IA/17807/2010

• Status of case: Unreported
• Hearing date: 16 Sep 2013
• Promulgation date: 9 Dec 2013
• Publication date: 24 Nov 2022
• Last updated on: 24 Nov 2022

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/17807/2010


THE IMMIGRATION ACTS


Heard at Field House
Determination Promulgated
On 16th September 2013
On 9th December 2013



Before

UPPER TRIBUNAL JUDGE REEDS


Between

I R
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: Miss C. Robinson, Counsel instructed on behalf of LTP Solicitors
For the Respondent: Mr T. Melvin , Senior Home Office Presenting Officer


DETERMINATION AND REASONS
1. The Appellant, a national of Sri Lanka born on 3rd August 1984, appeals with the permission against the decision of Immigration Judge Pygott dismissing the Appellant’s case that a return to Sri Lanka would put the UK in breach of its obligations under the Refugee Convention, Articles 3, 4 and 8 of the ECHR and the Council of Europe Convention on Action against Trafficking in Human Beings (“COE”).
2. This appeal is subject to an anonymity direction that no report or other publication of these proceedings or any part or parts of them shall name or directly or indirectly identify the claimant. This direction has been made as the Tribunal is satisfied that the issues involve consideration of medical/psychiatric evidence. Reference to the claimant may be by use of his initials but not by name. Failure by any person, body or institution whether corporate or incorporate (for the avoidance of doubt to include either party to this appeal) to comply with this direction may lead to a contempt of Court. This direction shall continue in force until the Upper Tribunal (IAC) or an appropriate Court lifts or varies it.
Procedural History
3. There is a considerable history in relation to this appeal. On 29th April 2008 the Appellant was granted a visa to the UK as a domestic worker in a Kuwaiti diplomatic household which was valid until 29th April 2009. The Appellant entered the United Kingdom on 4th May 2008. On 24th June 2008 the Appellant registered with Kalayaan (a charity which gives advice and support to migrants who enter the UK on a domestic worker visa) having contacted them after leaving her employment because of alleged abuse. She was later referred by Kalayaan to the UK Human Trafficking Centre (UKHTC) to the Home Office pilot project on labour trafficking, Operation Tolerance, which lasted from May to September 2008. On 22nd August 2008 UKBA wrote to the Appellant acknowledging there were reasonable grounds for believing that she had been trafficked and giving her 30 days’ temporary admission which would allow her time to recover and during which the police and other UK enforcement authorities may continue with their investigations and the UKBA may want to talk to her about her immigration situation. If there were reasons why she wished to remain in the UK or should not return to Sri Lanka she was told that she should contact the UKBA as soon as possible, for example, she may wish to apply for asylum or humanitarian protection.
4. On 21st November 2008, the Appellant applied for variation of her leave to remain outside the Immigration Rules and to switch to a domestic worker in a non-diplomatic household in circumstances where she had been the victim of trafficking in her previous employment. That application was rejected on the grounds that it was invalid due to the incorrect form being used. The application was resubmitted on 20th April 2009 and on 11th May 2009, the Appellant submitted confirmation of employment with a contract with Chantille Sankaran from 20th April 2009 until 30th April 2010 as a domestic worker.
5. It is recorded that the Appellant’s application for variation of leave to remain outside the Immigration Rules was put on the basis that the Council of Europe Convention on Action against Trafficking in Human Beings (CAAT) had been ratified and was due to be signed by the end of the year (2008) and as part of the UK’s commitment to the protection of victims of trafficking and therefore she should, exceptionally, be allowed to switch visas to enable her to continue working in the UK.
6. On 6th October 2009 UKBA wrote to the Appellant’s solicitors noting that it was claimed that she was a victim of human trafficking and asked for an authorisation which would allow the UKBA to approach the relevant competent authorities. An extension of time was sought on the grounds that the Appellant had already been referred under the pilot and had been recognised as a potential victim of trafficking. On 2nd November 2009 UKBA replied stating that the Appellant’s previous application as a trafficked victim was part of the pilot and that further consideration as a victim of human trafficking, a signed declaration was required which would give permission to the UKBA to pass information to the other competent authorities.
7. On 7th January 2010 the Respondent made a trafficking conclusive decision consideration (the first trafficking decision) in which it is recorded that the Appellant gave her consent to being entered on the National Referral Mechanism Process (NRM) on 5th October 2009 and for her trafficking claim to be considered by the competent authority. It appears that prior to the introduction of the NRM for potential victims of human trafficking, and as part of the trafficking pilot, the Appellant was identified as a potential victim of trafficking on 24th June 2008. However, that was the extent of the pilot and no further action was taken on her case. It was now concluded that, on the balance of probabilities, the Appellant had not been trafficked. The reason given in summary was that the agency through which she had come to the UK was a sister agency of the agency through which she had gone to Kuwait from Sri Lanka. The journey had been arranged with her consent and knowledge and that she knew her country of destination and the reason for coming to the UK which is as a domestic worker for a diplomat. Her account of contacting Kokilla within less than three months of coming to the UK was not credible. Over a year and a half had passed since the positive reasonable grounds decision in 2008 during which time she has taken up employment elsewhere, which demonstrated that she had overcome the difficulties she had encountered for the period of three months in 2008. Furthermore the subsequent employment had been taken up when her leave to remain in the UK had expired thus she was liable to be removed.
8. On 14th January 2010, the Respondent refused the Appellant’s leave application following consideration of her rights under Article 8 of the ECHR. It was not accepted that she has family life in the UK and it was understood that she had family outside in Sri Lanka. As regards private life, whilst it was accepted that she had been in employment with a Kuwaiti diplomat, it had been concluded that she was not a victim of human trafficking.
9. Thereafter the Appellant’s solicitors filed an application for judicial review of the Respondent’s decision refusing to recognise the Appellant as a victim of trafficking and an out of time Notice of Appeal was filed against the Respondent’s decision refusing to vary leave to remain and asking for an extension of time on 8th April 2010. On 25th May 2010 the Appellant’s solicitors sought an extension of time in order to obtain reports from Kalayaan, Anti-Slavery International and a psychologist as a result of which the hearing was postponed to 28th July. Further evidence came from Kalayaan by way of a report from Camilla Brown on 26th May 2010 followed by an addendum on 10th June. Other evidence included a report of Dr Neil Egnal (psychologist), a report from the Anti-Slavery International (from Clara Skrivankova) and the appeal hearing was postponed pending the outcome of the judicial review application and was listed for mention on 27th September.
10. On 30th July 2010 the Respondent wrote to the Appellant’s solicitors withdrawing the first trafficking decision of 7th January 2010 and the Appellant was invited for interview and a new decision. Thus on 17th August the Appellant was interviewed and on 3rd September a further report from Kalayaan was produced.
11. On 27th September 2010 a mention hearing took place where further directions were given relating to expert evidence and for the Respondent to make a fresh decision. The appeal was then again listed for further directions on 15th November.
12. In the interim a further report from Dr Egnal was produced and on 27th October 2010 the Appellant’s solicitors wrote to the Tribunal giving reasons why Dr Egnal’s report should not be disclosed. It was noted that issues previously had been whether the Appellant was a victim of trafficking and whether it would be a breach of her Article 8 to seek to remove her in violation of positive obligations under the CAAT, however the Appellant had recently made further disclosures of sexual abuse both in Sri Lanka and in the United Kingdom. It was said that the late disclosure of sexual violence or exploitation was said to be a common feature and known indicator of trafficking and it was only when in secure Salvation Army accommodation that she began to display behaviour and that her mental health had deteriorated. She had since been hospitalised on more than one occasion because of concerns about her mental health. Thus further reports were sought in respect of the Appellant’s appeal.
13. On 15th November 2010 a direction hearing took place and further directions were given for the Appellant to serve further evidence.
14. On 17th December 2010 the Respondent made a substituted trafficking conclusive decision consideration (the second trafficking decision) based on the Appellant’s trafficking interview and various documents up to and including Kalayaan’s report of 3rd September 2010 but excluding evidence relating to the claim of sexual abuse. It was accepted that the Appellant came to the UK on 4th May 2008 and left her employment on 17th June 2008 and that she had been a victim of trafficking for a short period. However, by the time she was officially entered in the NRM on 5th October 2009 she had been free from her traffickers for a significant period and there is no evidence that she has not fully recovered from her experiences. She had been in touch with Kalayaan between June 2008 and June 2010. Her current difficulties had arisen from her failed illegal working ventures rather than as a result of her experiences in May/June 2008. She did not qualify for a resident permit under Article 14 of CAAT and the Palermo Protocol ratified by Britain on 17th December 2008 and brought into force on 1st April 2009. Such is not necessary owing to her personal situation for the purpose of her cooperation in an investigation or criminal proceedings.
15. Thus the appeal was listed before Immigration Judge Pygott on 21st January 2011. At the appeal hearing, the Immigration Judge did not hear oral evidence from the Appellant as a result of her mental health assessment as indicated in the reports of Dr Egnal and Dr Abas and their evidence that she was not fit to give evidence before the Tribunal (paragraph 12 of the decision).
16. In a determination promulgated on 15th March 2011, the Immigration Judge dismissed the appeal under the Immigration Rules, the appeal on asylum grounds, humanitarian protection grounds and upon human rights grounds (Articles 3, 4 and 8 of the ECHR). In that decision he accepted that the Appellant was trafficked into the UK on 4th May for the purpose of domestic servitude and that she had been subjected to sexual abuse at the hands of the Appellant’s Kuwaiti employer in the UK (paragraphs 85 and 87 of the determination). The Appellant’s family background, her sexual abuse by her cousin in Sri Lanka, her abusive marriage and events in Sri Lanka prior to her leaving for Kuwait for the first time in 2005 and events on her return to Sri Lanka which led her to return to Kuwait were also accepted by the judge (paragraph 90). It was further accepted that by the beginning of 2010, the Appellant was homeless and in desperate need of somewhere to live. It was not accepted by the Immigration Judge that she had been subjected to forced labour in Kuwait between 2005 and 2007 nor that she was trafficked from Sri Lanka to Kuwait either in 2005 or in 2008.
17. Thus the Immigration Judge dismissed the claim that the Appellant would be at risk of re-trafficking in Sri Lanka because it was concluded that the Appellant was not trafficked from Sri Lanka but from Kuwait. The reasons given are set out at paragraph 95 of the determination. Thus the judge found that the Appellant was not a member of a particular social group and therefore that she would not be at risk of persecutory treatment within the meaning of the Refugee Convention. He therefore dismissed her claim for asylum.
18. For the same reasons, the Immigration Judge concluded that the Appellant was not at a real risk of being re-trafficked in Sri Lanka and therefore dismissed her appeal under humanitarian protection, Article 3 and Article 4 of the ECHR (paragraph 100, paragraph 101 and paragraph 102 of the determination).
19. In respect of Article 8 of the ECHR, the Immigration Judge considered the medical evidence that had been produced and reached a finding that her mental health would be at risk of deterioration on return (paragraph 104). When assessing the issue of proportionality, the Immigration Judge concluded that Article 16 of the COE did not apply where it was proposed to return the Appellant to their own country which is not the country from which they were trafficked. Furthermore in relation to Article 12 of the Convention, the Immigration Judge stated that “I do not apprehend that the obligation to provide assistance for recovery is open-ended.” Thus it was concluded that the return of the Appellant would be proportionate.
20. An application was made to appeal that decision and on 31st March 2011 Immigration Judge Bird refused permission. The grounds for permission were renewed before the Upper Tribunal. The Grounds of Appeal were based on the risk of re-trafficking on the basis that if there had been a real risk of re-trafficking then a return to Sri Lanka would be prohibited under the Refugee Convention, Articles 3 and 4 of the ECHR and in addition Article 8 of the ECHR that such a return would be disproportionate under Article 8(2). The basis for this was that the Immigration Judge had failed to provide reasons for the decision or in the alternative had misunderstood the evidence relating to this issue. In particular it was stated that the Immigration Judge had misunderstood the evidence of the expert, Ms Skrivankova (of the Anti-Slavery International) and further addendum report from that expert had been produced at the time of the permission grounds to demonstrate that the approach of the Immigration Judge to that expert evidence was based on a misunderstanding. The second ground related to Article 8 of the ECHR and the judge’s assessment of the trafficking Convention and in particular Articles 14 and 16 of the COE. The Immigration Judge erred in law by concluding that Article 16 of the COE had no application to the Appellant’s case because she was not being returned to a country where she was trafficked from. It was asserted on behalf of the Appellant that Article 16 is not restricted in its application to a return to a country where the trafficking experience had begun rather than it being a victim-centred obligation aimed at ensuring that a return to another state would be with due regard to the dignity of the victim and aimed at avoiding re-victimisation. The Immigration Judge thus failed to consider whether the UK could return the Appellant to Sri Lanka in compliance of Article 16 which is relevant to the proportionality assessment under Article 8 of the ECHR. It was also asserted that the Immigration Judge did not consider the evidence of Ms Skrivankova relating to the minimum measures required by the UK to comply with Article 16.
21. In respect of Article 12 of the COE, the Immigration Judge considered those obligations at paragraph 107 of the determination. However the forms of support had not been provided by the Respondent, and that was a breach of Article 12. The failure to provide the Appellant with support under Article 12 of the COE was a significant factor in the proportionality assessment under Article 8 and that had not been dealt with by the Immigration Judge when considering the proportionality of the Appellant’s Article 8 rights.
22. The third ground relates to the Appellant’s mental health and her deterioration upon return to Sri Lanka. Whilst the Immigration Judge accepted that her mental health would be at risk of deterioration on return to Sri Lanka, there had been no detailed analysis of this and in particular the report of Dr Abas and the failure to make a finding on the extent of the deterioration was a material matter and had a bearing on the assessment of proportionality of interference. Lastly, a submission had been made before the judge that the Appellant should be allowed to remain in the UK until the resolution of her judicial review proceedings. The Immigration Judge did not deal with this issue.
23. On 12th July 2011 Senior Immigration Judge Spencer gave permission to appeal. The grounds for granting permission are as follows:-
“Among the excerpts of background material relied upon by the Appellant is that from the US State Department Report on human trafficking which states that the group most susceptible to human trafficking is the 1.1 million unskilled Sri Lankans abroad (my underlining), most of whom are female domestic workers. The Immigration Judge took full account of the various reports before him and the background material. In my view he was entitled to reach the conclusion that there was not a real risk of re-trafficking for the Appellant in Sri Lanka and the Grounds of Appeal seek to dress up as an error of law a disagreement with the Immigration Judge’s conclusions on the facts of the appeal. I do take the view, however that given the Immigration Judge accepted the evidence that the Appellant’s return to Sri Lanka would put her mental health at risk of deterioration and that access to counselling and trauma-focused psychological therapy was less certain than access to drugs, it is arguable that the Immigration Judge made an error of law in his interpretation of the application of the Council of Europe Convention on Action against Trafficking in Human Beings (CAAT) and, a point I take in favour of the Appellant as Robinson obvious, arguably the Immigration Judge did not undertake an analysis of the risk of suicide against the criteria set out in J v SSHD [2005] EWCA Civ 629.”
24. Thus the appeal was listed before the Upper Tribunal to determine those issues as set out in the grant of permission by Senior Immigration Judge Spencer.
The Error of Law Hearing
25. At that hearing the Appellant was represented by Miss Sabic (Counsel who had appeared at the court below and had drafted the grounds for permission to appeal) and the Respondent was represented by Mr Diwnycz (Home Office Presenting Officer). It is right to record that following discussions between the representatives, Mr Diwnycz conceded that the determination of the Immigration Judge did disclose an error of law in two ways as set out in the decision of Senior Immigration Judge Spencer. It is confirmed by Miss Sabic on behalf of the Appellant, that both parties agreed that there was an error of law in the determination of the Immigration Judge as set out in the permission granted by Senior Immigration Judge Spencer. However, she submitted that it would not be possible to conclude the hearing as her instructing solicitors had made an application for an adjournment for updated medical evidence that was relevant to the two issues upon which permission had been granted. In that respect she provided documentary evidence from the two experts who had been asked to provide further evidence, namely Dr Abas (who previously provided expert evidence relating to the Appellant’s psychiatric health) and Professor Good who was to prepare a report relating to the provision of medical treatment in Sri Lanka. The evidence would be available after 21st May and it was submitted that that evidence was necessary in order to deal with the two grounds as identified. It was further raised by Miss Sabic that in this case it would be suitable for a transfer order to be made so that the appeal could be heard at Field House. The Appellant, although she is now resident within the Bradford area, would not be attending court to give evidence in the light of the medical reports and thus the case should be heard at Field House.
26. It was therefore common ground between the parties that the Immigration Judge made a material error of law and that the Tribunal must substitute a fresh decision to allow or to dismiss the appeal.
27. I have referred to the history of the appeal and the grounds upon which permission was granted which, it was agreed, formed the basis of the error of law in the determination. The first was an error of law made in respect of Article 8 of the ECHR and the interpretation of the application of the Council of Europe Convention on Action against Trafficking in Human Beings (CAAT). The second error related to the point made in the grant of permission by Senior Immigration Judge Spencer that the Immigration Judge did not undertake an analysis of the risk of suicide against the criteria set out in J v SSHD [2005] EWCA Civ 629.
