Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00279/2016

THE IMMIGRATION ACTS

Heard at: Manchester
Decision & Reasons Promulgated
On 1st December 2016
On 28th April 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Secretary of State for the Home Department
Appellant
And

CO
(anonymity direction made)
Respondent

For the Appellant: Mr Harrison, Senior Home Office Presenting Officer
For the Respondent: -

DETERMINATION AND REASONS

1. The Respondent is a national of Nigeria and she is now approximately 26 years old. On the 11th October 2016 the First-tier Tribunal (Judge CH O’Rourke) allowed her protection appeal. On the 4th November 2016 the Secretary of State for the Home Department was granted permission to appeal against that decision.

2. The Respondent (hereinafter C) is a victim of trafficking for the purposes of sexual exploitation. That was the conclusion reached by the Competent Authority, and it was a view shared by Judge O’Rourke. The Secretary of State does not dispute those findings. She does however challenge Judge O’Rourke’s finding that C was at risk as a result. That is a ground of appeal I rejected, for the reasons give below, at a hearing on the 1st December 2016. The central question raised in this appeal is however this: was Judge O’Rourke entitled to deal with the appeal at all, given the information available that C was no longer in the United Kingdom. My decision on that ground was adjourned pending further enquiries. My conclusions and reasons are set out below.

Background

3. C arrived in the United Kingdom in May 2015. She claimed asylum. She told officers that she was brought up by her grandfather in Benin City. When she was approximately 22 her grandfather tried to force her into marriage to a man she did not want to marry. She ran away to Lagos. Facing destitution she started working as a prostitute. The Madam who ran the brothel gave her shelter and food but took all the money that C earned. C was subjected to violence if she objected to these conditions. The Madam proposed to C that she come to work in the UK. C agreed and a visa and false passport were arranged, with C being taken first to Ghana then to Austria and on to London. Once C arrived in the UK she presented herself to the authorities. Officers invoked the ‘national referral mechanism’ (NRM). What happened next is summarised in the Competent Authority report, wherein C is described as ‘PV’, a ‘potential victim’:

“After arrival in the UK the PV continued to receive threats from a man named Alaji who had helped PV to come to the UK. He threatened to hurt the PVs mother or have her arrested if the PV did not pay back over two million Naira he said she owed. Due to these threats the PV left her safe accommodation with the Salvation Army and went to Manchester where Alaji had arranged a man to meet her.

This man took PV back to his house and advised the PV to change her phone and got her another SIM card so the Salvation Army could not locate her. The PV was kept in this unknown place for four days until the police came to the house and said they had arrested this man who held her there. After this the PV was referred to the Medaille Trust for support”

4. C was refused international protection on the 23rd December 2015. Although the Secretary of State accepted that she had been trafficked as described it was held that there would be a sufficiency of protection in Nigeria and that there was no real risk that she would either be forced into marriage or re-trafficked.

5. C was at that stage represented by the Greater Manchester Immigration Aid Unit. GMIAU lodged an appeal on her behalf. C was then living in NASS accommodation in Eccles.

6. On the 25th August 2016 the matter was listed as a ‘Case Management Review’ before First-tier Tribunal Judge Cruthers at Manchester. The hearing was attended by Mr Pountney of GMIAU. He informed the Tribunal that GMIAU had had no instructions from C since March 2016, but they had reason to believe that C may have been re-trafficked out of the UK, possibly to Germany. This information had been provided by C’s friend, and it would appear (although the record of proceedings is not entirely clear), from Greater Manchester Police.

7. A further CMR was held on the 8th September 2016. GMIAU regretfully informed the Tribunal that they remained without instructions and on that basis would have to withdraw. Judge Cruthers was not prepared to treat the appeal as abandoned on the limited evidence he had before him, and directed that the matter be determined on the papers.

8. So it was that the appeal was listed, on the papers only, before Judge O’Rourke. The Tribunal had before it the decision of the Competent Authority, C’s account in the form of her asylum interview and witness statement, written representations from GMIAU and a copy of the Court of Appeal decision in PO (Nigeria) v Secretary of State for the Home Department [2011] EWCA Civ 132. On the basis of that material the Tribunal held that C had been trafficked by a well-organised gang who had managed to arrange false documentation and move her across several international borders. That gang had been able to track her down to her accommodation in Manchester. There was a real risk that such a gang would have the means to track her down and seek repayment of her ‘debt’ should she be returned to Nigeria. The Judge rejected the contention that there was a sufficiency of protection and allowed the appeal.

The Secretary of State’s Appeal

9. On the 1st December 2016 the matter came before me, sitting at Field House, London. The Secretary of State for the Home Department was that day represented by Senior Presenting Officer Mr Walker. There was no appearance by the Respondent.

