier Tribunal judge Grant-Hutchinson did not refuse permission on either of those grounds and I am satisfied that all grounds can be considered.
Background
4. XTD arrived in the UK on 25th September 2003 aged 15. His asylum claim was refused but he was granted discretionary leave to remain until 10th May 2006, the day before his 18th birthday. Before his application for further leave to remain, made on 9th May 2006, could be considered he was arrested and subsequently convicted and sentenced on 7th February 2007 to 3 years' imprisonment (subsequently reduced on appeal to 2 years) to charges relating to the production of cannabis.
5. On 22nd August 2007 he was served with a decision to make a deportation order. His appeal against that decision was dismissed on 28th November 2007 and a deportation order was signed on 16th April 2008. Representations made were treated as an application to revoke the deportation order and refused. His appeal against that decision, dated 6th November 2012, was dismissed on 22nd February 2013.
6. On 2nd December 2013 XTD made further a further application to revoke the deportation order. After judicial review proceedings a decision was made on 28th April 2014 and it is the appeal against that decision that led to the First-tier Tribunal decision of 14th September 2016 allowing the appeal under the Immigration Rules, on asylum grounds and on human rights grounds.
7. The Competent Authority had made a conclusive grounds decision on 18th June 2014 that XTD was not a victim of trafficking. On 22nd December 2014 the judicial review proceedings were compromised on the basis that a fresh decision would be taken by the Competent Authority within 28 days. A new decision was made on 27th April 2015 and that was subject to judicial review and on 10th December 2015 a consent order was signed for a further fresh decision to be made within 6 months. No further decision has yet been taken by the Competent Authority.
8. First-tier Tribunal judge Dineen refused to adjourn the hearing, on the application of the SSHD that the statutory appeal should await the outcome of the further consideration by the Competent Authority. Judge Dineen heard oral evidence from XTD and XTD's partner and considered reports by Ms Bedoe, Professor Bluth, Ms Delap and a witness statement from Ms Zhang.
9. Although the appeal was heard on 17th December 2015, First-tier Tribunal Judge Dineen's decision was not promulgated until 14th September 2016 but is dated as signed on 6th September 2016. He regretted the delay in the production of the decision which, he says, was due to "pressure of work and the listing of appeals" in the Tribunal. First-tier Tribunal judge Dineen:
(i) Finds XTD to be a consistent and truthful witness and that his evidence of being left alone in Vietnam and being taken by Dinh to be credible;
(ii) Finds that the evidence, in the context of the report by Ms Bedoe points to XTD being trafficked;
(iii) Finds the fact of trafficking is central to XTD's case and circumstances and thus the two previous decisions in his appeals should not be taken as a starting point;
(iv) Finds his deportation does not fulfil the test of being conducive to the public good. Nor was First-tier Tribunal judge Dineen satisfied that he ought to have faced criminal prosecution as he did.
(v) Finds XTD rebuts the presumption under s72 Nationality Immigration and asylum Act 2002 because he has been trafficked and his offence occurred due to his being under the control of others; there is no evidence to suggest he would commit offences in the future and he has not committed any offences since 2007.
(vi) Accepts the evidence of Professor Bluth that XTD would be interrogated and mistreated by the Vietnamese authorities due to his association with an opponent of the Government; his expert evidence being preferred to the evidence relied upon by the respondent which is not expert and is generic.
(vii) Finds XTD would not be at risk of further trafficking if removed.
(viii) Finds it would be unduly harsh for the two British citizen children (born May 2010 and August 2011) to remain in the UK without their father who has been involved over a long period of time in their lives.
10. Before me Mr Walker referred, but did not seek to amend the grounds of appeal, to the lengthy delay by Judge Dineen in the writing and promulgation of the decision. In the absence of a formal request to amend the grounds I have disregarded the delay in reaching my decision.