28. Following the directions that were given, a Case Management Review hearing took place on 12th September 2012. Counsel previously instructed in the case was not able to attend. It was clear that there were continuing issues concerning the remit of the hearing as a decision had not been taken on the grounds raised in respect of the issue of risk f trafficking and for further evidence to be produced. Thus the case was listed for Counsel in the case to attend and file a skeleton argument concerning the issues that required to be resolved.
29. The adjourned Case Management hearing took place in March and Miss Sabic produced a skeleton argument. It was not possible to conclude the hearing due to lack of court time. On 24th June 2013 Miss Robinson, now instructed on behalf of the Appellant, attended the Case Management Review hearing. At that hearing it was accepted by the Presenting Officer that the grounds should not be restricted as to those in the grant of permission bearing in mind the concession made on behalf of the Secretary of State, particularly where the factual issues and those of law were so intertwined. In those circumstances it was common ground that the Tribunal would consider at the resumed hearing the issue of trafficking under the Refugee Convention in addition to the other issues identified. Further directions were given as to the filing and service of additional documentation which was to be produced on behalf of the Appellant.
The Hearing before the Upper Tribunal
30. A bundle of documents was produced on behalf of the Appellant. It was divided helpfully between Tab A to Tab G. Tab A included the First-tier Tribunal’s determination, Tab B statements on behalf of the Appellant including an updated statement dated 12th August 2013. Tab C related to the medical and accommodation documents including updated evidence from the West Community Mental Health Team, GP’s report and documentation in respect of the Appellant’s accommodation. Tab D consisted of the expert evidence; psychiatric and psychological reports. The reports of Dr Melanie Abas dated 12th January 2011, 1st July 2012 and an updating statement of 16th August 2013 were set out at Tab D. It also included the two reports of Dr Egnal dated 30th June 2010 and 18th October 2010. Tab E consisted of expert country evidence. The first report of Professor Anthony Good dated 15th December 2010 and a second report dated 20th August 2013. Tab F related to trafficking issues and the evidence of Kalayaan in the form of reports dated 26th May and 10th June 2010 and a letter from the Southall Black Sisters (dated 29th July 2010) and the first and second reports of the Anti-Slavery International dated 25th July 2010 and 4th January 2011 respectively. There was also an updated report from the Poppy Project dated 8th August 2013. At Tab G objective evidence and other material was exhibited including documentation from the Human Rights Commission, the US State Department Report dealing with trafficking in persons; Sri Lanka, the Asian Human Rights Commission Report in relation to Sri Lanka dated 15th July 2013, a report entitled “Human Trafficking through a Sri Lankan Prospective” dated 21st July 2013 and the Council of Europe Convention on Action against Trafficking in Human Beings and its Explanatory Report dated 16th May 2005. In addition Miss Robinson provided a skeleton argument that had attached to it additional documentation upon which she relied. Those documents are as follows.
Detailed chronology,
Report by Kalayaan dated 10th September 2013,
Report by the Poppy Project dated 8th August 2013 on headed paper,
Report by Kalayaan dated 3rd September 2010 (not in the Appellant’s bundle),
Report by IOM entitled “The Causes and Consequences of Re-Trafficking: evidence” from the IOM Human Trafficking Database (2010),
US Department of State 2012 Country Reports on Human Rights Practices Sri Lanka dated 19th April 2013, and
EK (Article 4 ECHR: Anti-Trafficking Convention) Tanzania [2013] UKUT 00313 (IAC).
Furthermore at the hearing she produced further case authorities upon which she placed reliance. They were SB (PSG - Protection Regulations - Reg 6) (Moldova) CG [2008] UKAIT 0002, Okonkwo (legacy/Hakemi; health claim) [2013] UKUT 00401 (IAC) and Akhalu (health claim; ECHR Article 8) [2013] UKUT 400 (IAC).
31. The Respondent relied upon the documentation in the Respondent’s bundle which included within it the letter dated 7th July 2010 in which the Respondent wrote to the Appellant’s solicitors withdrawing the first trafficking decision and inviting the Appellant for an interview and for further evidence to be submitted. The Respondent relied upon the decision of 17th December 2010 which was the substituted trafficking decision. In addition Mr Melvin, appearing on behalf of the Secretary of State submitted the Respondent’s written submissions and annexed to that were excerpts from the COIR Report for Sri Lanka dated 7th March 2012 dealing with mental health provision paragraphs 23.21 to 23.30 and humanitarian issues and internally displaced persons paragraphs 24.01 to 24.03. At the previous hearing the Respondent had also produced a copy of the Guidance for Competent Authorities and Directive 2011/36/EU of the European Parliament and of the Council of 5th April 2011.
32. The Appellant did not give oral evidence before the Tribunal. As can be seen from the history of these proceedings, the Appellant did not give evidence before the First-tier Tribunal as a result of medical issues identified in the expert evidence provided as a result of her diagnosis of suffering from a depressive illness and post traumatic stress disorder (see reports of Dr Abas). In those circumstances and in the light of the Joint Presidential Guidance Note No. 2 of 2010 and the Practice Direction relating to “Child, Vulnerable Adult and Sensitive Witnesses” of 30th October 2008, it was common ground between the parties that the Appellant would not be able to provide oral evidence. In those circumstances, I proceeded to hear submissions from each of the parties in accordance with the skeleton arguments that they had produced for the hearing.
The Submissions of the Parties
33. Mr Melvin (Senior Presenting Officer), relied upon the written submissions that he had produced. In addition he made the following oral submissions:-
(i) In respect of the risk of re-trafficking, he submitted that the evidence demonstrated that there was no risk of re-trafficking from Sri Lanka to the UK or any other place. He made reference to the COIS Report March 2012 at paragraph 22.01 and submitted that there was no risk of the Appellant being trafficked from Sri Lanka. On the facts of this appeal, he submitted that it was relevant that she was not trafficked from Sri Lanka in the first place and posed a question as to why this Appellant with her family members, would face a real risk of being trafficked from Sri Lanka if she was not being trafficked in the first place? There was no evidence of any involvement with any gangs involving forced labour or trafficking. She would be returning to her family who are a large family unit and there is no evidence of any risks emanating from the family unit. He submitted that there would be facilities and treatment available to her and that whilst she may be a vulnerable adult and suffering from a depressive illness, there would be medication available for her and also she would have members of her family who would be supportive to her.
(ii) In respect of the evidence of Professor Anthony Good, the Secretary of State took issue with the findings made in that report. Professor Good was last in Sri Lanka in 2010 and has neither met nor communicated with the Appellant. He asserts that people will assume that as the Appellant has been working overseas that she has been ill-treated and very possibly sexually molested and also asserts that it is likely that the familial rape is known by her family members which will add to the social ostracism that the Appellant would experience. Mr Melvin submitted that with respect to Professor Good, it is widely known that many thousands of Sri Lankan women take up posts overseas as domestic workers and as such it was an unsubstantiated assertion that all overseas domestic workers will have been ill-treated/sexually molested. Furthermore there was nothing in the Appellant’s evidence that her general family know that the Appellant was raped by her cousin when she was 12 years old. In respect of the 2013 report, Mr Melvin submitted that he addressed the criticisms raised by the First-tier Tribunal at paragraph 36 of his report, noting that “There is a cultural assumption that women are by nature sexually active and will initiate sexual activity if left unchaperoned in the presence of a man” and at paragraph 43 “Women who have been abroad are invariably suspected of sexual impropriety”. In relation to his earlier (2010) comments of how the family would be aware of the Appellant’s rape by a cousin, aged 12, Professor Good relies on the fact that her ex-husband’s mother would have very publicly spread news of her daughter not being a virgin on the wedding night and therefore asserts that in Sri Lanka everybody knows everyone else’s business and the Appellant will face interrogation from the neighbours and will also be unable to keep secret her need for psychiatric treatment which is itself stigmatised in Sri Lanka and as such people will assume the worst (see paragraph 46). It was submitted that Professor Good has included unsubstantiated generalisations about the Sri Lankan population and especially women and that there is nothing to substantiate his claim that women who work abroad are suspected of sexual impropriety. Mr Melvin also submitted that whilst acknowledging Professor Good as an expert on Sri Lanka, little weight should be placed on his reports to the Appellant’s personal circumstances. He referred to his skeleton argument at paragraph 14 and the country guidance decision of GJ (post-civil war returnees) Sri Lanka [2013] UKUT 319 where the Upper Tribunal panel commented upon Professor Good’s evidence at paragraph 262 and in ST (child asylum seekers) Sri Lanka [2013] UKUT 292 where the President noted, when considering submissions made about Professor Good’s fourth expert report at paragraph 75 “We consider this was a speculation on a somewhat remote possibility”. In the light of those two cases, Mr Melvin invited the Tribunal to note the comments when considering Professor Good’s evidence. Thus he submitted that there was no cogent evidence that this Appellant would be a real risk of re-trafficking if returned to Sri Lanka.
(iii) Mr Melvin moved on to consider the medical evidence. He accepted that the Appellant was in a vulnerable state but nonetheless he submitted there would be treatment and medication available for her. Dr Abas in the report of July 2012 concluded that she suffered from moderate to severe depression, PTSD, personality vulnerabilities, borderline low intelligence, post and moderate suicide risk, required psychiatric assessment and treatment in support for daily functioning. In the latest report (see Tab D page 29) there have been some improvements in provision for psychiatric care in Kandy. The drugs that the Appellant is currently taking are not commonly available other than by private paid prescription. Dr Abas confirmed her earlier reports that the Appellant remains with symptoms of depression and anxiety and is a vulnerable and fragile person. Dr Abas confirms that a comparable standard of care would not be available in Sri Lanka. The objective evidence from the COIR Report annexed to skeleton argument demonstrated that there were some difficulties in medical health provision but in this case the Appellant will be returning to the family home, her parents, sisters and their extended families and thus would have support of her family. There is medical are available not too far away in Kandy and the drugs needed are available albeit at a cost. Whilst the medical care in Sri Lanka would not be ideal, it is accessible and the Appellant has had three years’ professional care as can be seen from the medical reports in the UK whilst pursuing her claim. Mr Melvin then turned to the issue of a real risk of suicide. In this respect he submitted that the report of Dr Abas in July 2012 concluded that the Appellant suffered from moderate to severe depression, PTSD, personality vulnerabilities, borderline low intelligence and posed a moderate suicide risk. In the latest report from Dr Abas she concluded that the Appellant remained with symptoms of depression and anxiety and is a “vulnerable and fragile person”. Dr Egnal in his earlier reports also concluded that she was a vulnerable young woman, had diagnosed PTSD. It is submitted that Dr Egnal’s reports are three years old and whilst they given an insight into her state of mind at the time in October 2010, the up-to-date medical reports are of better value to the Tribunal in assessing the Appellant’s mental health needs if returned to Sri Lanka. Dr Nutt, General Practitioner, confirms the Appellant has been a patient at the Clover Practice since 27th July 2011. He concludes in his report that the Appellant displayed anxiety and stress symptoms despite being on regular medication. He confirmed that there was a definite causal link between her symptoms and her suffering caused through her history of abuse. He confirmed that she was waiting to recommence counselling and take Citalopram for depression and Levothyroxine for hypothyroidism and vitamin D. The report of Dr Hannah Mitchell from the Sheffield Health Social Care has written letters in May to August 2013 (see Tab C pages 51 to 63). In the letter of 5th July 2013 Dr Mitchell noted at paragraph 6 “We determined that the Appellant does not have any ongoing suicide ideation and have arranged for Zainab and Karen Clark to visit her on Monday”. In the final letter Dr Mitchell states the Appellant had expressed the feeling that if she is sent back to Sri Lanka her life would be over and on this basis Dr Mitchell believes that if she is refused asylum this could trigger further self-harm and thoughts of suicide. The doctor also confirmed that the Appellant had not disclosed any specific plans to kill herself during any of the consultations. However she clearly has risk factors in terms of social isolation, history of self-harming, ongoing depression and PTSD symptoms. Thus Mr Melvin submitted that on the evidence before the Tribunal the treating psychiatrist Dr Mitchell said that there was no suicidal ideation. Whilst the medical evidence is that she is very anxious it is not to the extent that it will trigger a real and immediate suicide risk. He reminded the Tribunal of the high threshold set out in the decision of the Court of Appeal in J and that whilst in this Appellant’s case, taking into account the evidence of some instances of self-harm, that the Appellant has not shown evidence of past suicide attempts nor is there sufficient evidence to show, from the recent medical reports that there is a real risk of the Appellant committing suicide in the UK or on return to Sri Lanka. Dr Mitchell confirmed that she has not disclosed any plans to kill herself and whilst there is a risk of self-harm, there is no risk of suicide in this case.
(iv) In respect of Article 8, it was accepted on behalf of the Secretary of State that the Appellant is a vulnerable individual. It was accepted that she had been trafficked for domestic servitude and had spent six weeks in 2008. However not all the evidence is accepted and relying on the trafficking Convention decision that she was trafficked in a six week period but that she has moved on and the problems that she has had have not been as a result of the trafficking and therefore not the responsibility of the UK government. The sexual abuse of the Appellant was accepted, between 2008 and 2010 for a two year period there was little evidence concerning that but there was no evidence that she submitted during that time. Nor could it be deemed as a result of the sexual abuse at the hands of her brother’s employer. Those issues should be separated when looking at the facts. The obligation under the treaty does not specifically apply in this case.
(v) As to Article 8 private life, there was little evidence of how she enjoyed her private life. However it was accepted it was put on the basis of her physical and moral integrity. She has been in the United Kingdom for five years pursuing her appeal but there is little evidence, outside of the relationship that she has with the NHS/support workers/her GP of a private life in the UK. She continues to have a relationship with her mother and her sisters and on return she would have family support. In respect of the case law and Akhalu (as cited earlier) the headnote (2) makes reference to the consequences of removal for the health of a claimant who would not be able to access equivalent health care in their country of nationality as plainly being relevant to the question of proportionality. However it went on to state that “when weighed against the public interest ensuring that the limited resources of this country’s health service are used to the best effect for the benefit of those for whom they are intended, those consequences do not weigh heavily in the claimant’s favour but speak cogently in support of the public interests in removal”. In this case she has had expert care whilst in the United Kingdom that when considering the balance this adds to the public interest side for removal. As to the Kalayaan report, they are a respected organisation, however the most recent evidence was written by an advocate after a meeting. More weight should be placed on the medical evidence in relation to the Appellant as they are trained health professionals rather than the community advocate who may have an interest in the Appellant and overstep the mark.
(vi) In summary, the Respondent does not accept the Appellant forms part of a social group, she is not entitled to protection under the Refugee Convention, there is no real risk of suicide in this case and conducting the Article 8 proportionality assessment, the balance weighs in favour of the Respondent for removal for the reasons given.
34. Miss Robinson relied upon her skeleton argument and made the following oral submissions. She submitted that the Appellant did meet the requirements of being a “particular social group” as a “former victim of trafficking”. She relied upon the decision of SB (Moldova) (as cited). She submitted that in the decision of SB, it held that “Former victims of trafficking” and “former victims of trafficking for sexual exploitation” are capable of being members of a particular social group because of their shared common background or past experiences of having been trafficked. In the decision of Fornah [2006] UKHL Lord Hope at paragraph 46 emphasised, it is not necessary for society to recognise a particular social group as being set apart from the rest of society -
“It is sufficient that the asylum seeker can be seen objectively to have been singled out by the persecutor or persecutors for reasons of his membership of a particular social group whose defining characteristics existed independently of the words or actions of the persecutor”.