10. The Secretary of State had two grounds of appeal. In a written decision dated the 4th December 2016 I made the following findings about the first:

Ground 1

“It is submitted in the written grounds (although not by Mr Walker before me) that the Judge’s findings can no longer be considered safe in light of the new country guidance case of HD (trafficked women) Nigeria CG [2016] UKUT 00454 (IAC). The grounds suggest that as C entered into prostitution in Nigeria “voluntarily” the new decision would indicate there to be no risk. I say ‘suggest’ because the point is not entirely clear. I can find nothing in the case of HD to support the suggestion that this young woman is not a victim of trafficking. Being forced into prostitution because you are facing destitution on the streets of Lagos is not volunteering to do sex-work. As the Tribunal notes in HD, those are precisely the socio-economic characteristics that traffickers will seek to exploit:

The fact that a woman was previously trafficked is likely to mean that she was then identified by the traffickers as someone disclosing characteristics of vulnerability such as to give rise to a real risk of being trafficked. On returning to Nigeria, it is probable that those characteristics of vulnerability will be enhanced further in the absence of factors that suggest otherwise.

I find no arguable merit in this ground of appeal. The finding that this was trafficking, and trafficking by a gang with the means and determination to retain control over C, were plainly open to Judge O’Rourke on the material before him”.

Ground 2

11. The second ground is that the Tribunal erred in proceeding to deal with the appeal at all. The information before it indicated that C had left the UK and in those circumstances, submits the Secretary of State, the appeal should have been treated as abandoned. The grounds refer to s92(8) of the Nationality, Immigration and Asylum Act 2002 (as amended):

"Where an appellant brings an appeal from within the United Kingdom but leaves the United Kingdom before the appeal is finally determined, the appeal is to be treated as abandoned unless the claim to which the appeal relates has been certified under section 94(1) or (7) or section 94B."

12. The construction of this statutory provision was considered in SR (Algeria) [2015] EWCA Civ 1375. SR was a woman who was forcibly removed by the Secretary of State whilst she had an appeal pending before the Court of Appeal. The court held that in this context the word “leaves” should be interpreted as "voluntarily leaves the United Kingdom". Lord Justice Sales explained the Court’s reasoning as follows:
16. My reasons for construing the word "leaves" in this way are as follows:
(i) To my mind, as a matter of ordinary usage, the word "leaves" has a strong connotation of an action being taken by an agent on a voluntary basis (e.g. “The protester did not leave the building but was removed from it by a security guard");
(ii) In certain contexts it may be possible for the word to be used to refer to simple physical relocation of a person, however that relocation might be achieved, whether by deliberate action taken by the person as agent or by actions taken by others to relocate that person. However, there are no indications from the context here that such a wider meaning was intended. On the contrary, I think that both the linguistic context and the wider context and scheme of the legislation support the narrow meaning of "leaves" referred to above. As to the linguistic context, the word "leaves" appears in a composite opening phrase in which there is a single subject, the "appellant", who does two things: she "brings an appeal" and she "leaves the United Kingdom". The first clearly imports a notion of voluntary agency on the part of the appellant, since bringing an appeal is not something which is done to an appellant, and I see no reason to change the sense of the appellant being a voluntary agent doing something when one comes to the second verb in the same phrase. The use of the word "but" supports this view: the appellant has acted voluntarily to commence an appeal, but then acts voluntarily in another way so that it should be treated as abandoned.
(iii) Rule of law considerations in this context support the same conclusion. In a state governed by the rule of law, where the state itself is the subject of ongoing litigation, it would breach rule of law principles for the state to be able to defeat the litigation not by defending it on the merits before a court or tribunal, but by physically removing the opposing party so that she is prevented from bringing her claim before a court or tribunal, as appropriate, for determination according to law. Parliament is taken to legislate for a state governed by the rule of law with rights of access to justice: see, for example, R (Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36; [2004] 1 AC 604, paragraphs [26]-[28]. Accordingly, Parliament must be taken to have intended to use the word "leaves" in the narrow sense referred to above, where it is the voluntary act of the appellant which has the stated effect of the appeal being abandoned;
(iv) The narrower interpretation of the word "leaves" also accords with what I think is the manifest object and purpose of the provision, namely to make it possible to strike out an appeal with a minimum of procedural fuss when an appellant has voluntarily left the United Kingdom, since such action is generally inconsistent with the serious pursuit of an appeal launched on an in-country basis. To give the word "leaves" a wider meaning would involve going beyond that object and purpose without any good reason to do so;
(v) It is also significant that in those cases in which predecessor provisions, including section 104(4)(b) of the 2002 Act, set out above, have been considered in this court, the judges expressing views as to their meaning have been careful to say that the word "leaves" refers to the appellant "by his voluntary action" physically leaving the United Kingdom: see MM (Ghana) v Secretary of State for the Home Department [2012] EWCA Civ 827 at paragraph [32] and Shirazi v Secretary of State for the Home Department [2003] EWCA Civ 1562; [2004] INLR 92 at paragraph [13]. These observations have not been critical to the points in issue in those cases, which in fact concerned voluntary departures by an appellant. However, they are in line with my own view that the natural interpretation of the word "leaves" in this context is that it connotes voluntary action on the part of the appellant in question.
17. A different view of the meaning of the word "leaves" as it appeared in section 104(4)(b) of the 2002 Act was taken by the Asylum and Immigration Tribunal in MA (Afghanistan) [2004] UKIAT 00216, which considered that it bore the wider meaning canvassed above and thus covered both voluntary and involuntary departures from the United Kingdom. In my opinion, that is not correct. For reasons closely similar to those set out above in relation to the new section 92(8), I think the better view is that the word "leaves" in section 104(4)(b) bears the same narrow meaning as it does in section 92(8) and thus covers only voluntary departures from the United Kingdom.
13. Before me Mr Walker did not seek to draw a distinction, in this context, between the case of a woman who is forcibly removed by Immigration Services, and a woman who is forcibly removed by other agents, in this case traffickers. He agreed that the abandonment ground of appeal would only be made out if it could be established on the balance of probabilities that C left the UK voluntarily.