Adjournment issue
11. Mr Walker submitted that the Competent Authority had not reached a fresh decision because the hearing of the appeal before the First-tier Tribunal proceeded. He submitted that the fact of trafficking was important in terms of the deportation decision and that Judge Dineen had assumed the role of the Competent Authority when it was for the Competent Authority to reach a decision on whether XTD had been trafficked.
12. There was no documentary evidence that the Competent Authority had delayed reaching a decision in accordance with the consent order signed in the High Court but whether that was the case is not actually relevant to the question of whether Judge Dineen should have adjourned the hearing.
13. The grounds relied upon by the SSHD do not take issue with the findings of Judge Dineen that XTD was a victim of trafficking. Judge Dineen considered the evidence before him, in particular the expert evidence, the various witness evidence and oral evidence and reached a conclusion which has not been disputed, namely that XTD was trafficked.
14. MS (Trafficking - Tribunal's powers - Article 4 ECHR) Pakistan [2016] UKUT 00226 (IAC) concluded that "Tribunals may well be better equipped than the Competent Authority to make pertinent findings relating to trafficking" (headnote (vii)). Ms Knorr referred to many individuals not entering the National Referral Mechanism and thus not being subject to a Competent Authority decision on whether or not they had been trafficked. She submitted it was not a pre-requisite to have a Competent Authority decision on whether an individual had been trafficked for the Tribunal to make a finding, on the evidence before it, of whether an individual had in fact been trafficked.
15. Ms Knorr submitted that in the absence of any challenge to the finding of Judge Dineen that XTD was a victim of trafficking, and in the absence of any challenge to the evidence he took into account or reference to evidence that he should have taken into account but did not, then the ground that an adjournment should have been granted simply falls away.
16. I accept that, without a consequence of unfairness or legal error in the findings made, the refusal to grant an adjournment cannot be legitimately impugned. The SSHD does not identify any finding that she disputes and does not dispute the trafficking decision. I am satisfied that the decision by judge Dineen not to grant an adjournment was not an error of law such that the decision should be set aside to be remade.
Devaseelan issue
17. Judge Dineen states:
"73. The fact that trafficking, which is central to the appellant's case and circumstances, was not a matter before the Tribunal on the occasions of the two previous appeal, leads to the conclusion that the decisions in those appeals should not be taken as a starting point on this occasion pursuant to Devaseelan.
74. In the light of my above finding as to trafficking, I am not satisfied that the appellant's deportation fulfils the test of being conducive to the public good. I am not satisfied either that, as a trafficked person, he ought to have faced criminal prosecution as he did."
Mr Walker submits that Judge Dineen should have considered the facts of XTD's case but with Devaseelan as the starting point, even if little weight was placed upon findings made in those earlier decisions because of the subsequent trafficking decision. The ground relied upon asserts that XTD's case remains as it was before the First-tier Tribunal in the earlier decisions and that the fact of trafficking is not central to the appeal, particularly in the light of the finding that XTD would not be at risk of being re-trafficked if removed to Vietnam.
18. The earlier decisions are not models of clarity in their findings. The decision of IJ Parker and lay member Endersby promulgated on 28th November 2007 (the appeal against the decision to deport him) sets out the appellant's case and that the SSHD does not accept the case as put. The decision then goes on to state that they see no reason to depart from the respondent's view of the appellant's case but that even if it were true, which they state they do not accept, the appellant would not be at risk of being persecuted if returned to Vietnam.
19. It is plain that the First-tier Tribunal in 2007 did not approach the appellant's evidence as evidence of a victim of trafficking and thus by its very nature, evidence of a vulnerable individual. Although Judge Dineen could have perhaps expressed his view better, it is clear that his reference to the centrality of the trafficking issue to the appellant's case and circumstances is that without him having been trafficked he would not have been prosecuted and would thus not be subject to deportation. The finding by Judge Dineen in [74] makes the point (unchallenged by the SSHD) that his deportation was not conducive to the public good and that he was not satisfied that XTD should have faced criminal proceedings.