35. Miss Robinson referred the Tribunal to the US Trafficking Report dated 19th June 2013 (see page 5 at Tab G) noting that the government of Sri Lanka did not fully comply with the minimum standards for the elimination of trafficking. However, it is making significant efforts to do so. She submitted that the country evidence demonstrated that there were no prosecutions for trafficking reported in 2011 or 2012 (see Tab G page 7), but there was a generally dismissive attitude towards women within the justice system (see the USSD Report), that there was official collusion with traffickers (see US Report at Tab G page 7) and that there was corruption within the police and security agencies (see the USSD Report). There was a failure to provide shelters and a failure to provide re-integration (see the US Tip Report). In addition she relied upon the reports of Professor Good. She submitted that he had considerable background knowledge of Sri Lanka and whilst the Upper Tribunal was critical of his evidence in JG, the reports before this Tribunal were well sourced. Contrary to the submissions made by the Presenting Officer, at page 14 (First Report at paragraph 52) he referred to the detailed study of kinship and therefore that places evidence in his context of expertise. He has stated that the Appellant as a victim of trafficking and of sexual abuse will be stigmatised. The First-tier Tribunal did not accept the link and did not accept Professor Good’s assessment that it would be well-known, however Professor Good has provided a further report and at page 38 of that he makes a number of points. Those points are as follows. Women left by themselves are at risk of being promiscuous. The Appellant is in this situation and she has been away from Sri Lanka for a long time and gives rise to the risk that she has moved away from traditional values. At page 39 Professor Good gives a source for this in a report of 1999 having carried out research on Sri Lankan Tamils living in Norway. Professor Good considered the cultural implications of trafficking and sexual abuse and that firstly there was a cultural assumption that women are by nature sexually active and will initiate sexual activity if left unchaperoned in the presence of a man. This assumption pervades South Asian culture and accounts for a great deal of the effort that families put in to restricting the movements of their unmarried daughters, especially into preventing them from being in situations where their reputations can be damaged. The second point he made was the widespread feeling amongst Sri Lankans that those who live abroad, especially women but also men to some extent lose touch with their ethnic identity and culture. He also states that women who have been abroad are invariably suspected of sexual impropriety and this was particular evident in the case of unmarried women because of the concern over damage of their future marriage ability. This was based on the research amongst Sri Lankan women working as domestic servants in the Gulf states (see paragraph 43). Thus he concludes that there are “special circumstances” in the Appellant’s case that will impact adversely on her situation. Firstly she was the victim of familial rape. Professor Good states at paragraph 45 that it is not clear how widely known that is amongst the relatives though it seems likely it is known about in general terms given the public aspersions cast on her sexual propriety by her mother-in-law. He therefore concludes that she is a woman whose sexual reputation is already severely damaged in the eyes of many relatives and neighbours who will certainly be pre-proposed to believe the worst of her. Miss Robinson submitted that the First-tier Tribunal at paragraph 21 set out her account concerning this issue and that it was not confined to her mother-in-law but was widely known that she was not a virgin when she was married. Linking this to the evidence of Professor Good, she would be stigmatised and this would be confounded by the fact that she had been abroad (see paragraph 46 of Professor Good’s report). The evidence is Sri Lanka is a source country for trafficking and whilst the Appellant was not initially trafficked from Sri Lanka, the country evidence in the US State Trafficking in Persons Report demonstrates a number of issues relevant to this Appellant. As Sri Lanka is a source country it does not provide protection for victims of trafficking. Miss Robinson submitted that there was evidence of a lack of protection for those who have been trafficked and that also relates to those who are to be re-trafficked relating to the lack of shelters, and the failure to provide reintegration (see the US Trafficking Report). Based on the facts of this case the Appellant will be at risk; she had been trafficked once and once someone had been trafficked she would be vulnerable to re-trafficking. The expert consensus is that trafficking and re-trafficking is strongly associated with poverty. The Appellant will be returning as a single woman to Sri Lanka with no obvious means of financial support leaving her vulnerable to being re-trafficked. The Poppy Report (see Tab F; page 48) made a reference to the fact that research had shown the risk to repatriated victims is particularly high; twenty percent of women in a sample study disclosed that they were re-trafficked prior to being referred to the Poppy Project. Women were often re-trafficked shortly after returned by their original traffickers (including family members) or by entirely new traffickers. They conclude that she would be extremely vulnerable and would be at risk of being re-trafficked if returned to Sri Lanka. As the report says this is notwithstanding the finding that she was not initially trafficked out of Sri Lanka but would remain vulnerable as a victim of trafficking.
36. Furthermore beyond the personal risk from traffickers, the report noted that victims of human trafficking face major problems in successful reintegration in their country of origin and in their home communities. This related to social stigma and personal emotional trauma which is to be overcome during the process of reintegration. In conclusion they state that it was not in dispute that she was a victim of trafficking for domestic servitude to the United Kingdom and that she was also sexually exploited. The vulnerability and significant trauma she experienced as a victim of trafficking and the impact of this on her current needs and future safety should be recognised when assessing whether she can return to Sri Lanka. She cannot return as she has not recovered from her trafficking experience and in view of her fragile mental state will not receive the degree of care and support that she requires and also due to her particular characteristics as a single female with fragile mental health, a lack of support in Sri Lanka and the lack of access to support and protection she faces a significant risk of being vulnerable to traffickers and at risk of being trafficked from Sri Lanka. The IOM Report (2010, annexed to the skeleton argument) demonstrates at page 11 that trafficked persons are highly vulnerable to re-trafficking after having exited a trafficking situation and en route to assistance. The report noted that
“Victims of trafficking are frequently re-trafficked within two years or less of having exited a trafficking situation. Where re-trafficking occurs, it is not uncommon for it to be to a different destination or for a different purpose of exploitation on each occasion. The IOM database data also reveals a crossover between international and internal trafficking, with trafficked persons appearing to be potentially more vulnerable to internal trafficking on return to their countries of origin of an international trafficking situation.”
The evidence demonstrates that in this case because the Appellant had been exploited she would be vulnerable per se and it does not matter that she had not been trafficked from the UK. She has been exploited and therefore this renders her vulnerable (see the Poppy Project Report). The vulnerability that she has means that she will be preyed upon and taken advantage of by labour organisations to send her to Kuwait and that she would not be robust enough in such a difficult situation thus her vulnerability is the key to this issue. The IOM report also states that people are “economically vulnerable” and therefore she would be returning back to the societal/economic situation which would make her vulnerability more.
37. As to family members, the recent evidence set out in the Appellant’s statement makes it clear that she has a lack of family support. At paragraphs 58 to 66 she sets out that she has no one she can turn to for accommodation or financial or emotional support having left Sri Lanka eight years ago. She was last in Sri Lanka over five years ago. She said her three sisters were all married; two of her sisters live in other areas of Sri Lanka far from the village. Neither her sisters or her mother can financially support or accommodate her as they are living with their husbands and have their own families. It is stated that they do not even talk about her in front of others and sometimes the sisters pretend that she does not exist when they meet people who do not know her. Whilst she has some contact with her younger sister who is married, the contact is not very frequent. She states she has no contact with her mother and she lives with her sister and her husband and would not be in a position to help her. She has no contact with her father who has disowned her who thinks that she has brought shame on the family because her ex-husband had told the village about her not being a virgin when they married and thus her name has been ruined. The cousin who raped the Appellant has inherited land in the village where he now lives and thus she feels that she may be abused by him. Miss Robinson submitted on an alternative basis that if the Appellant cannot fall within a particular social group under the Refugee Convention, on the same facts she would be eligible for humanitarian protection based on the fact that she is a vulnerable adult who would be at risk of re-trafficking.
38. Miss Robinson then dealt with the issue of real risk of suicide. In the skeleton argument she also made reference to the decision of the Court of Appeal in J v SSHD [2005] EWCA Civ 629: which laid down the guidance for the assessment of cases involving suicide or self-harm. At paragraph 24 of the skeleton argument she also referred to the decision of Lord Justice Sedley in Y and Z (at paragraphs 15 to 16) which added a fifth principle to those set out in the decision of J. On the facts of this case, the medical evidence did support a real risk of suicide. The up-to-date medical evidence in the form of a letter from Dr Hannah Mitchell (dated 6th August 2013; page 62, Tab C) demonstrates that there had been a recent episode of self-harm whilst she was in temporary accommodation when she made a cut to her wrist. The doctor stated
“With regard to the ongoing risk of self-harm and suicide, I would agree with Dr Abas that there is an ongoing risk with this lady. There have been now multiple incidences of self-harm and I think that it is likely that without help these will continue. In particular she has expressed both to myself and Zainab the feeling that if she is sent back to Sri Lanka her life is ‘over’ and therefore I do believe that if she was refused asylum this could trigger further self-harm or thoughts of suicide … She has not disclosed any specific plans to kill herself during any of our consultations; however she clearly has risk factors in terms of her socialisation, her history of self-harming and her ongoing depression and PTSD symptoms.”
There is also the evidence of Dr Abas who assessed the Appellant’s risk of suicide as “at least moderate” (see Tab D; page 24) and that this would increase if she were facing removal. There have been incidents of self-harm in respect of the Appellant with the most recent one in June 2013 (see witness statement Tab B at page 23). In those circumstances whilst there is a high threshold for Article 3, it has been reached in this case. Alternatively it should be considered in relation to Article 8. In respect of Article 4 of the ECHR, Miss Robinson relied upon paragraphs 34 to 39 of her skeleton argument. In this case it was submitted that the risk that the Appellant faces of being re-trafficked would mean that there was a real risk that her rights under Article 4 of the ECHR would be breached if returned to Sri Lanka. As regards other trafficking considerations, the Appellant relied upon the following provisions of the Council of European Convention on Action against Trafficking in persons; Articles 12 (assistance to victims) and 14 (residence permit). Directive 2011/36/EU of the European Parliament and the Council of 5th April 2001 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision (the EU Trafficking Directive) became directly effective in the United Kingdom on 6th April 2013. In this case it is submitted that Article 11 was important and that in the light of the obligations under Article 4 and Articles 12, 14 and 16 of the CAAT and the Trafficking Directive, the Respondent’s decision to remove the Appellant without considering her obligations made the decision “not in accordance with the law” and a direction should be made that she grant the Appellant a period of leave (see EK v SSHD [2013] UKUT 00313). Based on the facts of this case, the Appellant has a need for leave to recover from her treatment. The Appellant has been exploited and the medical evidence demonstrates that she is suffering from PTSD which occurred as a result of her trafficking experience and the fact that it occurred some time ago does not matter. It is important to consider her needs now, that she needs the input of the Community Mental Health Team and needs medication, support and stability. Even if the support was theoretically available in Sri Lanka, her subjective fear is such that any benefits she could obtain would be lessened as she is so fearful of return. The Convention was developed to help people in this Appellant’s position. In respect of Article 14 and a residence permit, the Respondent has not decided that the Appellant meets this but given the medical evidence and recent evidence of self-harm she meets the conditions of Article 14. The Tribunal should consider these issues under Article 8 and take into account the Convention under Article 8. The remedy is to invite the Respondent to look at it again in the light of the Appellant’s vulnerabilities. The Secretary of State has not made a lawful decision. Miss Robinson relied upon the decision of the High Court of R (Atamewan) v SSHD report of 6th September 2013. In this case the decision was in 2010 and it was accepted she was a victim of trafficking but it was historic. Based on the decision of Atamewan (as cited) the policy relating to a historic victim of trafficking had found to be unlawful therefore the conclusive decision itself must be unlawful.
39. In respect of Article 8 the general principles were set out in the skeleton argument at paragraphs 43 onwards. In this case the Appellant has developed a private life in the United Kingdom and the decision under challenge amounted to an interference of that right to respect. As to the issue of proportionality, Miss Robinson submitted that it was open to the Tribunal in its Article 8 evaluation to find that the Appellant was entitled to a residence permit under the policy and the CAAT and that the Tribunal determining an Article 8 appeal is required to determine whether an Appellant would benefit from an applicable policy and would be entirely free to form its own judgment on the matter, that is the terms and applications of the policy (see Tozlukaya [2006] EWCA Civ 379 and Baig v SSHD [2005]. When taking all the relevant matters into account, the Appellant’s removal would be disproportionate in this appeal for the following reasons. The Appellant was trafficked into the UK, her mental health condition and risk of suicide, the conditions that the Appellant would be subjected to on return, her need for support and treatment that she is now receiving in the UK, the fact that her mental health condition was as a result of her being trafficked to the UK. Miss Robinson also submitted that whilst Mr Melvin had referred to the difficulties in success under Article 8, the case was a most unusual one on its facts involving an individual who was exploited in the UK and had had a pre-existing vulnerability. Much of the vulnerability that she now exhibits was as a result of her trafficking experience in the UK. This can be distinguished from the fact in Akhalu who came to the UK and fell ill in the UK when she had leave. Here the Appellant had leave and became ill as a result of her experiences in the UK. For those reasons, it would be disproportionate to now remove her from the United Kingdom in the light of those matters.
40. At the conclusion of the hearing I reserved my determination.
The Findings of Fact
41. It is common ground between the parties that the findings of fact made by Immigration Judge Pygott relating to the events that had taken place should be preserved. They are set out in the determination of the judge at paragraphs 83-93. They are as follows:
“85. My starting point is the Respondent’s acceptance in the second trafficking decision that the Appellant was trafficked into the UK on 4 May 2008 for the purpose of domestic servitude in a diplomatic household where she remained for a period of six weeks until 17 June 2008.
86. It is plain from the report dated 26 May 2010 by Camilla Brown of Kalayaan that a week later, on 24 June 2008, the Appellant first presented to Kalayaan. It is therefore convenient to consider next the period from June 2008 to date and then to revert to the issue of sexual abuse during the Appellant’s employment in the diplomatic household in the UK before dealing with events prior to the Appellant coming to the UK in May 2008.
87. There is little satisfactory evidence before me of the Appellant’s situation between June 2008 and shortly before June 2010 when the Appellant re-presented to Kalayaan. She had a contract of employment from 30 April 2009 to 31 May 2010 and it would appear she coped somehow. However, having regard to Ms Brown’s addendum of 10 June 2010 I accept that by the beginning of June 2010 the Appellant was homeless and in desperate need of somewhere to live. Having regard to Ms Brown’s last report dated 3 September 2010 I accept that after six weeks in hostel accommodation provided by the Southall Black Sisters from 11 June to 14 August 2010 the Appellant was once again without somewhere to stay and that was followed by a period when she led a chaotic, vulnerable and deteriorating hand to mouth existence. It then appears from the report of Dr Abas that the Appellant moved to Salvation Army safe accommodation in County Durham on 8 September 2010 where she has remained since.
88. I then come to the issue of sexual abuse at the hands of the brother of the Appellant’s Kuwaiti employer in the UK. I have little hesitation in accepting that it occurred. It has not been the subject of any serious challenge by the Respondent. That aside, broadly speaking the Appellant’s account of this in her second statement is consistent with her accounts as related in more detail to Dr Egnal and Dr Abas and set out in their reports of 18 October 2010 and 12 January 2011 respectively. The symptoms described to Dr Egnal and Dr Abas were consistent and Dr Abas considered them to be consistent with a trafficking victim who had been subjected to sexual abuse.
89. As to the delay in disclosure I have regard to the views expressed by Dr Abas and Ms Skrivankova in their reports (see paragraphs 43 and 51 above). I accept that it was not until moving to the Salvation Army safe accommodation in County Durham that the Appellant has had somewhere secure and settled to stay since leaving her Kuwaiti employer and that clearly weighed with Dr Abas. I also have regard to the reports of Dawn Hopps, an approved mental health practitioner member of the Crisis Team at West Park Hospital, which is part of the Tees, Esk and Wear Valleys NHS Trust, and two reports dated 16 December 2010 and 10 January 2011 from Lynne Hinde at the Rape & Sexual Abuse Counselling Centre (Darlington and County Durham) both of whom who have been treating the Appellant.
90. With regard to the Appellant’s amplified account of events as summarised in paragraphs 19 and 21 above, including details of her family background, sexual abuse by her cousin, her abusive marriage and events in Sri Lanka prior to leaving for Kuwait the first time in 2005, her employment in Kuwait from 2005 to 2007, and events on her return to Sri Lanka which she says drove her to return to Kuwait, again this has not been the subject of any serious challenge by the Respondent. In fairness to the Respondent, however, any direct challenge has been difficult given the late disclosure in stages of much of this account and the inability to cross-examine the Appellant at the hearing. Nevertheless there is nothing inherently incredible about the Appellant’s account. Further, it is not suggested that it is inconsistent with the background information.
91. I do, however, have my doubts about the Appellant’s account of her employment in Kuwait from 2005 to 2007 for this has changed distinctly. In her solicitors’ letter dated 21 November 2008 in support of her application to vary leave it would appear she told them she had been very happy working as a live in nanny to two children from April 2005 to December 2007. In the first of her written statements she says the working conditions were terrible. She wasn’t paid for two years, she found herself with twelve children, not two, and having to take over cooking and cleaning after a few months and she was shouted albeit not physically abused. In her second written statement she gives a similar account and says it was extremely difficult. In Dr Egnal’s first report he records that the Appellant was very happy working for the Kuwaiti family in 2005 and was well treated and paid. (I note, incidentally, that he had before him an undated statement by the Appellant which I have not seen.) Dr Abas records that the Appellant worked for a Kuwaiti family between 2005 and 2007 when the work was hard with long hours doing domestic work and caring for children for a man with two wives but she was reasonably well treated and paid. There is no satisfactory or credible explanation for these variations of account. In her report dated 4 January 2011 Ms Skrivankova states at paragraph 11, For several years, [the Appellant] has been subjected to violence, and experienced repeated victimisation in forced labour, that included sexual abuse. However, that does not seem to me to be an accurate reflection of the evidence and I do not accept that the Appellant was the subject of forced labour in Kuwait between 2005 and 2007.
92. It is also unclear how long the Appellant remained in Kuwait the second time and what she did for part of the time there apart from working for Mrs Faiz. Again, the accounts in her solicitors’ letter of 21 November 2008 and her statements made getting on for two years later, after she had gone back to Kalayaan in June 2010, differ. Her different accounts in relation to the two periods she was in Kuwait are further muddied by what she said at her interview in August 2010, although I view that with some caution since she was clearly not thinking straight at the time. So, for example, she said at that interview with seeming conviction that she had come to the UK in May 2007 when manifestly the Respondent’s system shows she arrived in May 2008. However, it remains plain from the Appellant’s evidence that she made her own arrangements to travel to Kuwait on both occasions and she was able to return to Sri Lanka in December 2007. One way or another I do not accept that the Appellant was trafficked to Kuwait from Sri Lanka either in 2005 or 2008.