14. In my written decision of the 4th December 2016 I expressed a preliminary view that this ground is very unlikely to succeed. On the evidence before it the First-tier Tribunal was perfectly entitled to conclude that C had fallen back into the hands of the gang who had brought her here in the first place. There was nothing to suggest that she had left voluntarily. I was however mindful that the First-tier Tribunal does not expressly address the point. Whilst its finding as to C’s whereabouts forms part of its assessment as to current risk, the Tribunal did not appear to consider the question of abandonment.

15. Before me Mr Walker asked leave to adduce further evidence. Permission was granted. This consisted of a print-out from the Home Office record system. It shows that on the 21st April 2016 a SERCO officer provided the Secretary of State with the following information:

“Previously [C] was reported as missing. She had made contact with her housemates and friend advising that the traffickers from before have taken her to Germany and have locked her in a house. They had made threats about her family members and so she said she was too scared to escape in case of what they did to them. All this has been reported to the police on case reference above….”

The record goes on to read that C’s former housemate had provided information that subsequent to this initial contact C had informed her that she was in France en route to Spain. She sought the help of the French police who placed her in a children’s home until they could get a space in an adult safe house. She was, the record reads, “kicked out” of this children’s home and made her way to the British Embassy in Paris. Her friend called the embassy and spoke with Pro-Consul Carolyn Visciano. Ms Visciano advised that she could not assist because C was not a British citizen and she would need authorisation from the Home Office before she could be re-admitted to the United Kingdom. The report also states that Swinton police have custody of all of C’s documents: when she was reported missing they were recovered from her room.

16. If anything, this information supported my preliminary view that C did not leave the United Kingdom voluntarily. The fact that the police have custody of “all of her documents” would strongly suggest that she is being moved across borders clandestinely, in the manner of the well-organised gang discussed by Judge O’Rourke. I found it difficult to understand why C would be contacting her friend in the United Kingdom, the French police and the British Embassy asking for help if she had simply made a voluntary departure from the UK.

17. Mr Walker acknowledged that there were difficulties for the Secretary of State in making out this ground. He informed me that he did have some information which might support his case but had not had sufficient time to have it produced in acceptable form for the Tribunal. He had spoken by telephone to one of the officers at Swinton Police Station who had been involved in the search for C. This officer, a Peter Morris, told Mr Walker that CCTV had shown C getting on a coach in Manchester which was heading for London. Having seen that footage, he had closed his missing persons enquiry as there was nothing to indicate that she was being taken anywhere against her will. Having heard Mr Walker’s submissions, I agreed to adjourn my final decision on this matter until the Secretary of State had had time to follow this initial enquiry up, and produce some actual evidence if necessary. I concluded my written decision as follows: “I should say that as it stands the evidence of DS Morris, even if produced in proper statement form, is unlikely to carry much weight in my enquiry. That is because it has been clear from the outset that part of the ‘hold’ that the traffickers have asserted over C is the fact that they have threatened her mother in Nigeria. The fact that she was on her own when she got on a coach in Manchester is in those circumstances neither here nor there. The evidence was that she had previously left safe accommodation in London to return to the traffickers in Manchester for precisely that reason. I am however prepared to adjourn to enable further enquiries to be made, not least in the hope that such enquiries might assist in identifying what has happened to C”.

18. When the hearing resumed before me in Manchester the Secretary of state had no further evidence to adduce. Mr Harrison had no submissions to add to what had already been submitted by Mr Walker.

19. For the reasons set out above I am not satisfied that the Secretary of State for the Home Department has made this ground out. The First-tier Tribunal was not asked to determine the issue of whether C had voluntarily abandoned her appeal. I find that on the evidence, the Secretary of State if very far from establishing that C had left the UK voluntarily. On the contrary, the evidence, viewed in the light of the unchallenged findings of fact by the First-tier Tribunal and Competent Authority, overwhelmingly indicated that C has more likely been re-trafficked for the purposes of sexual exploitation. Should she present herself at a UK border she should be granted entry on the grounds that she is a refugee, and she should be extended the protection to which she is entitled under the Refugee Convention, the European Convention on Human Rights and the Convention on Action Against Trafficking in Human Beings.

Decisions

20. The decision of the First-tier Tribunal does not contain a material error of law and it is upheld.

21. Although GMIAU are no longer on record, a copy of this decision will be served upon them for information only.

22. An order for anonymity is in force.

Upper Tribunal Judge Bruce
25th March 2017