Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/33446/2015

THE IMMIGRATION ACTS

Heard at Manchester, Piccadilly Decision & Reasons Promulgated
On the 10th April 2017 On the 20th April 2017

Before:
DEPUTY UPPER TRIBUNAL JUDGE MCGINTY

Between:
MR HAMZA EL-MOUSSAUI
(anonymity direction not made)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Nicholson (Counsel)
For the Respondent: Mr McVeety (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. This is the Appellant’s appeal against the decision of First-tier Tribunal Judge G. Tobin promulgated on the 12th September 2016, in which he dismissed the Appellant’s appeal against the Respondent’s refusal to grant the Appellant Further Leave to Remain in the United Kingdom dated the 12th October 2015.
2. Within the Grounds of Appeal to the First-tier Tribunal, it was argued by the Appellant that he had previously been the victim of trafficking and that he feared that he would be persecuted upon returning to Western Sahara. It was also argued that he should have been granted Humanitarian Protection and that the decision was in breach of Articles 2, 3 and 8 of the ECHR.
3. Within his decision, First-tier Tribunal Judge Tobin at [13] stated that at the outset of the appeal hearing he had confirmed the issues with Mr Nicholson and that this was not an appeal against the previous asylum decision taken by the Respondent in respect of the Appellant dated the 8th March 2013 and that the Appellant was pursuing his appeal on the basis of paragraph 276ADE of the Immigration Rules and in particular it was stated by Judge Tobin that the Appellant contended that there were very significant obstacles to his reintegration into the Western Sahara and that there was a substantial delay in determining his asylum and immigration claim and that he was integrated into the UK.
4. Judge Tobin went on to find that there would not be very significant obstacles to the Appellant returning to Western Sahara or Morocco and did not accept that there was a reasonable degree of likelihood that the Appellant would be killed and subjected to a real risk of serious harm upon returning to either Western Sahara or Morocco and that he was not eligible for grant of Humanitarian Protection and that the Appellant had not satisfied the Judge that there was a real risk upon return that his life would be threatened or that he would be at a real risk of being exposed to torture or inhuman or degrading treatment or punishment and that there would therefore not be a breach of either Articles 2 or 3, were he to be returned.
5. In respect of paragraph 276ADE it was found by Judge Tobin that the Appellant had not lived in the UK continuously for 20 years and had not been in a long lasting substantive relationship, nor did he have any children such as to amount to a right to a family life in the UK. Judge Tobin did not accept the Appellant was a credible witness and stated at [20] that “the fact that he was due to earn higher wages in the UK, that he was adverse to contacting the police and that he did not need to be smuggled through a precarious re-trafficking route all indicated that, if his account were to be believed, that the Appellant faced a greater risk in the UK”. He noted that upon re-examination the Appellant said that if he was contacted by the traffickers again, despite his claim that he had been seen by the traffickers about 6 weeks previously and that they had taken his asylum registration card and robbed him of his money and bank card, that he would report them to the police was said to be inconsistent with his earlier account of his original purported fear. The Judge further found that the Appellant was initially vague and then less than frank when pressed about his criminal convictions. He further found that there was no information to suggest that the gang at the heart of the matter trafficked adults and that the Appellant had been to prison, but survived abuse and was a very different potential target than a vulnerable child. Judge Tobin was therefore not satisfied that upon return to Western Sahara or Morocco the Appellant would be at risk of being re-trafficked, or that he was likely to be murdered, or would suffer degrading treatment. He therefore dismissed the appeal. The Appellant has sought to appeal that decision.
6. Within the Grounds of Appeal it is argued that the Appellant’s case was based upon a fear of being re-trafficked, the Appellant having been a former victim of trafficking from Western Sahara. It was argued that the Judge’s reasoning at paragraph 20 when he stated if the Appellant’s account is believed he faced greater risk in the UK than he would in Western Sahara, because he was due to earn a higher wage in the UK, was perverse. It was further argued that the finding went against the evidence before the Judge that the Appellant and his family would be killed in Western Sahara and that he would be forced into theft, drugs and prostitution in Western Sahara without sufficiency of protection from the authorities. It is said that the Judge failed to consider that there is sufficiency of protection in the UK which the Appellant could access as opposed to the background evidence in respect of a lack of protection available in Western Sahara. It is argued that the Judge failed to consider the evidence before him from the IOM Human Trafficking Database about the causes and consequences of re-trafficking, which was unrelated to the age of the victim and whether they had been to prison and the size and strength of the victim. It was further argued that the Judge failed to consider the Appellant had previously been accepted as a victim of trafficking from Western Sahara by the Competent Authority, so that the real issue was one of risk upon return which it was argued had not been properly addressed in the determination.
7. Within the Rule 24 Reply from the Secretary of State dated the 23rd December 2016, it was argued that the First-tier Tribunal Judge had directed himself appropriately and the Judge had found with good reasons that he was sceptical as to the Appellant’s evidence and the change in the Appellant’s account. It was said that the Judge accepted that the Appellant had been subject to trafficking unwittingly as a child but the Judge pointed out the Appellant was an adult with considerable street experience and criminal convictions as circumstances now were very different from those when he was trafficked as a vulnerable and inexperienced child. It was argued that the Judge’s reasoning was clear and that there were no material errors of law.
8. It was on that basis the case came before me in the Upper Tribunal.