93. As regards the rest of the Appellant’s account of events prior to coming to the UK, albeit with some reservations given that I have not had the benefit of hearing and seeing her give evidence, I proceed on the basis that it is credible. However, I take from the report by Dr Abas that the Appellant’s account of having been raped by her cousin when she was 12 does not feature in a significant way in her current mental state, which is primarily related to the sexual abuse she suffered from her Kuwaiti employer’s brother in the UK.”
Summary of the evidence before the Tribunal:
The medical evidence:
Reports of Dr Neil Egnal dated 30th June 2010 and 18th October 2010
42. Dr Egnal is a consultant clinical psychologist having retired as head of psychology with the Learning Disability Service of the Barnet division of Barnet, Enfield and Haringey Mental Health NHS Trust. He qualified in 1966, has worked with a large clients from immigrant communities and has had over 42 years of experience in clinical psychology. The first report was prepared after he saw the Appellant on 28th June 2010 (see Tab C 30 to 38). The doctor carried out a number of tests which are set out at pages 34 to 35 of the report. The diagnosis that he made in respect of this Appellant is set out at paragraph 36 that she was suffering from complex PTSD which required the victim to have been exposed to recurrent traumatic events over a period of time in which she experienced, witnessed or was confronted with an event or events that involved actual or threatened harm, injury, ill-treatment or a threat to the physical integrity of the self and her response involved fear, helplessness or horror. He found features of PTSD being present namely sleep disturbance, irritability, concentration difficulties, cutting herself off from others, inability to discuss her experiences and loss of hope for the future. He further found that she was suffering from depression and anxiety and stress and that those conditions of anxiety and depression and having a vulnerable personality would make it more difficult for her to protect herself from future harm or exploitation. He found that her depression, stress and anxiety would be expected to increase due to her unresolved immigration status. He found that she appeared to have an increased risk of suicide brought on by despair and helplessness and due to elements of impulsivity in her personality, he assessed this risk as being moderate. He found that she was incapable of looking after herself without the care and support of a responsible and mature adult and that she was physically and emotionally vulnerable and was in danger of exploitation should she be left to her own devices. In his opinion she appeared to be an immature and vulnerable young woman and had an IQ in the low average range IQ80 – 89. He found her to be a highly vulnerable person and would not be able to adequately protect herself from danger, exploitation or further trafficking. He found that she was currently living in a protected environment and was deriving benefit from the placement which she hoped would continue. At page 36 of the report he noted in respect of her vulnerability that she was a vulnerable young person and may well be prone to impulsive actions which coupled with her depression and should she reach a sufficient state of despair and insecurity together with loss of hope for the future, would indicate the possibility for self-harm. He also noted that her vulnerable personality would indicate that she is likely to become a victim of exploitation once more.
43. The second report is dated 18th October 2010 and found at pages 41 to 44; Tab C. The report was prepared after he saw her on 18th October 2010. He recorded that since his meeting with her in June, she has lived in more than twelve places mainly staying with friends or being housed by church groups and at one time she had become completely homeless and had to sleep in a telephone booth. At the time of the report she was now housed in a Salvation Army safe house. It was further noted that when she met with her legal advisors and representatives of the Kalayaan organisation, she was noted to have markedly deteriorated mentally, showed a low mood, had a distressed demeanour and that she displayed vulnerability, excessive crime behaviour, memory impairment and suicidal ideation.
The Assessment
44. He concluded that her mental health had deteriorated since his initial assessment on 28th June 2010 and what appeared to be the “emergence of her thoughts, feelings and distress about her employment and sexual exploitation”. He found that her depression has had an impact on her ability to communicate coherently and that at the present time she was not fit to be interviewed by the Home Office, attend a Tribunal hearing or give a reliable and coherent account of events.
The Reports of Dr Melanie Abas dated 12th January 2011, 11th July 2012 and 16th August 2013
45. Dr Abas is a clinical senior lecturer in international mental health at the Institute of Psychiatry, Kings College, London and honorary consultant psychiatrist at the Centre for Anxiety Disorders and Trauma, Morsley Hospital London.
46. In addition to considering the documentary material before her, after having seen and assessed the appellant on 13 December 2010, Dr Abas collected information by telephone from staff living and working with the appellant at the Salvation Army accommodation in County Durham to which she had moved on 8 September 2010.
47. Under the heading of History of current psychiatric symptoms Dr Abas notes that the symptoms described to her by the appellant are highly consistent with those described by Dr Egnal. She records further, that it was at some point between the end of September and early October 2010 that the appellant disclosed to her key worker at the Salvation Army she had been sexually abused by the brother of her employer in London and it was that particular experience she had been reliving and re-experiencing. Dr Abas goes on to state:
During October 2010 her symptoms became particularly marked. She was extremely distressed, very tearful and was unable to control her behaviour. She would fall to the ground, and complain of being unable to clean her body adequately so she would use bleach to try to cleanse it. She feared that people were laughing at her and criticising her. She was threatening to harm herself and she was put on regular suicide checks because of this. Along with her symptoms of depression, tearfulness and poor sleep she also developed ideas that people were laughing at her. Although she never experienced hallucinations, my impression is that she had additional persecutory ideas at this time, probably as part of her depressive illness, indicating the severity of her depression during October 2010.
She was assessed by the mental health crisis team on October 6th 2010 and found to be markedly distressed with severe insomnia and with suicidal ideation. She was placed on antidepressant treatment and also medication to help her sleep and referred for rape counselling. She has regular follow up from a Community Psychiatric Nurse and remains on psychiatric drugs. The team caring for her have a plan to monitor her, review medication and refer for additional psychological therapy.
48. Under the heading Appearance and behaviour, Dr Abas notes:
... she was very polite and co-operative and tried to give full answers to all my questions. She looked as though she had been crying when she arrived. She was slightly tearful on and off throughout most of the interview [which lasted over 2 hours]. She cried uncontrollably when relating details of the sexual abuse by the appellant’s brother. This appeared very genuine. ...
49. As to whether the appellant’s symptoms were consistent with her being a trafficking victim who has been subjected to sexual abuse Dr Abas states:
The symptoms that [the appellant] presents with are, based on my experience and my reading of the literature entirely consistent with a trafficking victim who has been subject to sexual abuse. Victims of trafficking are extremely commonly subject to sexual exploitation whether this be as a direct reason for them being trafficked or as a by product of the powerless situation they are in and the extreme degree of control they are held in by their employer or by their employers/associates. It would also be entirely consistent that she would not be in a position to tell anyone about sexual abuse and indeed that she should wait until she is in a position of relative security and safety before disclosing, which I will come onto later.
50. Dr Abas took the view that the appellant had suffered a prolonged period of exploitation and describes the period the appellant was working in Kuwait from 2005 to 2007 (which was tough but the appellant was able to cope), followed by her move to London in the hope of a better job, fleeing that job, being unable to convert her visa from a diplomatic domestic visa to a standard domestic visa, finding herself unable to earn any money and being homeless. As a consequence she developed a depressive illness and post-traumatic stress disorder. Dr Abas stated unequivocally that the post-traumatic stress disorder was directly related to the appellant’s sexual exploitation during her trafficked employment.
51. In summary Dr Abas diagnosed that she met the criteria for a depressive episode of moderate severity since at least the early months of 2010. Her depression was accompanied by suicidal ideation and by behavioural disturbance and possibly some paranoid beliefs that people were laughing at her. The features such as washing herself with bleach and falling to the floor were consistent with the diagnosis of depression and as having negative thoughts about one’s self and low self esteem are recognised features of depression and that the Appellant was extremely shameful about the sexual abuse and feared that if people found out that she would be the subject of gossip. It was also found that her relatively low education achievement and her borderline intelligence had also increased the chance that she would show behaviour disturbances as part of her experience of depressive illness. Dr Abas also found that the Appellant met the criteria for PTSD since at least June 2010 and continued to meet the criteria for this. The Appellant had experienced symptoms following a traumatic event of exceptional severity namely being threatened with permanent imprisonment if she did not comply with degrading sex acts to which she reacted with horror and helplessness. The typical symptoms that were found in her case are set out at page 9 of the second report. As to the current mental state of the Appellant as at the date of the report, Dr Abas found that though she had improved relative to October 2010 she had not fully recovered from her depression. She had also shown improvement relative to October 2010 in relation to her PTSD but that her recovery was only partial. The doctor was unable to give a firm diagnosis at the date of that report for the reasons given at page 10. The doctor found the symptoms that the Appellant presented with are, based on the doctor’s experience and the reading of the literature, to be entirely consistent with a trafficking victim who had been subjected to sexual abuse. The doctor found that her long-term prognosis was guarded at present and would depend on whether her depression continued to improve but the doctor found it was far too early to be able to make such a prediction. As to the current risk of suicide or self-harm the doctor found that to be moderate. Dr Abas noted that she had made a suicide attempt in the past and that in the last three months she had suicidal ideation and only in the last six weeks had begun to recover from a significant depressive illness therefore the doctor concluded that caution was necessary about her risk of suicide and/or self-harm (see page 12 of the report).
52. The addendum to that report is dated 1st July 2012. The Appellant for the purposes of this report was interviewed on 9th May 2012. At the time of the examination she was living in shared accommodation with six or seven other females in Sheffield. Since that examination she had recently moved by the Home Office to a flat in Sheffield where she lived alone. Upon examination the doctor found her to be a young lady who looked dishevelled and it appeared that she had been crying before she arrived and that she cried repeatedly on and off for much of the first hour of the assessment and again towards the end. On two occasions she appeared to lose track of what she was saying and stare over the doctor’s shoulder, repeating a few words for twenty to 30 seconds (see page 20). Her mood was described at page 20 as sad and empty and at times angry. She felt tired just about every day and no longer takes pleasure from reading the bible and has difficulties in concentration. It is recorded that she cried a lot and felt that her life was empty and that she had chronic anger about men and the people who had mistreated her including her mistreatment by her father, cousin, husband and mother-in-law in Sri Lanka and also by the man who sexually exploited her while she was the victim of trafficking in the UK. As regards abnormal beliefs and experiences, it is recorded at page 20 that she described waking up from sleep to hear the voice of the man who exploited her in the UK saying “do it, do it”. She tried to push him away very hard and could feel his body next to her and see him in front of her in the room. She believed that some marks on her body are scars caused by the bites of the man who assaulted her when she was the victim of trafficking in the UK.
53. As to the Appellant’s anxiety, the doctor recorded that she had a number of ongoing symptoms of post-traumatic stress disorder including re-living experiences, or flashbacks, with avoidance and hyper arousal. The main intrusive re-living experiences are linked to her experiences of sexual abuse and sexual exploitation while trafficked for domestic servitude in the UK. Dr Abas at the date of the report diagnosed the Appellant as having a depressive episode of a moderate severe depression with additional atypical features. Dr Abas found that the Appellant met the criteria for a depressive episode of at least moderate severity; symptoms including persistent sadness, emptiness and loss of interest. Further symptoms included sleep disturbance, poor concentration, lack of energy, low self esteem and recurrent thoughts of death. In her case there were additional features; her experiences of waking to the man who assaulted her in her room and feeling his body against hers and also hearing noises that could be auditory hallucinations could be consistent with her developing some atypical or psychotic symptoms as part of her depression. In the past she also had some behaviour disturbances including washing herself with bleach and falling to the floor which could be atypical features of depression such as those described in non-Western cultures. Alternatively, it could be the sum of the symptoms that are observed, such as her tendency to become extremely distracted and to describe unusual experiences like hearing strange noises and thinking that people may be planning bad things about her, could be linked to longstanding personality difficulties.
54. Dr Abas found that she met the criteria for PTSD and that she continued to meet the criteria at the date of the report. This included re-living the experiences or flashbacks of forced sexual acts and assault by the man who assaulted her when she was the victim of trafficking in the UK. She also experienced outbursts of anger, sleep disturbance and poor concentration which are part of the diagnostic group of symptoms of PTSD. It was also recorded that the Appellant thought that the marks on her body mean that she had been permanently damaged by the man who assaulted her when she was the victim of trafficking in the UK. Dr Abas considered that such appraisals of being permanently damaged as part of a severe trauma are a common feature of post-traumatic stress disorder. An additional diagnosis made by Dr Abas was “unspecified psychosis”. Dr Abas recorded at paragraph 22 that some of the symptoms the Appellant described are found in psychotic illness such as schizophrenia and organic psychosis. Those included her lack of energy, her outbursts of emotion and anger and her experiences of hearing noises. However, the noises do not seem fully formed, clear hallucinatory experiences and she hears them very close to her head and possibly inside her head. It was difficult for Dr Abas to fully explore the experience as a result of language difficulties. The doctor found that it was extremely unusual for true hallucinations to be in two modalities at once; both visual and somatic and although the experiences could be part of a psychotic illness, Dr Abas thought it more likely that the origin of those were vivid memories and dreams related to her post-traumatic stress disorder and that they have been complicated by personality vulnerabilities and by her borderline low intelligence as indicated in the report of Dr Egnal; (30th June 2010).
55. Dr Abas considered her current mental state. Dr Abas found that she had noticeably deteriorated since the assessment made on 8th December 2010. From reading the GP notes for 2011/2010 there had been a noticeable deterioration in her mood and she now fulfilled the criteria for a major depressive order which is moderate to severe. This was supported by the consistency of symptoms and signs described in her GP notes and by the presentation both in 2010 and in May 2012. The doctor gave a description of the symptoms and signs that she had noted at page 22(i), including sadness, and emptiness, frequent anger moves, unable to find energy, motivation or confidence to find a church in Sheffield, poor concentration and throwing things and damaging things in her room. Dr Abas considered that another symptom of depression is disturbed sleep and that had also been demonstrated from the notes.
56. Dr Abas found that a number of her current symptoms were linked to her experiences as a victim of trafficking during the employment of the Kuwait employer in the UK between May 2008 and June 2008. Those included both intrusive thoughts and re-experiencing phenomena which reminded her of acts that she was forced to perform by the employer’s brother. This included if she ate specific foods which would trigger memories of being forced to perform oral sex on her employer’s brother. They were recorded as “very distressing flashbacks”. In addition, Dr Abas found that she had developed a number of unusual beliefs and experiences related to her experience as a victim of trafficking; including a belief that she had marks on her body, on her breasts and on her torso which are scars caused by bites inflicted by the man who abused her when she was trafficked. She also experienced vivid dreams that the person is raping her.
57. Dr Abas was of the opinion that she had not recovered and that some of the symptoms that were present when the doctor last saw her have undergone a natural deterioration and that it is now more obvious that her primary diagnosis is a depressive illness, combined with an additional diagnosis of post-traumatic stress disorder. Dr Abas thought that another possibility for her ability to recover is that the moves in housing and location since her last assessment and ongoing uncertainty have contributed to her deterioration. Dr Abas did not consider that she was able to give a definitive long-term prognosis. The points recorded suggested a poor prognosis including the chronicity of her symptoms (she had had depression now since at least the end of 2010), the depression had not responded to two courses of SSRI medication and a low dose of an antipsychotic drug, she had comorbidity (a second diagnosis of PTSD), the addition of having a second diagnosis will worsen her prognosis, other reasons for poor prognosis including the very factors that made her vulnerable in the first place of being trafficked to the UK including her adverse childhood experiences, her personality difficulties and her borderline low intelligence. The atypical features (including hearing noises of people talking and experiences of feeling the body of a man who assaulted her when she was the victim of trafficking in the UK) indicate a worse prognosis for her depression.
58. As to the risk of suicide that was dealt with by Dr Abas at page 24 that the current risk of suicide and self-harm at the date of the report in 2012 was “at least moderate”. It was recorded that in February 2012 she had planned to take her life by cutting her wrists. At the date of the examination it is recorded that the Appellant did not have a plan but said that she stands next to fast trains and she sometimes thinks how easy it would be just to fall in front of a train. In addition, it was noted that she had harmed herself on at least two other occasions some time during 2010 when she was living with the Salvation Army in Shildon. The fact that she has a depressive illness added further weight to her risk of self-harm. In Dr Abas’ opinion the risk of suicide and/or self-harm would increase if she thought she were going to face removal to Sri Lanka. In this context, Dr Abas thought that if she was removed currently to Sri Lanka that there would be a “high risk of self-harm and deterioration in her mental health”. The doctor’s view is that a key way in which the risk will be reduced was if her depression was properly treated before any removal and that with expert assessment and treatment there would be reasonable possibility that the depression could be improved such that she could both feel better in herself and gain a broad prospective and more positive outlook on forming a new life for herself back in Sri Lanka. A part of the recovery could be facilitated if a sensitive introduction could be made to an experienced Sri Lankan mental health professional in the UK who could talk to her about her concerns about her confidentiality, ways to build her life in Sri Lanka, and how she could keep her life history should she be removed. The person could also assist with making a care plan on her arrival to include support from an organisation of victims of trafficking to include rehabilitation and psychiatric care.