20. It is worthy of note that at the time of his conviction and 2007 appeal, the Trafficking Convention was not ratified; it did not enter into force until 1 April 2009.
21. The findings in the 2007 decision, such as they are, are related to risk on return. There is little or no assessment of XTD's claim other than recitation and rejection on the basis that it is 'vague'. Whilst the findings, such as they are, should have been considered by the Judge Dineen, it is of little doubt but that he would have placed very little weight upon them given they were reached in the context of a lack of appreciation of the vulnerability of XTD as a victim of trafficking. The 2013 First-tier Tribunal decision does not consider Article 3; asylum was not pleaded.
22. Judge Dineen found in no uncertain terms that XTD is a witness of truth. He considers the expert report and the background material before him in reaching his conclusions. He takes account of the harassment of XTD. The SSHD does not take issue with these findings, the weight placed upon the expert's report or the conclusions reached. That XTD was not longer at risk of being trafficked was a finding open to the judge on the facts as they presented themselves and which formed no part of the assessment of risk on return. Even had the judge considered the 2007 and 2013 decisions, their content would not have been of much assistance to him given the context in which they were reached.
23. Although the judge ought to have taken the earlier decisions as a starting point, the weight to be attached to them because the appellant was a victim of trafficking and should, at the least, have been treated as a vulnerable witness renders any weight to be placed upon them very unlikely to have made any difference.
Article 8
24. The SSHD asserts that the First-tier Tribunal Judge Dineen erred in his consideration of Article 8 having
'failed to give adequate reasons for his conclusion. It Is asserted that family disruption is a known and accepted consequence of deportation resulting from foreign national's criminal behaviour, the FTTJ has not identified anything over and above the normal issues of separation that could be considered an unduly harsh outcome that would d outweigh the presumption in favour of the appellant's removal to his own country either alone or if the family chooses with his wife and children'
This ground was not expanded upon in submissions before me.
25. Judge Dineen considered the correct Rule and properly considered whether it would be unduly harsh for the children to live in Vietnam; he found it would be unduly harsh for the two children, who are British Citizens for them to go to Vietnam even if accompanied by their parents. There has been no identification by the respondent of any error of law in that finding.
26. The judge considers and takes account of the lengthy absence, the prejudice to the spouse's business and that his absence would cover significant parts of their development. The reasons given, albeit sparse, when considered in the context of the findings reached by the judge overall, that it would be unduly harsh for the children to be separated from their father, were findings open to him.
27. There is no error of law in the finding that removal would be disproportionate.
Other matters
28. The respondent does not dispute the reference in paragraph 80 by the First-tier Tribunal that XTD's right to claim asylum is not precluded by s72, because he has been trafficked and his offence occurred due to his being under the control of others. The SSHD does not dispute the finding that the presumption that he constitutes a danger to the community is rebutted.
29. The SSHD does not dispute the finding that the judge was not satisfied he ought to have faced criminal prosecution as he did. Nor does he dispute the finding that the judge is not satisfied that his deportation fulfils the test of being conducive to the public good. Save in both instances she relies upon her assertion that an adjournment should have been granted.
30. The SSHD does not draw attention to any error in the finding by the judge that XTD is a victim of trafficking.
31. The SSHD does not assert there is an error of law in the finding at [102] that the judge takes
"into account the general principle contained in 117B(i) that the maintenance of immigration control is in the public interest. I also take into account that, as noted above, because of my finding that the appellant has been trafficked, his deportation should not be classified as conducive to the public good. I am therefore satisfied that Section 117B(i) does not require the appellant's removal."
Conclusion
The making of the decision of the First-tier Tribunal did not involve the making of a material error on a point of law.
I do not set aside the decision. The decision of the First-tier Tribunal allowing the appeal under the Immigration Rules, on asylum grounds and on human rights grounds stands.

Date 7th November 2016

Upper Tribunal Judge Coker