9. At the appeal hearing, however, Mr Nicholson told me that he had had discussions with Mr McVeety, the representative from the Home Office, and that there was now an agreed position between the parties that the decision of First-tier Tribunal Judge Tobin did contain a material error of law and was unsafe and the case should be remitted back to the First-tier Tribunal.
10. Mr Nicholson told me that he represented the Appellant at the hearing, and that when he had been asked about the issues in the case, at that stage he had said that the first issue whether the Appellant was a victim of trafficking, secondly, whether he feared returning to Western Sahara, thirdly Articles 2 and 3 and he said that he also mentioned Article 8 and raised paragraph 276ADE.
11. Mr McVeety on behalf of the Respondent, conceded that the Learned First-tier Tribunal Judge had erred in law at [20] when finding that “the fact that he was due to earn higher wages in the UK, that he was adverse to contacting the police and that he did not need to be smuggled through a precarious re-trafficking route all indicated that, if his account was to be believed, then the Appellant faced a greater risk in the UK” and that that was an irrelevant consideration. He further conceded that the Judge’s reasoning at [22] that “the Appellant has been to prison and survived abuse was a very different potential target than a vulnerable child” which he said was the equivalent of a “if it doesn’t kill you it makes you stronger” argument was irrelevant. He conceded that whether or not on the Appellant’s account he would be at a greater risk in the UK than in Western Sahara was not the issue in deciding whether or not the Appellant would face significant obstacles upon returning to Western Sahara or Morocco, and that the Judge was wrong to take account of the same. He further conceded that the Judge’s reasoning that he had been to prison and survived abuse and was a very different potential target from a vulnerable child, again failed to address the background evidence regarding the factors likely to mean that a person would be subject to re-trafficking. He further conceded that the reasoning of the Judge in finding there would not be very significant obstacles in this case was unclear. Mr McVeety therefore conceded that there was a material error of law in this case such that a decision of First-tier Tribunal Judge G. Tobin should be set aside in its entirety.
12. Mr McVeety further stated that a letter had been sent to the First-tier Tribunal on the 9th March 2016 from Mr Tam at the Home Office indicating that if the Appellant did wish to raise protection issues, or issues beyond that which was dealt with within the refusal notice, then that would need the permission of the Secretary of State. He stated that although the risk of re-trafficking could potentially fall within paragraph 276ADE in terms of whether or not there would be very significant obstacles to the Appellant’s reintegration back into Western Sahara, the Appellant’s contention that he should be entitled to Humanitarian Protection and/or protection under Articles 2 and 3 of the ECHR would in effect amount to new issues.
13. It was therefore agreed between the parties that in addition to the decision of Judge Tobin being set aside on the basis of a material error of law, that the case should be listed back before the First-tier Tribunal for a case management review hearing in order that the Home Office’s position could be clarified regarding asylum, Humanitarian Protection, arguments about trafficking, and Articles 2 and 3 of the ECHR and whether or not consent would be granted in respect of any “new issues” and so that the issue as to what matters were in fact before the First-tier Tribunal could be clarified.
14. In light of the concessions made by Mr McVeety in this case, I do therefore find that the decision of First-tier Tribunal Judge Tobin does contain material errors of law at [20] when he stated that “the fact that he was due to earn higher wages in the UK and that he was adverse to contacting the police and did not need to be smuggled through a precarious re-trafficking route all indicated that, if his account was to be believed, then the Appellant faced a greater risk in the UK”, was not in fact a relevant consideration as to whether or not the Appellant would face very significant obstacles upon returning to Western Sahara or Morocco, in circumstances where the Appellant had been previously accepted by the Competent Authority as having been a victim of trafficking. The issue was not relating to his risk in the UK, but his ability to reintegrate back into life in Western Sahara.
15. Further, given the concession made by Mr McVeety, I further accept that the Judge materially erred in law at [22] in taking into account that the Appellant had been to prison and survived abuse so that he was therefore a very different potential target than a vulnerable child, and failed to address in that regard the background evidence regarding the causes of re-trafficking in the background evidence supplied by the Appellant within the original bundle, that was not analysed and considered by the Learned First-tier Tribunal Judge. In circumstances where the Appellant had been previously accepted by the Competent Authority as having been a victim of trafficking, I do agree with the stance taken by the parties that these errors do amount to material errors of law, given that it cannot be said that the decision would necessarily be the same, had those errors not been present and had the Judge properly taken account of all of the relevant evidence and not taken account of irrelevant matters in reaching his decision.
16. I further agree and direct that the case should be listed for a case management review hearing, in order that the issues actually before the First-tier Tribunal upon the re-hearing de novo can be clarified, and it can be established what amounts to a new issue in the case and as to whether or not the consent of the Respondent is granted in respect of any such new issue that is to be argued, beyond those dealt with within the refusal notice.
Notice of Decision
The decision of First-tier Tribunal Judge G. Tobin does contain material errors of law and is set aside in its entirety.
I remit the case back to the First-tier Tribunal for re-hearing before any First-tier Tribunal Judge other than First-tier Tribunal Judge G. Tobin. The matter is to be listed for a case management review hearing before a full-time First-tier Tribunal Judge, in order that the issues in the appeal can be clarified and the position of the Respondent confirmed, prior to listing for a substantial hearing de novo.

Signed

Deputy Upper Tribunal Judge McGinty Dated 10th April 2017