59. The most up-to-date report from Dr Abas is set out at pages 27 to 29; see Tab D; report dated August 16th 2013. For the purposes of this report Dr Abas had been provided with the most recent evidence from the Appellant’s GP and that Dr Hannah Mitchell. Dr Abas noted that in the report dated 1st July 2012 she concluded the following:-
• the Appellant suffered from moderate to severe depression,
she suffered from post-traumatic stress disorder,
she had personality vulnerabilities,
she had borderline low intelligence,
her lack of certain instability contributed to a deterioration in her condition,
she posed a moderate suicide risk,
her mental health had deteriorated since her last report,
she required psychiatric assessment and treatment,
and she required support for daily functioning.
60. Dr Abas noted that Dr Mitchell in a report of 19th June 2013 confirmed those findings. She also noted that Dr Mitchell had compared the reports that she had written with her own clinical assessments and stated that there had been very little change in the Appellant’s condition. Dr Mitchell described the Appellant as socially isolated, with anxiety and depressive symptoms that make it difficult for her to carry out the necessary activities of daily living, she required significant psychiatric medical care from her doctor and requiring mental health care including specialised counselling, outreach care and social care from the Community Mental Health Team. Dr Mitchell has arranged for two members of the Community Mental Health Team to provide care for the Appellant confirming the high level of need for care currently required by the Appellant. In answer to two questions posed by the Appellant’s solicitors relating to any change in respect of the availabilities of mental health services where her family lived in Sri Lanka and whether there was anything further that had arisen from the medical updates of Dr Mitchell or the Appellant’s statements, Dr Abas set out the answers to those questions at page 29. Dr Abas noted that she had investigated options for psychiatric and community mental health care in a city nearest to the Appellant’s home which is Kandy. In doing so she had consulted with two senior mental health professionals, one based in Sri Lanka and the other work between Sri Lanka and London. There have been some improvements in provision of psychiatric care and that a psychiatric doctor is now working in Kandy which would allow medical care with antidepressant drugs. However the range of drugs is limited compared to the UK with less access to specialised drugs. The drug being prescribed currently for the Appellant, which is strongly recommended by the UK evidence based guidelines is not commonly available in Sri Lanka other than under private paid prescription. There is no access in Kandy to outreach for the Community Mental Health Team. There is far less access in the city to specialised counselling or to trauma focused cognitive behaviour therapy. Relative to the care deemed essential to her, the provision would thus be far lower. Dr Abas considered that this combined with her ongoing severe symptoms and her background vulnerabilities would increase her risk of mental and physical deterioration. Dr Abas noted that the Appellant remained with symptoms of depression and anxiety and was noted to be “a very vulnerable and fragile person”. She concluded that she did not think that a comparable standard of care would be available in Sri Lanka.
61. Dr Abas in her reports made reference to information that she had seen from the GP’s records. Some of those reports are set out in Tab C of the Appellant’s bundle. One of those reports is dated 19th April 2012 from Dr Nutt. It was noted by the GP that the Appellant had been seen on several occasions by different clinicians at the surgery since her arrival in July and also elsewhere in the country before her arrival in that area. He considered that when looking at the records since she was referred to the Mental Health Crisis Team in October 2010 that it was apparent there was a complicated history of post-traumatic stress symptoms relating to her allegations of sexual assault and rape on multiple occasions since a young age. The diagnosis made by the GP in April 2012 was set out at page 23 namely that she displayed anxiety and stress symptoms despite being on regular medication and had been relisted for counselling appointments following a reassessment by the specialist rape counsellor on 31st January 2012. It is recorded at page 23
“There is no doubt in my mind that there is a definite causal link between her symptoms both of depression, post-traumatic stress symptoms and sometimes fairly florid psychosomatic physical symptoms and her suffering caused through her history of abuse”.
62. The most up-to-date evidence is found in the reports of Dr Mitchell (see Tab C at pages 51, 53, 55, 58 and 63). There was reference to that evidence in the most recent report of Dr Abas. At page 51 it was recorded that she was now seeing Dr Hannah Mitchell regularly and was also being see by one of the community mental health nurses and a further individual from the transcultural team. It was noted that she continued to have “flashbacks around the incidences of abuse and also had nightmares and intrusive sensory impressions. She is hypervigilant and very anxious about going into public places particularly around men.” It was found that her concentration was poor and she struggled with poor sleep. It was noted that she had in the past expressed suicidal thoughts however currently did not have any intention of acting upon these. She was recorded as having lost motivation and experiences anhedonia, no longer undertaking activities which she used to enjoy such as going to church. Those symptoms were having a severe effect on her ability to establish a life for herself in the UK. It was noted that she is socially isolated and her anxieties and depressive symptoms made it difficult for her to integrate within the community and carry out the necessary activities of daily life. The current plan as at June 2013 was that she would be followed up by Dr Mitchell, would have ongoing input from her community worker and also ongoing counselling. There is a further report dated 6th August 2013 from Dr Mitchell concerning a recent episode of self-harm whilst in temporary accommodation when she made a cut to her wrist. It was noted that
“With regards to the ongoing risk of self-harm and suicide, I would agree with Dr Abas that there is ongoing risk with this lady. There have now been multiple incidences of self-harm and I think that it is likely that without help these will continue. In particular she has expressed both to myself and Zainab the feeling that if she is sent back to Sri Lanka her like is ‘over’ and therefore I do believe that if she was refused asylum this could trigger further self-harm or thoughts of suicide. Miss R has not disclosed any specific plans to kill herself during any of our consultations; however she clearly has risk factors in terms of her social isolation, a history of self-harming and her ongoing depression and post-traumatic stress symptoms.”

The Report from the Poppy Project dated 8th August 2013
63. This is a report from a senior support worker at the Poppy Project. The Poppy Project is the largest independently funded service in the UK which delivers support and/or accommodation to female victims of trafficking. They have to date received over 2,015 referrals all of whom were trafficked into and exploited in the UK. The Poppy Project had accepted 42.1% of these referrals on to the project for support, whom, after they had completed an assessment, had deemed to be credible in their claims of having been trafficked. Access to the project is dependant on a woman meeting certain criteria based on the international definition of trafficking. The Poppy Project supports women over the age of 16 who have been trafficked into or within the UK and have experienced exploitation as a result of their trafficking situation. Exploitation included sexual exploitation and prostitution, forced labour including domestic slavery, organ harvesting, forced illicit activities or other forms of exploitation as identified by the Poppy Project. Women need not enter the NRM, will be supported whilst challenging any decisions resulting from involvement in that system, and may or not have recourse to public funds. The Poppy Project receives referrals from a variety of organisations such as the police, the UKBA, solicitors, NGOs and self-referrals; the list is by no means exhaustive. It is noted that women accepted onto the project are allocated a senior support worker with whom they meet on a regular basis who provide on going practical and emotional support, as well as advocacy to enable women to access a wide range of services, including health services, counselling and access to legal advice. The Appellant was referred to the Poppy Project on 1st September and a full assessment was carried out by a senior support worker from the Poppy Project on 17th September 2012. The assessment procedure used by the project was attached to the appendices of the report and the assessment of potential victims applied the definition of human trafficking adopted by the Counsel of Europe Convention of Trafficking in Human Being 2005 (CECTHB).
64. The Poppy Project met with the Appellant on 17th September 2012 to assess her claim of being a victim of trafficking and any support that she needed as a result of being trafficked. She was supported for a period of four months but that came to an end as they could only offer short-term crisis support. It was noted by the senior support worker that the Appellant had not appeared to have recovered from her trafficking experiences and as a consequence was provided with outreach support and advocacy. The background to the report is set out at pages 42 to 44 and the author of the report noted the findings of fact made by the First-tier Tribunal. In that context it was noted that whilst the Respondent accepted that she had been a victim of trafficking it had not been accepted in the negative conclusive grounds decision that she was in need of assistance. The basis for that was that she had escaped for a reasonable length of time and did not fit into the Convention as needing assistance. The author of the report did not consider that to be correct noting that the Appellant was very much in need of psychological support services and that she had not had the assistance as required following the European Convention against trafficking. It was noted that at the time she had been assessed in September 2012, that the Appellant had explained that she had self-harmed by cutting her arms and that she had burnt her arm in attempt at suicide. It was recorded that she felt very angry about what had happened to her and that she felt very anxious all of the time and this easily triggered into bad memories of her trafficking situation. The report went on to consider the psychiatric report of Dr Abas which has already been summarised earlier. At the time of the assessment it is recorded by the Poppy Project that she was “very socially isolated and lacked occupation” (see page 46). The assessment also looked at how the Appellant presented in terms of physical and mental health symptoms and compared them with the findings by Cathy Zimmerman in 2003 research which had looked at the impact of trafficking on women. They found that the Appellant presented as “having complex mental health needs which are consistent with Zimmerman’s findings”. It was noted that the Appellant had become very distressed and re-traumatised at a number of points during the assessment and whilst she made a significant effort to cooperate in the assessment and had tried to answer questions she found it extremely difficult to do so. It was noted that the Appellant struggled to describe some of her experiences and that trafficking victims often struggle to fully disclose their experiences and that this was for a number of reasons, including, but not limited to, a fear of reprisals, stigma or feelings relating to shame or guilt, experiences of coercion and/or manipulation, lack of trust in the authorities and/or experiences of corrupt officials. The trauma of the abuse suffered may also affect a woman’s ability to recall events and many victims suffer memory difficulties. The support worker was able to build a relationship of trust with the Appellant and assessed her as a victim of trafficking. Page 48 of the report dealt with the dangers the Appellant may face in Sri Lanka. It was recorded that the Appellant believed that if she returned to Sri Lanka her life would be endangered as she was not a virgin when she married and this was culturally unacceptable. It was noted that:-
“The Poppy research has shown that the risk to repatriated victims is particularly high. 21% of women in a sample study disclosed that they were re-trafficked prior to being referred to the Poppy Project. Women were often re-trafficked shortly after return by their original traffickers (including family members) or by entirely new traffickers. IR is in my opinion extremely vulnerable and would be at risk of being re-trafficked if returned to Sri Lanka, this is notwithstanding the judge’s finding that she was not initially trafficked out of Sri Lanka; she remains vulnerable as a victim of trafficking. Women report lack of protection and corruption from the authorities and even complicity of family members in re-trafficking or rejection by family as factors in their re-trafficking.
Beyond the personal risk from traffickers it is important to note that the victims of human trafficking faced major problems and successful reintegration in their country of origin and in their home communities. Social stigma and personal emotional trauma must be overcome during the process of reintegration. Further to the actual risk to IR, it is my opinion that the perceived risk and the related fear that IR would experience if she were returned to Sri Lanka would pose a serious risk to her already fragile mental health and impact strongly on her ability to care for herself.”
She concluded that she would be very concerned if IR were returned to Sri Lanka and that she would be vulnerable to being re-trafficked.
65. The recommendation is found at page 49 noting that at the time of the assessment she was awaiting specialist trauma counselling. The needs of trafficked women are complex and multiple in terms of both physical and mental health and the effect of trauma of trafficking are long-term and require victim centred, needs based support. It was noted that IR had been subjected to violent sexual, psychological and physical abuse since the age of 11 and the experiences and events that she described, and the symptoms that she presented with, led her to recommend that she would require long-term support using a multiagency approach with practitioners specifically trained to work with survivors of sexual violence and trafficking in a safe and respectful environment. In the UK, the primary project to work in this way with the victims of trafficking is the Poppy Project. It was also noted that
“A strong support network will also be necessary to allow IR to begin to recover from her experiences and begin the process of rebuilding her life. She had just begun to establish such a network from professionals and if she were forced to return to any part of Sri Lanka, the evidence suggests that a victim of trafficking, she would be at high risk of future harm and re-trafficking on return.”
The author of the report concluded that “I am not currently satisfied that IR would be able to access sufficient protection should she be returned to Sri Lanka. I believe her return would present serious risks to her safety.” In conclusion she stated:-
“I have considered that she cannot return to Sri Lanka because she has not recovered from her trafficking experience and in view of her fragile mental state will not receive the degree of care and support that she requires and also due to her particular characteristics as a single female with fragile mental health, a lack of support in Sri Lanka and a lack of access to support and protection there she faces a very significant risk of being vulnerable to traffickers and at risk of being trafficked from Sri Lanka.”
It was further noted that the level of distress and emotional instability described by IR, which was evidence during the assessment is consistent with symptoms commonly associated with victims of trafficking and abuse.
The Reports from Kalayaan dated 26th May 2010, 10th June 2010, 3rd September 2010 and 10th September 2013
66. The reports were produced by Camilla Brown and the most recent report by Kate Roberts, community advocate. Kalayaan is a charity which gives advice and supports to migrants who enter the UK on the domestic worker visa. It is the only specialist organisation working with migrant domestic workers in the UK. These are workers who have entered the UK with an employer to work in their private household. The unregulated, hidden and isolated nature of domestic work means that these workers are particularly vulnerable to abuse and exploitation. Their expertise is set out at page 2; (see first report Tab F). Between May and September 2008, it participated as a referral organisation in a Home Office pilot on labour trafficking (Operation Tolerance). From April 2009 it became one of the few authorised first responders for the National Referral Mechanism for Victims of Human Trafficking. The reports from Camilla Brown (dated 26th May, 10th June, 27th July and 3rd September 2010) support the Appellant’s claim to have been a victim of trafficking and obtaining support for the Appellant as a recognised victim of trafficking.
67. In her report of 26 May 2010 Ms Brown records that the appellant went to Kalayaan on 24 June 2008 and sets out the history given by the appellant at that time of how she came to the UK and her conditions of employment here.
68. In her addendum dated 10 June 2010 Ms Brown records that the appellant presented at Kalayaan again on 1 June 2010 saying she desperately need help because she couldn’t remain living where she was and was liable to become homeless within a week. She had exhausted all avenues of support after running away from her traffickers in 2008 since when, not being able to work, she had relied upon the charity of friends to support, clothe, feed and accommodate her. She had no money to pay rent. She was very distressed, frightened and alone. Ms Brown was able to obtain funding for accommodation from the Southall Black Sisters for a maximum of six weeks. Ms Brown concluded by saying she was gravely concerned about the effects of the insecure housing situation on the appellant’s mental health; without secure accommodation she would be at extreme risk.
69. In her addendum dated 27 July 2010 Ms Brown states that on 12 August 2008 the appellant was referred to the UKHTC through the Home Office’s pilot project on labour trafficking, Operation Tolerance, on 12 August 2008. At that stage it was not clear how far reaching the role of UKHTC would be, particularly with regard to police investigation. Following the referral, Kalayaan gave the name and address of the appellant’s employer to the victim care coordinator who confirmed he would chase recovery of the appellant’s passport. Otherwise Kalayaan would have referred to the police for that purpose. It was therefore understood UKHTC would be taking responsibility to lead any investigation against the employers. The police investigation was not chased by Kalayaan. It was only when the appellant’s solicitors asked about the outcome of the police investigation that it became apparent there had been no further contact from the police about any investigation. At that point it was decided that any re-referral to the police would be more likely to compromise the appellant and increase her vulnerability. So no further action was taken.
70. In Ms Brown’s last report dated 3 September 2010 she expressed her grave concerns about the appellant’s current welfare, in particular her homelessness and mental health. She had been provided with hostel accommodation funded by the Southall Black Sisters from 11 June to 14 August 2010. After two weeks living alone her mental health started to deteriorate and she became emotional and despondent. Ms Brown had had a number of conversations with the appellant since 15 August when the appellant said she had nowhere to stay and often had to wait in train stations until late at night when one of her friends could smuggle her into their house without their landlord/employer seeing. She had often slept on the sofa all day when visiting Kalayaan; she frequently suffered from intense headaches and often felt so anxious she vomited. On one occasion she passed out and was taken to hospital by ambulance. Ms Brown stated that she had seen an alarming and rapid deterioration in the appellant’s condition culminating in thoughts of suicide. It was therefore a priority that the appellant be provided with accommodation and access to support services including counselling.
71. The most recent report from Kalayaan is dated 10th September 2013 and can be found annexed to the skeleton argument of Miss Robinson. The author of this report has worked at Kalayaan since 2005 and is currently employed as a community advocate. She has given evidence on the vulnerability of migrant domestic workers to trafficking to the Joint Committee on Human Rights’ enquiry into human trafficking (report produced in 2006) and had led on the participation of the Home Office pilot on labour trafficking and had provided written and oral evidence to the Home Affairs Committee enquiry into human trafficking. She has also delivered training on trafficking for domestic servitude and has produced publications in this area. She first met with IR when she registered with Kalayaan on 24th June 2008, she then handed the case over to Camilla Brown who had produced the earlier reports that have been summarised and had had no direct contact with IR since she returned to an informal visit in July 2013. At page 3 of the report, the author of the report noted that she had read all the documents produced including the reports of Dr Abas, Dr Mitchell and Professor Good. When dealing with the Appellant’s vulnerability to trafficking from Sri Lanka, she noted that given what had already been accepted in her case, it was her opinion that IR would not be able to cope with removal to Sri Lanka and that
“Such a move would certainly cut her off all of the support she had slowly built up. Her recent history demonstrates all too clearly how any change or insecurity results in significant and rapid deterioration in her mental health and her ability to cope. If IR was returned to Sri Lanka I consider that she would be more vulnerable than ever to re-trafficking.”
72. The report sets out Article 14 of the Council of Europe Convention on Action Against Trafficking in Human Beings (CoE Convention) and residence permits. In that respect, it was noted that on the facts of IR’s case that removal from the UK would result in a worsening of her personal situation and that any mention of return to Sri Lanka had resulted in an increase in her levels of distress and had been noted by her GP. In the past, a change in accommodation had resulted in self-harming and her status as a vulnerable person “is without question”. The care plan which included regular reviews of her medication, support to access services and ongoing counselling does not appear to be continued if removed from the UK and that long-term input had been recommended by her doctors and that that could not be replicated in Sri Lanka. In those circumstances it was stated that IR’s personal situation necessitated a residence permit and that the Stolen Smiles report on the physical and psychological health consequences of women and adolescents trafficking in Europe recommends in point 3A that states “do not return women to states where the healthcare services are inadequate to meet their health needs”. The report went on to state that the Appellant’s
“Recent history in the UK also demonstrate clearly how badly any changes and uncertainty has impacted on her stability and ability to cope. Her case notes with Kalayaan made clear their continued increased concerns for her wellbeing at the last, informal meeting with her when she came to visit on 9th July 2013 it was clear to me that she was still emotional and vulnerable”.
The report concluded that the Explanatory Report to the CoE Convention indicated that a person in IR’s circumstances could qualify for a residence permit under Article 14 and that it was the view of Kalayaan that a grant of residence permit to IR would be justified (without prejudice to her right to asylum, humanitarian protection or other types of leave) as it would be unreasonable to compel her to leave the UK in view of the evidence of the risks to her health and safety if faced with the prospect of return or following her return to Sri Lanka.
The Expert Reports of Clara Skrivankova dated 20th July 2010 and 4th January 2011, Trafficking Programme Coordinator for the Antislavery International
73. Klara Skrivankova is the Trafficking Programme Coordinator of Anti-Slavery International, an organisation which has consultative status with United Nations and participatory status with the Council of Europe. She is responsible for the anti-trafficking work of the organisation. Anti-Slavery International is a member of the Stakeholder/Consultative Group on Human Trafficking chaired by the Home Office and the Solicitor General. Her reports were based on documentary material only.
74. The first of Ms Skrivankova’s reports was directed at (i) whether the appellant was a victim of trafficking as defined by the CAAT among other things, (ii) the risk to someone in the appellant’s position and (iii) the issue of vulnerability, bearing in mind the respondent’s first trafficking decision. She came to the conclusion that it was obvious the appellant had been trafficked. As to the appellant’s vulnerability Ms Skrivankova agreed with Dr Egnal’s conclusion that the appellant’s anxiety, depression and vulnerable personality would make it more difficult for her to protect herself from future harm and exploitation. The relevant vulnerability factors identified by Ms Skrivankova are divided into those arising from the situation in Sri Lanka and those particular to the appellant. The former comprise (i) trafficking in Sri Lanka and reported cases of forced labour to which many women were subjected after accepting a job in the Middle East, (ii) non-existent long assistance for trafficked women in Sri Lanka, (iii) lack of employment opportunities, and (iv) fragile stability in Sri Lanka. The latter comprise (i) the fact that the appellant had already been trafficked, (ii) she presented as immature and vulnerable, and (iii) she needed the care of others. She notes that the UK authorities would have no control or ability to intervene to ensure the appellant’s protection once she returned to her country of origin. There was very little available for victims of trafficking in Sri Lanka.
75. Miss Skrivankova dealt with the issue of the late disclosure of her sexual abuse in the second report, noting that such late disclosure was very common where sexual abuse is used as a method of violence in cases of trafficking for forced labour. She found her behaviour to be typical of a traumatised victim of trafficking. In her report she stated that it is recognised that re-trafficking is a common feature of the crime of trafficking. A person can be re-trafficked by the same traffickers to the same country or to a different country, re-trafficked internally, or targeted by a different trafficker or organised gangs. Trafficked persons who return home may have various problems (emotional and psychological), illnesses and be afraid of police and officials. Fear of retaliation or persecution by the traffickers is not uncommon. If the problems are not solved and the returnees not supported it is likely they will be abused and exploited again, and sometimes trafficked once more.
76. Miss Skrivankova also considered the obligations identified under CAAT in her report.
The Report of Professor Anthony Good, dated 15th December 2010 and 20th August 2013 (See Tab F of the Appellant’s Bundle)
77. Professor Good has provided two reports. He is Professor Emeritus in Social Anthropology at the University of Edinburgh, where he was a founder member of the Centre for South Asian Studies and Head of the School of Social and Political Science. He has made fact-finding visits to Sri Lanka in August 2003 and February 2006. He made a further visit in February 2010. He has not met or communicated with the appellant.
78. The updated report can be found at pages 28 to 43 of Tab F. The report continued to note that he had never met or communicated with IR and that the information contained in his report came from the documentation supplied by her legal representatives. The report took into account the COIR reports including March 2012 report, the 2013 March bulletin and the April 2012 Operational Guidance Note, the 2013 US State Department Report and the 2011 UN Expert Report on accountability in Sri Lanka. It also took into account the UNHCR’s December 2012 eligibility guidelines for assessing the international protection needs of asylum seekers from Sri Lanka. The factual findings of the First-tier Tribunal which have been preserved by the Upper Tribunal are set out at pages 31 to 33.
79. As to the rights and status of women in Sri Lanka, Professor Good has set out information in this regard from the April 2013 US State Department Report relating to rape and domestic violence. It was noted that in respect of rape and domestic violence, whilst the law prohibited rape and domestic violence it was not enforced effectively. Sexual assault, rape and spousal abuse were pervasive societal problems. The law specifically addresses sexual abuse and exploitation, and it contains provisions in rape cases for an equitable burden of proof and stringent punishments. Marital rape is considered an offence only in cases of spouses legally separated. Domestic violence was believed to be widespread, although discussion of the problem was not common. Whilst in theory the law could address some of the problems of sexual assault, many women’s organisations believed the greater sensitisation of police in the judiciary was necessary to see progress in combating these crimes.
80. Police have recorded 900 incidents of rape during the first six months of the year, but reported incidents were unreliable indicators of the degree of this problem because many victims were unwilling to file reports. Services to assist victims of rape and domestic violence such as crisis centres, legal aid and counselling were generally scarce due to lack of funding. Human rights groups in Northern districts allege that widows of men killed in the conflict often became victims of prostitution because of their economic vulnerability.
81. The report at paragraphs 20 to 23 considered the evidence relating to gender based violence in Sri Lanka from sources such as the Immigration and Refugee Board of Canada (see paragraph 21). It was noted that in assessing the general situation, the IRB’s report stated:-
“Sources report that sexual and domestic violence directed towards women are ‘pervasive’ and ‘serious’ problems in Sri Lanka. An article by the United Nations Integrated Regional Information Networks (IRIN) quotes a representative of the UN population fund as saying that ‘the prevalence of gender based violence is reported to be high and widespread, cutting across class, race, ethnicity and religion’. However, a 2010 Asian Human Rights Commission Report on the state of human rights in Sri Lanka states that young women who belong to lower social castes or ethnic minorities are more likely to become victims of sexual abuse.
Sources also indicate that violence against women in Sri Lanka is increasing ... in a report on the situation of women in the North and East of the country, the International Crisis Group notes that there are indications of violence against women and children throughout Sri Lanka has ‘worsened’ as a result of the civil war.”
Paragraph 22 of the report quoted from the current US State Department Report regarding the numerical incidents of violence against women. It was noted that “police stations nationwide routinely record between 8,000 and 10,000 cases of violence against women per month”. An article from the IPS News Agency however stated that the Police Bureau for the Protection of Women and Children receive some 8,000 to 10,000 of “domestic violence” annually. The report also stated that “violence crimes against women in Sri Lanka are greatly underreported and that the number of cases that are reported are not representative of the number of actual incidents”. Several sources explained that a culture of silence surrounds acts of gender based violence in the country.
82. Paragraphs 24 to 25 deal with the situation of trafficking in Sri Lanka and the most recent US State Department Report June 2013 is set out:-
“The government of Sri Lanka does not fully comply with the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so. Despite these measures, the government failed to demonstrate evidence of increasing overall evidence to address human trafficking over the previous reporting periods; therefore, Sri Lanka is placed on Tier 2 watch list. Law enforcement efforts and victim protection, particularly identification, were very weak during the reporting period. The government, however, continued modest prevention efforts, including convicting one labour recruiter who committed fraudulent recruitment, continued inter-ministerial coordination, and developed a national action plan. Despite trainings in the partial implementation of victim identification procedures, the government did not report that it identified any trafficking victims. Government officials confused trafficking in persons with other crimes, such as human smuggling, illegal immigration and prostitution; this confusion impeded law enforcement and victim protection efforts.”
83. The mental health facilities in trafficking support services in Sri Lanka are set out at paragraphs 26 to 31. In that regard, the June 2003 report from the US State Department Trafficking in Persons Report (USTiP) covered victims of trafficking generally and little was explicitly relating to the trafficking of workers. It was noted by Professor Good that the June 2013 report did not report any significant improvements. It stated;
“The government made limited progress in protecting victims of trafficking during the year. The government did not approve its draft standard operating procedures (SOPs) for the identification of trafficking victims and their referral to protective services; consequently trafficking victims may have been inappropriately incarcerated, fined or otherwise penalised for unlawful acts committed as a direct result of their being trafficked. ...” [Set out information from the US State Department Report directly].
84. Professor Good then dealt with the cultural implications of trafficking and sexual abuse at paragraphs 32 to 46 drawing on what he had stated in the first report. It was noted previously he had stated:-
“The problems will be multiplied in IR’s case by the fact that she has been working overseas because people will assume that she has at least been ill-treated and very possibly sexually molested. The fact that this is indeed true in her case will make matters still worse because of the risk that her experiences may become public knowledge, which will further reinforce the stereotypes regarding her sexual behaviour”.
In respect of this Professor Good now provides further analysis and reasoning and makes three points; two general and one more specific. At paragraph 36 the first point Professor Good makes is as follows, namely that there is a cultural assumption that women are by nature sexually active and will initiate sexual activity if left unchaperoned in the presence of the man. Professor Good states that
“This assumption pervades South Asian culture, and accounts for a big deal of the effort that families put into restricting the movements of their unmarried daughters, especially into preventing them from being in situations where their reputations – and hence their own marriage prospects and even those of their sisters – can be damaged. This also helps explain why it is often the victim of rape who is blamed, as in IR’s case regarding her rape in childhood and why her own family, including two of her sisters, now view her with such hostility.”
85. The second point made by Professor Good is that
“There is a widespread feeling among Sri Lankans that those who live abroad, especially women but also men to some extent – lose touch with their ethnic identity and culture. For obvious reasons, given that they are far more numerous, most of the direct evidence concerning Sri Lanka relates to Tamils rather than Sinhalese (there is hardly any research on diaspora Sinhalese), but in my opinion the same applies to both groups because it is a phenomenon found generally amongst migrant South Asians”.
At paragraph 38 Professor Good makes reference to research on Sri Lankan Tamils in Norway described in a 1999 publication and further at paragraph 41 makes reference for marriage partners from “back home” are by no means confined to Sri Lankan Tamils but are strongly evident amongst other South Asian diasporic groups including those in the UK. In this respect he makes reference to the decision of Pakistani nationals in the UK (see paragraph 41). In the opinion of Professor Good at paragraph 42, for both men and women living outside Sri Lanka, the principle reason for preferring marriages with persons from Sri Lanka itself is to maintain close contact with their own cultural identity from which they fear become progressively isolated. He states “the more general point I would make therefore is that living abroad is, of itself, seen by South Asians as entailing loss of cultural awareness and identity”. By way of example he notes a news report concerning a main annual Hindu temple festival celebrated in August 2013.
86. The third point made by Professor Good is that
“Women who have been abroad are invariably suspected of sexual impropriety. This is particularly evident in the case of unmarried women of course, because of the concern of a damage to their future marriage ability, but applies to all women to some degree, even those working away from home in other parts of Sri Lanka”.
Professor Good then refers to the research of Sri Lankan women working as domestic servants in Gulf Countries at paragraph 43.
87. In respect of this particular Appellant, it is Professor Good’s opinion that in her case societal attitudes would
“Certainly impact adversely on her situation. First, she was a victim of familial rape. I am not clear how widely known that is amongst her relatives, though it seems likely that it is known about in general terms, given the very public aspersions cast on her sexual propriety by her mother-in-law. She is therefore a woman whose sexual reputation is already severely damaged in the eyes of many relatives and neighbours, who will certainly be predisposed to believe the worst of her. Secondly, the circumstances of her prolonged stay overseas are bound to excite comment. The fact that she spent so long in the UK, yet has not been working since the very beginning of her stay, is bound to be the subject of intense speculation in a face to face community like Sri Lanka, where everyone knows everyone else’s business and gossip and rumour are rife.”
It is noted that she will “certainly face frequent interrogations from neighbours and those relatives with whom she still has social contact”. Given her vulnerable status described in the medical reports, Professor Good notes that “I find it inconceivable that she would be able to keep secret the broad circumstances surrounding her stay and the difficulties she has faced, still less her need for psychiatric treatment, which is itself strongly stigmatised in Sri Lanka”.
88. At paragraphs 47 to 50 Professor Good deals with state protection from familial sexual abuse and makes reference to the Canadian IRB report. He noted that the situation described in ER1 still persists despite the 2005 act and the training of the police and other law enforcement and judicial staff. As for NGO provision, he found no evidence of significant enhancement of provision beyond that described in paragraphs 77 to 78 of ER1. It still has just one victim’s shelter accommodating up to fifteen women.
The Law:
89. In coming to my determination I have considered the totality of the evidence before me and I have applied throughout the lower standard of proof applicable to asylum claims. The burden is on the appellant to show that she has a well-founded fear of persecution or that there are substantial grounds for believing that her rights under the Human Rights Convention would be breached. A person is a refugee and, therefore, entitled to asylum pursuant to Directive 2004/83/EC, (the Qualification Directive) if, (in the words of Article 1A of the Geneva Convention relating to the Status of Refugees) owing to well-founded fear of being persecuted for reasons of race, religion, nationality or membership of a particular social group or political opinion, he is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country.
90. A person not entitled to refugee status may nevertheless be eligible for ‘subsidiary’ protection pursuant to Article 2 of the Qualification Directive.
91. Article 15 defines the serious harm as follows:
“Serious harm consists of:
a. Death penalty or execution; or
b. Torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or
c. Serious and individual threat to a civilian life or person by reason of indiscriminate violence in situations of international or internal armed conflict.”
Article 15 is given effect in domestic law by paragraph 339C of the Immigration Rules, which provides as follows:
“339C. A person will be granted humanitarian protection in the United Kingdom if the Secretary of State is satisfied that:
i. he is in the United Kingdom or has arrived at a port of entry in the United Kingdom;
ii. he does not qualify as a refugee as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;
iii. substantial grounds have been shown for believing that the person concerned, if he returned to the country of return, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail himself of the protection of that country; and
iv. he is not excluded from a grant of humanitarian protection.
Serious harm consists of:
a. the death penalty or execution;
b. unlawful killing;
c. torture or inhuman or degrading treatment or punishment of a person in the country of return; or
d. serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.”
92. Article 9 of the Qualification Directive, which defines ‘Acts of Persecution’, reflects recital 20 in providing at Article 9(2) that acts of persecution as qualified in paragraph 1, can, inter alia, take the form of “acts of a gender-specific or child-specific nature”.
93. Insofar as relevant article 4 of the ECHR states:
1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
94. Article 8 of the ECHR states:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
95. In assessing the Appellant’s article 8 claim the Tribunal must consider the well established 5 stage test set out in Razgar [2004] UKHL 27 (i) whether the removal of the appellant to Sri Lanka consequent upon the respondent’s decision to refuse leave would be an interference with the exercise of her right to respect for her private life, (ii) if so, whether such interference will have consequences of such gravity as potentially to engage article 8, (iii) if so, whether such interference is in accordance with the law, (iv) if so, whether such interference is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others, and (v) if so, whether such interference is proportionate to the legitimate public end sought to be achieved.
96. As regards the CAAT, it was ratified on 17 December 2008 and brought into force on 1 April 2009. Article 4 sets out various definitions. Insofar as relevant these are as follows:
For the purposes of this Convention:
(i) “Trafficking in human beings” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
(ii) The consent of a victim of “trafficking in human beings” to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used; ...
e. “Victim” shall mean any natural person who is subject to trafficking in human beings as defined in this article.
97. Article 10 of the CAAT provides as follows:
2. Each Party shall adopt such legislative or other measures as may be necessary to identify victims as appropriate in collaboration with other Parties and relevant support organisations. Each Party shall ensure that, if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence provided for in Article 18 of this Convention has been completed by the competent authorities and shall likewise ensure that that person receives the assistance provided for in Article 12, paragraphs 1 and 2. ...
98. Article 12 of the CAAT sets out the assistance to be given to victims. Insofar as relevant it provides as follows:
1. Each party shall adopt such legislative or other measures as may be necessary to assist victims in their physical, psychological and social recovery. Such assistance shall include at least:
(i) standards of living capable of ensuring their subsistence through such measures as: appropriate and secure accommodation, psychological and material assistance;
(ii) access to emergency medical treatment;
(iii) translation and interpretation services, when appropriate;
(iv) counselling and information, in particular as regards their legal rights and the services available to them, in a language that they can understand;
(v) assistance to enable their rights and interests to be presented and considered at appropriate stages of criminal proceedings against offenders; ...
2. Each Party shall take due account of the victim’s safety and protection needs. ...
99. Article 14 of the CAAT deals with the grant of a residence permit. Insofar as relevant it provides as follows:
1. Each Party shall issue a renewable residence permit to victims, in one or other of the two following situations or in both:
(i) the competent authority considers that their stay is necessary owing to their personal situation;
(ii) the competent authority considers that their stay is necessary for the purpose of their co-operation with the competent authorities in investigation or criminal proceedings. ...
100. Article 16 of the CAAT deals with the repatriation and return of victims. Insofar as relevant it provides as follows:
2. When a Party returns a victim to another State, such return shall be with due regard for the rights, safety and dignity of that person and for the status of any legal proceedings related to the fact that the person is a victim, and shall preferably be voluntary. ...
5. Each Party shall adopt such legislative or other measures as may be necessary to establish repatriation programmes, involving relevant national or international institutions and non governmental organisations. These programmes aim at avoiding re-victimisation. Each Party should make its best effort to favour the reintegration of victims into the society of the State of return, including reintegration into the education system and the labour market, in particular through the acquisition and improvement of their professional skills. ...
6. Each Party shall adopt such legislative or other measures as may be necessary to make available to victims, where appropriate in co-operation with any other Party concerned, contact information of structures that can assist them in the country where they are returned or repatriated, such as law enforcement offices, non-governmental organisations, legal professions able to provide counselling and social welfare agencies. ...
Conclusions:
101. The central issue concerns whether the Appellant is at risk of trafficking or re-trafficking (under the Refugee Convention, or in the alternative humanitarian protection, and Article 3 of the ECHR).
102. The central submission on behalf of the Secretary of State is that the Appellant is not at risk of re-trafficking on return to Sri Lanka because the factual account demonstrates that she was not trafficked from Sri Lanka but Kuwait and that no identifiable group or individual have been identified in that country to have been involved in the trafficking. I have considered a great deal of evidence for the purposes of this determination including the country materials, expert medical evidence (both psychiatric and psychological evidence), evidence from organisations already involved in the provision of assistance or services to those who have been victims of trafficking and are well versed as to the needs of such victims and the consequences upon return.
103. The Council of Europe Convention on Actions against Trafficking in Human Beings was signed by the UK Government on 23rd March 2007 and ratified on 17th December 2008. It came into force on 1st April 2009. The definition of trafficking is set out at Article 4 of the Council of Europe Convention and provides:-
“Trafficking in human beings shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of slavery, servitude or the removal of organs.
The consent of a victim of ‘trafficking in human beings’ to the intended exploitation set forth in sub-paragraph (a) of this Article shall be irrelevant where any means set forth in sub-paragraph (a) have been used;”
104. The meaning of trafficking as set out above was given in Article 3(a) of the Palermo Protocol, which in definition was adopted by the Anti-Trafficking Convention.
105. The definition of re-trafficking is referred to in the IOM Human Trafficking Research document entitled ‘The Causes and Consequences of Re-Trafficking: Evidence from the IOM Human Trafficking Database’ (dated 2010 found annexed to the Appellant’s skeleton argument). At paragraph 1.1 it reads as follows:-
“The term “re-trafficking” is a problematic one, and wider debate within research on trafficking is needed to reach a common understanding of the term and to assist accurate comparison between data sets, along with facilitating improved case management. It is difficult to determine at which stage a person can be understood to have experienced re-trafficking. In literature, the term is commonly used to describe a situation where a person has returned to his/her country of origin and is then trafficked from there for a second time. However, this understanding is problematic, as it fails to include VoTs who do not return to their countries of origin prior to being trafficked for a second time.
The data in this paper relies on the following working definition of re-trafficking:
Re-trafficking shall mean a situation in which a person has been trafficked on one occasion as set forth in the definition provided in the United Nations Palermo Protocol; has then exited that trafficking situation by any means; and has then later re-entered another trafficking situation, again as stated in the United Nations definition.
- Exit (for the IOM-assisted caseload) is by escape with or without the help of others, or the interception of the authorities or other organizations.
- Exit may or may not involve return to the place/country of origin or a place/country of resettlement.
- Exit (for the IOM-assisted caseload) may be for any duration of time.
- The second experience of trafficking may involve circumstances similar to or entirely different from those in the previous experience. The trafficking may be for the same or a different purpose, with the same or different trafficker(s) and to the same or different geographical region.”
106. It goes on to state:-
“The above notwithstanding the definition could benefit from increased discussion amongst anti-trafficking professionals. The limitations of the proposed definition lie ultimately with the difficulties inherent in defining when someone can be considered to have successfully exited a trafficking situation. A broad definition of exit is proposed in this research paper; exit from trafficking is considered to have taken place where any significant escape from a trafficking situation has taken place. This includes situations where trafficked persons escape trafficking situations temporarily due to the intervention of law enforcement agencies or NGOs in an official capacity, but have not achieved longer term exit from trafficking situations. These cases are included because it is believed that these encounters, under different circumstances, may have, or ought to have led to the identification of the individual as a trafficked person and thus to the offer of appropriate assistance. Subsequently, in such cases, there is a potential for longer term exit from the realities of trafficking situations. Yet, in practice, encounters with law enforcement agents or NGOs often do not involve appropriate referrals for assistance; therefore, they do not necessarily lead to longer term or sustainable exit from trafficking. This is due to a number of factors, which will be explored in depth throughout this paper.”
107. The definition of trafficking in the Palermo Protocol distinguishes three interdependent elements that must be cumulatively present in a trafficking scenario. The elements are referred to as actions, means and purpose.
Trafficking in persons is:
The action of recruitment, transportation, transfer, harbouring or receipt of persons.
By means of a threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability, or giving payments or benefits to a person in control of the victim.
For the purposes of exploitation, which includes exploiting the prostitution of others, sexual exploitation, forced labour, slave or similar practices, and the removal of organs.
108. There is no dispute on the facts of this appeal that the Appellant is a victim of trafficking for the purposes of domestic servitude and that she was trafficked into the UK on 4th May 2008 and remained in domestic servitude for a period of six weeks until she escaped from the home on 17th June 2008. The conditions in which she was working were exploitative, including having to work fifteen to seventeen hours per day, seven days per week, having to sleep on the floor in between the beds of two children; not being allowed out of the house or at all; she was made to get up at 1 o’clock in the morning to clean the fridge or undertake other arbitrary tasks, not able to have her passport and having had her papers and her passport being taken from her as methods of control by those in the household. It was further accepted that shortly after her arrival she was subject to serious sexual abuse by a member of the household. She escaped those conditions and in the third week of June 2008 registered with Kalayaan on 24th June 2008, a charity that supports and advises migrants who enter the UK as domestic visa workers. In the early contact that they had with the Appellant, they found her account and presentation to be consistent with that of a victim of trafficking for domestic servitude.
109. The Appellant had been identified as a potential victim of trafficking during the “trafficking pilot” run by the Home Office in the summer of 2008. As set out earlier, the Council of Europe Convention on the Action against Trafficking in Human Beings (hereinafter referred to as the “Anti-Trafficking Convention”) was signed by the UK Government on 23rd March 2007, ratified on 17th December 2008 and came into force on 1st April 2009. In the period between the end of the pilot and the National Referral Mechanism (“NRM”) there was no specialised or formal support available for victims of trafficking for domestic servitude (see evidence of Ms Skrivankova [23]) and therefore it appears that the Appellant had little support between 2008 and 2010 relying on that available from Kalayaan and assistance from friends. During that period, the evidence refers to the Appellant having unstable accommodation, having lived in twelve places (see evidence Dr Egnal) until being rehoused by the Salvation Army in County Durham. It was during that period of time that the Appellant disclosed that she had been the subject of sexual abuse by a member of the household during the course of her employment. It was also accepted that the Appellant had been a victim of sexual abuse in Sri Lanka. The medical reports earlier summarised in the determination demonstrate that the Appellant was first diagnosed as having post-traumatic stress disorder in June 2010 (Dr Egnal) and that she was suffering from anxiety, stress and depression and to be at an increased risk of suicide and that she was a physically and emotionally vulnerable young woman. Dr Abas’s (psychiatrist) professional opinion concurred with that of Dr Egnal, noting in 2012 that she suffered from PTSD, was suffering from moderate to severe depression, she had personality vulnerabilities, was of borderline low intelligence and that her condition had deteriorated since 2010 and that she required support for daily functioning. Dr Abas found that the Appellant was a “very vulnerable and fragile person” (see report [29]). Since that time, the Appellant has been the subject of ongoing assessment and treatment by the specialised Community Health Team (comprising of a GP, specialised counselling, outreach and social care) confirming the high level of need of care that the Appellant currently requires.
110. The consensus of medical opinion is that her medical condition and the symptoms that she has presented with are consistent with having been a victim of trafficking as being the subject of sexual abuse (see Dr Abas paragraph 7) and in the form of intrusive thoughts re-experiencing phenomena and flashbacks. Two years after her initial diagnosis Dr Abas confirmed that the Appellant had not recovered and that she had gone on to deteriorate (see [23]; Tab E) and her vulnerability.
111. It is not in dispute between the parties that in view of her experiences as outlined above the Appellant is a vulnerable woman who suffers from significant mental health problems.
112. In my view the submissions made on behalf of the Respondent fail to consider that the question the Tribunal must ask itself is not where the Appellant has been trafficked from but whether there is a real risk or reasonable likelihood of the Appellant being the subject of trafficking in the light of the Appellant’s individual personal characteristics, her previous history and situation and by taking into account the prevailing conditions of the country to which she is to be returned.
113. It is right to observe that some of the evidence before the Tribunal referred specifically to the risk to those who had previously been trafficked from the same country (see the IOM report) and the subsequent risks from that but this does not mean that there necessarily should be a distinction drawn between the proposed return to a country where a person has been trafficked and the return to a country where a person has not been trafficked. Such a view would not take into account the individual circumstances relating to the particular Appellant concerned, their experiences, background and characteristics. Whether the country they are returning to is the initial country from which they were trafficked is irrelevant; more important are the individual risk factors that make a person more vulnerable to trafficking or exploitation and as in this case, if the country they are returning to is not able to provide adequate protection or services to a vulnerable person who was likely to be at risk. I have therefore considered this aspect of the case in making an assessment of whether there is a real risk or reasonable likelihood that the Appellant faces a risk of trafficking or being trafficked again, having already experienced such action. I have considered the Appellant’s personal characteristics when reaching a conclusion on this issue.
114. The medical evidence that I have previously summarised demonstrates that the Appellant had been a victim of trafficking in the UK additionally that she has been the victim of serious sexual abuse. Not only that, the evidence demonstrates also that she has a background of sexual abuse in her own home country. The medical evidence which is not challenged on behalf of the Respondent, confirms her ongoing diagnosis of PTSD, moderate to severe depression, anxiety, incidents of self-harm and a moderate risk of suicide. The Respondent has accepted before this Tribunal that the Appellant is by reason of her experiences and her own characteristics a vulnerable single woman.
115. In making an assessment as to how this impacts upon the risk on return I have taken into account the reports of Ms Skrivankova and those of the Poppy Project. The authors of both of those reports have significant experience in the area of trafficking. Ms Skrivankova has a background in the area of anti-trafficking for the past ten years and has been involved in providing assistance to many trafficked persons. Since 2005 she has been working in the Anti-Slavery International as a trafficking programme co-ordinator, Anti-Slavery Intervention is an international human rights organisation in the UK that deals solely with the issue of slavery and trafficking. Her experience is set out fully at page 17 of her report.
116. The Poppy Project is the largest independently funded service in the UK which provides support and accommodation to female victims of trafficking and to date have received 2,015 referrals all of whom have been trafficked into and exploited in the UK. The project has accepted 42.1% for support whom they have deemed to be credible. The Appellant here has been deemed to be a credible victim of trafficking.
117. Neither authors of those reports have been called to give oral evidence before the Tribunal and in the case of Ms Skrivankova her report has not been the subject of any criticism by Mr Melvin. In respect of the report by the Poppy Project, he has submitted that whilst they are a respected organisation, more weight should be placed on the medical evidence as they are trained medical officials. In my view the reports from Ms Skrivankova and the Poppy Project are reports that contain credible and reliable evidence concerning the area of trafficking and the risks to those who have been subjected to such action in the past and the future risk of such conduct. The Poppy Project has the advantage of having the “on ground” experience of dealing and providing support for victims of trafficking and from their own research which is generated from the experiences of those that they assist and support. Both reports make reference to the particular vulnerabilities that the Appellant presents with and the risks that accrue from this. I accept Ms Skrivankova’s assessment of the Appellant’s vulnerability, again that has not been challenged by the Secretary of State.
118. In assessing her vulnerability it is important to recognise that such vulnerability refers to the condition of the person in a specific context. There may be external conditions for individuals as well as the coping mechanisms of an individual that enable the person to protect themselves against negative impacts from those external conditions (see [25], Ms Skrivankova’s report). Vulnerability is the characteristic of victims or potential victims that is the most commonly exploited by human traffickers. The fact that vulnerable persons are targets of traffickers was acknowledged by the UN in the Protocol to Prevent Suppression and Punishment Trafficking in Human Beings, especially women and children (supplementing the UN Convention on Transitional Organised Crime (“UNTOC”). The vulnerable situation of a trafficked person is assessed with a personal family history, the context and impact of the trafficking experience and the situation in their country of origin. Pre-existing vulnerabilities of those who have been trafficked (such as the Appellant in this appeal) are exacerbated by the trafficking experience and makes them even more vulnerable to further exploitation (see report of Ms Skrivankova [26]).
119. The observations made in the report of the Poppy Project are supported by the medical evidence concerning the Appellant’s vulnerability and her own personal characteristics. The observations made by the Poppy Project of the Appellant in September 2012 are mirrored in the description of the presentation of the Appellant seen by the medical professions since 2010. In respect of the risk of trafficking both Ms Skrivankova and the Poppy Project consider that the risk to repatriated victims is particularly high. 21% of the women in the sample study disclose that they were re-trafficked prior to being referred to the Poppy Project. Women are often re-trafficked after return either by their original traffickers (of course this would not apply to the Appellant) but also by entirely new traffickers. Whilst the statistic of 21% is not further broken down, that is, it does not say which percentage of women were re-trafficked from a country from which they had not been originally trafficked from, the report does consider the background of such risks and in the context of a person’s vulnerability. The report highlights the need to assess the risk of return in the light of the person’s own characteristics. In this case the Appellant is a credible victim of trafficking for domestic servitude and has been a victim of sexual exploitation and the significant trauma she has experienced all of which has had an impact on her future safety and needs.
120. The further elements to be considered in the assessment of risk relates to the “situation” or vulnerability of the Appellant and the socio economic and cultural conditions in the host country, namely Sri Lanka. In this context, the Tribunal has two reports from Professor Good. He has not given evidence before the Tribunal therefore I have not had the opportunity to hear that evidence or any challenges made to it. Nonetheless Mr Melvin has made submissions upon his reports and in the light of evidence given by Professor Good in other appeals before the Upper Tribunal (see paragraph 9 of the skeleton argument). In this context I take into account that Professor Good has not been in Sri Lanka since 2010 nor that he has either met or communicated with the Appellant for the purposes of this report. Mr Melvin quotes a recent decision of the Tribunal in which Professor Good gave evidence (GJ (Post civil war returnees) Sri Lanka UKUT 319 [2013] where the Tribunal noted that Professor Good was last in Sri Lanka in 2010 and it was noted that in respect of information concerning airport procedures, he was not able to assist the Tribunal as his information was not up-to-date. It is important to consider that these observations were made in a different factual and evidential context to that concerning the present appeal. Here Professor Good is referring to his experience in general terms relating to his expertise relating to social anthropology. Nonetheless, some of his evidence is dated. For example, when considering the issue of social stigma attaching to victims of rape and sexual assault, it is based on a study of 1992 and not based on any more recent research, bearing in mind the great upheaval that there has been in Sri Lanka since 1992. The second report of Professor Good sets out the country information relied upon and reference is made to the US State Department Report on Trafficking 2013 (see paragraphs [24] and [25]). It is not suggested on behalf of the Respondent that that is incorrect and that the conclusions at paragraph 31 that there were no significant improvements in protecting victims of trafficking were also based on the 2013 US State Department Report.
121. Professor Good makes three points concerning the cultural implications of trafficking and sexual abuse. I have already summarised earlier in this determination the two reports of Professor Good. He has given consideration and weight to the cultural implications of trafficking and of sexual abuse and the social stigma that attracts to victims of rape and sexual abuse in Sri Lanka. The points that he makes are threefold. Firstly, that there is a cultural assumption made that women by their nature are sexually active and will initiate sexual activity if left unchaperoned in the presence of a man. Secondly, those women who live abroad, especially women, but also men to some extent, lose touch with their ethnic identity and culture. Thirdly, women who have been abroad are invariably suspected of sexual impropriety, that is particularly evident in the case of unmarried women because of the concern over damage to their future marriageability but applies to all women, even those working away from home in other parts of Sri Lanka.
122. In his first report, Professor Good asserted that people would assume that as the Appellant had been working overseas, she had at least been ill-treated or very possibly sexually molested. I make the following observations from that evidence. In respect of his second point concerning those who live abroad losing touch with their ethnic identity, that is based on source material from a 1990 study of Tamils in Norway. There is no more specific research done with Tamils in any other country and seems to be based on a generalised statement. I would also concur with the submission made by Mr Melvin that in respect of the third point, namely that women who have been abroad are suspected of sexual impropriety, is also a generalisation. As Mr Melvin points out, many women in Sri Lanka have taken up positions as domestic workers overseas and it cannot be the case that all overseas workers will have been thought of as having been sexually abused or ill-treated simply as a result of having taken the opportunity to work abroad and to provide for their families.
123. Notwithstanding those observations, I make the following conclusions upon the evidence of Professor Good. There are undoubtedly cultural implications including social stigma attached to those who have been subjected to sexual abuse and trafficking. The report makes reference to the country materials concerning the issue of social stigma attached to victims of rape and sexual assault (see the report at [20], [21], [22], [23]). In the Appellant’s case, it has been accepted that she has been the subject of familial rape and that this will impact adversely on her situation. The question remains – how widely is that known amongst the relatives and those in the village? Professor Good is not certain as to who knew or does know of the Appellant’s experiences (see [45]; page 41). However the evidence demonstrates that this is known amongst the relatives who give the appearance of being aware of it and that the Appellant’s mother-in-law has knowledge of it after the Appellant got married (see [21] of the FTT determination). Thus it is said by the Appellant that her mother-in-law did know and that it is also not confined to her mother-in-law but is widely known that she was not a virgin when she married. Against that background, there is a real risk that the Appellant will be seen as a woman whose reputation is already damaged (as Professor Good observed).
124. I also consider that it is likely to be known that she has been out of Sri Lanka for a prolonged period. Whilst I do not attach any weight to the general view set out in the report of Dr Good that women who work abroad or work away from Sri Lanka are thought of as having been sexually abused/ill-treated ([72]), I would accept that a lengthy absence is likely to be the subject of speculation and in particular the prolonged stay in the United Kingdom and that in those circumstances it is also likely that she will be questioned about them by relatives and others who are in close proximity to her, whether she was in her home area or living in another area within Sri Lanka. I would not use the word “interrogated” as Professor Good has, but that there is a reasonable likelihood that she would face questioning about her experiences. This would most likely have an impact upon her general vulnerability given her current medical health which is not in dispute and it is unlikely in my judgment that she would be able to keep secret the true circumstances and the nature of her experiences. The country materials demonstrate that such disclosures are the subject of social stigma in Sri Lanka and are in those circumstances likely to increase this Appellant’s vulnerability.
125. In this context, the report of Professor Good is supported by the IOM report (already referred to). At paragraph 4.5 entitled “Returning Home” the report makes reference to the research concerning the effect of stigma on a woman’s ability to reintegrate into their former communities and families after such an experience and recognises the link that that may have with re-trafficking whereby the stigma heightens the vulnerability to further trafficking experiences upon a victim’s return. This is the evidence that Professor Good refers to in his report. The key points from the IOM report (see [11]) it refers to where victims of trafficking are re-trafficked it is not uncommon for it to be a different destination or for a different purpose of exploitation on each occasion. The research of the IOM reveals a crossover between international internal trafficking with trafficking persons appearing to be more potentially vulnerable to internal trafficking on return to their countries of origin from an international trafficking situation. The report implicates a wide range of factors that are relevant including gender, age, nationality, education, employment (poor educational levels), the experience of being trafficked, the experience of deportation or removal in this context and the issues that they face upon returning home [38-39]. The report makes reference that such victims are often met with similar economic and social situations which made them vulnerable to trafficking in the first place; making reference to lack of employment, economic hardship, the trafficked person’s experience of lack of support from their home and families and the stigma of women’s ability to reintegrate into their former communities (see [39]).
126. The report of Ms Skrivankova makes reference to the fact that there has been little research in this area. The IOM report is a piece of research work relating to the causes and consequences of re-trafficking, utilising evidence from the IOM Trafficking Database. I make the following observations about the report. It is a general report and is not specific to Sri Lanka. This is of some relevance as the nationality of the re-trafficked persons (many of the 35 re-trafficked cases involved come from south-eastern Europe, Albania and Moldova). Section 5 refers to assistance in reintegration relating to good practice in the missions and those are referred to in the study are those that are located in eastern Europe and the southern areas of south-east Europe. The report is not specific to the characteristics of this Appellant or her individual factors and also the factual basis of her circumstances are that she has not been trafficked from Sri Lanka or within Sri Lanka. The evidence relating to direct threats made by traffickers against trafficked persons or family members therefore do not apply to her.
127. Notwithstanding those observations, this is a serious piece of research in this area that was funded by the office to monitor and combat trafficking in persons (see US/TiP) of the US Department of State and in those circumstances it is a report that deserves weight to be attached to it. I have set out the relevant areas of the report earlier.
128. Professor Good and the IOM report refers to the socio economic background and the lack of family support being of relevance when making an assessment of the prevailing country conditions and the personal characteristics of the Appellant concerned. The IOM report makes reference to those who are “economically vulnerable” and therefore her circumstances upon return are relevant. It was submitted that on the facts of this case, the Appellant would be returning back to the same socio economic situation which would exacerbate her vulnerability and make her more at risk of exploitation and at risk of trafficking in terms of being taken advantage of by labour organisations. The most recent evidence in the Appellant’s statement underscores her lack of support (see her statement paragraphs 58-66, in which she has no one to turn to for accommodation, financial or emotional support having left Sri Lanka eight years ago). There is reference to her relatives, three sisters are married, two of her siblings live in a different area of Sri Lanka. It appears from her evidence that the relationships between the Appellant and her family members does not appear to be an easy one. Her personal history is set out in the report of Dr Abas (page 4). It is unclear what the current nature of the contact is between the Appellant and her family members. In 2012 there was reference to occasional telephone contact with her mother and to her younger sister who was the most close to her. It appears that she moved out of the house and that her father was in prison (page 18; Dr Abas’s second report). Furthermore she had fallen out with two of her sisters (see Dr Abas pages 18-19 of report). The most recent evidence is contained in her updated witness statement at paragraphs 58-66 where reference is made to the lack of family assistance she has. Thus her lack of family support is another factor that is likely to increase her vulnerability on return. The present medical evidence firmly concludes that her needs are such that she would be unable to care for herself.
129. In this context the country materials are of relevance. The country materials consist of the COIS report for Sri Lanka dated 7th March 2012 at paragraphs 22.01-22.09 (relied upon by the Respondent) and the US Department of State Trafficking in Persons Report 2013. The source of material for the extracts relied upon by the Respondent is the US State Trafficking and Persons Report 2011. The most recent report is exhibited in the Appellant’s bundle (Tab G; 2013 report) which is the more up-to-date report than that of the Respondent and the material is also replicated as the sourced material set out in the report of Professor Good.
130. I have reached the conclusion that the country evidence before me demonstrates the following; that the Sri Lankan Government have failed to provide shelters for trafficked women, and a failure to provide reintegration (see US Department of State TiP report 2013). The general material makes reference to corruption within the police and the security agencies relevant to the issue of trafficking. It is noted that the law provides for criminal penalties for official corruption however the government did not implement the law effectively and the officials in all three branches of the government frequently engaged in corrupt practices with impunity. There was an increase during the year in bribery and corruption complaints against public officials. The report refers to official collusion with traffickers (see page 7) stating that government employees complicit in trafficking offences remained a problem. There were allegations that police and other officials accepted bribes to permit brothels to operate; some of the brothels exploited trafficking victims. Many recruitment agencies were run by politicians or were politically connected. The references that are made by Professor Good in his report are replicated in the US TiP report concerning the dismissive attitude towards women within the justice system noting that sexual assault, rape and spousal abuse were “pervasive societal problems” and that no prosecutions for trafficking were reported in 2011 or 2012.
131. The relevance of the country materials and the expert evidence is that they refer to the situation likely to exist for the Appellant on return and are also relevant to the vulnerability of the Appellant upon return to Sri Lanka. There is very little available for the victims of trafficking in Sri Lanka. It does not comply with the minimum standards in elimination of trafficking and has been placed on the Tier 2 watch list for a number of consecutive years (see Ms Skrivankova’s report).
132. Drawing all of those matters together, I have reached the conclusion that there are a number of factors that demonstrate that there is a real risk or reasonable likelihood that the Appellant will be the subject of further trafficking upon return. Those risk factors have been identified earlier and make the Appellant more susceptible to trafficking and exploitation. Those factors include the particular personal characteristics that she has and outlined in the expert reports and the medical evidence which is not challenged, and the prevailing conditions also described above in the host country in Sri Lanka. The Appellant’s general vulnerability as a result of her experiences remains central to the risk. The country materials demonstrate that the country will not be able to offer or provide adequate services to such a vulnerable individual like the Appellant. With her socio economic background, her lack of family support, the ending of the mental health support services that she has here in the light of her medical condition are also likely to exacerbate the risk factors already identified. For those reasons, I have reached the conclusion that the Appellant is also likely to suffer the consequences of social stigma attached to her as a result of the experiences as a victim of trafficking and that there is a real risk that those experiences will become known for the reasons given. Consequently I accept the conclusion of Ms Skrivankova that the risk of trafficking posed to a former victim of trafficking like this Appellant, links closely to their vulnerability and that it is commonly known amongst anti-trafficking experts that the initial vulnerability that contributed to an individual being trafficked does not diminish after they have escaped or left the country and that their original vulnerability is exacerbated by the trafficking experience. I do not find that it is unclear who the agents of persecution are ; this fails to take into account the expert opinion that those who can be identified as agents of persecution are those involved in trafficking in Sri Lanka, most commonly recruitment agencies that engage in “contract switching”, that is, promising one type of job or contract or changing job/ or condition all factors which are identified in respect of forced labour and domestic servitude which this Appellant has been subjected to in the past.
133. As indicated earlier in the determination the risk arises from the identifiable vulnerabilities of the Appellant and the risk of trafficking whether she lived in her home area or in another area in Sri Lanka, the risks are said to be the same. In those circumstances the issue of internal relocation does not apply and it has not been argued on behalf of the Respondent that does.
134. I have therefore found that the Appellant has a well-founded fear of being at risk of trafficking in the terms of domestic servitude or sexual abuse and that this is serious harm which can be evidenced as a fear of persecution. In the light of the conclusions reached above, I have to consider whether she is entitled to protection on refugee grounds or in the alternative, humanitarian protection/Article 3.
135. The Convention reason relied upon is the membership of a particular social group who are vulnerable to such harm.
136. In respect of the Refugee Convention, it is submitted on behalf of the Respondent that she does not fall within a “particular social group” (see [34] Respondent’s skeleton). Miss Robinson submits that the Appellant does fall within a particular social group and relies upon the decision of the Tribunal in SB (PSG - Protection Regulations - Reg 6) (Moldova) CG [2008] UKAIT 0002 where it was held that:-
“1. If individuals share a common background which is in immutable characteristic they cannot change and which defines the group by giving it a distinct identity in the society in question which has nothing to do with the actions of the future persecutors, then the group exists independently of the feared future act(s) of persecution. It is not necessary to show general discrimination as an identifying characteristic of the group.
2. ‘Former victims of trafficking’ and ‘former victims of trafficking for sexual exploitation’ are capable of being members of a particular social group within Regulation 6(1)(d) because of their shared common background or past experience of having been trafficked.”
137. Making an assessment of this issue I remind myself of the decision of the House of Lords in Fornah [2006] UKHL 46 Lord Hope at paragraph 46 emphasised, it is not necessary for society to recognise a particular social group as being set apart from the rest of society – ‘it is sufficient that the asylum seeker can be objectively to have been singled out by the persecutor or persecutors for reasons of this membership of a particular social group whose defining characteristics existed independently of the words or actions of the persecutor.’
138. The observations of Lord Hoffman in Shah and Islam concerning the question of a ‘particular social group’ and persecution for a Convention reason demonstrate that there is a need to be set against a particular social context and the denial of protection. To identify a social group, he said that one must identify the society in which it forms part. In this case it is Sri Lanka. The risk to the Appellant arises being at risk of trafficking and exploitation for domestic servitude and risk of sexual abuse. The country materials demonstrate that Sri Lanka does not safeguard former victims of trafficking nor do they offer protection to them (see a report of Professor Good and the US State Department Report Trafficking in Persons 2013) in that the country fails to provide shelters, fails to provide reintegration into society and there is official collusion with the traffickers and there have been no prosecutions relating to traffickers reported in 2011 and 2012. The decision of SB (as cited) held that the former victims of trafficking and former victims of trafficking for sexual exploitation are capable of being members of particular social groups because of their shared common background or past experiences of having been trafficked. In the light of the country materials and for the reasons identified in the preceding paragraphs, I find that the circumstances the Appellant falls within a “particular social group” as identified by Miss Robinson and as in SB (as a “former victim of trafficking”).
139. Humanitarian protection under Council Directive 2004/83/EC should be granted where there are substantial grounds for fearing a real risk of serious harm, even if such harm is unrelated to a Refugee Convention reason. In the alternative Miss Robinson submits the Appellant falls within Article 15(b) “degrading treatment” in the country of origin. For the reasons that I have set out earlier, if I were wrong that the Appellant fell within a “particular social group” I would find for the same reasons that she has demonstrated that she would be at risk of serious harm and that there is no protection available for her in the light of those risks and thus in the alternative I would find that she would be entitled to humanitarian protection or in the alternative, that the appeal would be allowed under Article 3.
140. In the light of the findings and decision made in respect of the central issue, it is not necessary for me to consider the other grounds upon which the Appellant relies.
141. However, in respect of Article 8 of the ECHR, I would have also found that the return of the Appellant at this time would disproportionate in the light of the findings and analysis of the evidence made on the unusual facts of this appeal. It has not been disputed that in respect of Article 8 it comes down to the issue of proportionality (the other steps in Razgar having been met). Whilst it has been argued on behalf of the Respondent that support is limited but nonetheless some is accessible and that the public interest must be weighed in the balance to ensure that the limited health resources in this country are used for the benefit of its citizens (see [46] in Akhalu (as cited), I am required to have regard to all the circumstances relied upon and in this case I find that the factors which demonstrate that removal is disproportionate are set out in the earlier findings of the determination. They include the consequences for the Appellant if removed (her deteriorating mental health and incidents of self harm), the conditions the Appellant would be subject to on return, including the social stigma, the ending of a high level of support for her ongoing mental health needs, lack of effective family support, lack of assistance and reintegration for those who have been subject to trafficking and the risks attached to her general vulnerability, and that her current condition is a direct consequence of having been the victim of trafficking in the UK. A relevant consideration is that the Respondent has not applied her policy to provide protective and remedial assistance to the appellant as a victim of trafficking which should be implemented in the light of the Articles 12, 14 and 16 of the Anti- Trafficking Convention. The UK signed CAAT in March 2007, ratified it on the 17th December 2008 and it came into force on 1st April 2009. There has been no national legislation to give legal effect to it, instead the UK’s obligations have been implemented by the adoption of policies and procedures including the National Referral Mechanism(“NRM”). As part of the UK implementation of CAAT, the Respondent has issued a policy document “Guidance to the Competent Authorities”; to ensure the rights of victims of trafficking are protected, to combat trafficking and to promote international co-operation. Part of the guidance relates to trafficking “distant in time/historic claims”. In this case, there has been no consideration of that part of the guidance that refers to the Appellant having suffered physical and emotional harm for the trafficking experience and requires time to recover and the appellant’s particular medical circumstances. Whilst it may be time limited it depends on the circumstances of the particular victim irrespective of time lapse. The aspect of recovery is critical form of reparation for a victim of trafficking and as seen in this case, the trafficking has had continuing and serious psychological consequences for the Appellant. The medical evidence demonstrates that contrary to the view taken by the Respondent, her condition has not improved but has deteriorated and that the underlying cause of her condition is because of her experience of having been trafficked in the UK. She requires ongoing medical care to assist in her recovery from the harm she has suffered. In striking the balance, I take into account that comparison of level of medical resources would not have any real impact on the outcome but even attaching great weight to the public interest as outlined above, on the particular facts of this case, I find that the balance weighs in favour of the Appellant by reason of the factors identified above, and that consequently the decision to remove the Appellant is a disproportionate one.

Decision:
The First-tier Tribunal made an error of law; the decision is set aside and re-made as follows:
The appeal is allowed on asylum grounds and on human rights grounds (Article 3 and 8).



Signed Dated

Upper Tribunal Judge Reeds