The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01213/2018


Heard at Manchester Civil Justice Centre
Decision & Reasons Promulgated
On 10th December 2018
On 2nd January 2019




THE Secretary of State FOR THE Home Department


For the Appellant: Mr C Bates, Senior Home Office Presenting Officer
For the Respondent: Mrs L Barton, Counsel instructed by ADL Solicitors

Introduction and Background
1. The Secretary of State appeals against a decision of Judge Andrew Davies (the judge) of the First-tier Tribunal (the FtT) promulgated on 19th September 2018.
2. The Respondent before the Upper Tribunal was the Appellant before the FtT and I will refer to her as the claimant.
3. The claimant was born on 20th August 1999 and is a Vietnamese citizen. She claims to have arrived clandestinely in the UK on 28th August 2014 and thereafter claimed asylum. She claimed that she could not return to Vietnam because she would be at risk as a former victim of modern slavery, having been trafficked from Vietnam to Europe for the sex trade. She also claimed international protection on the basis that she is a Catholic.
4. On 3rd March 2017 the Competent Authority decided that the claimant was not a victim of human trafficking from Vietnam for the purposes of any kind of exploitation. It was not accepted that she was a victim of slavery, servitude or forced/compulsory labour.
5. On 10th January 2018 the Secretary of State refused the claimant's application for international protection and her human rights claim.
6. The appeal was heard by the FtT on 4th September 2018. The judge found that the claimant had not proved that she would be at real risk of persecution in Vietnam on grounds of religious belief and dismissed that aspect of her claim.
7. The judge found that victims of trafficking do not form a particular social group in Vietnam within the meaning of the Refugee Convention, as they do not have a distinct identity within Vietnamese society. The judge noted the decision of the Competent Authority which concluded that the claimant had not been a victim of modern slavery, including human trafficking.
8. The judge found that the Appellant could not be considered part of a particular social group, but concluded to the lower standard that the claimant had been a victim of trafficking, notwithstanding the decision of the Competent Authority to the contrary.
9. The judge found that the claimant faced a real risk of serious harm on return to Vietnam as she may be destitute, and vulnerable to trafficking or re-trafficking and she had no family support available. She had left Vietnam as a child and would return as a young adult with a baby. The judge therefore concluded that the claimant was entitled to a grant of humanitarian protection and allowed the appeal on humanitarian protection grounds.
10. The Secretary of State applied for permission to appeal to the Upper Tribunal. In summary, it was contended that the judge had made a material misdirection of law on the basis that it was not open to the judge to depart from the conclusions of the Competent Authority when deciding whether the claimant was a victim of trafficking. It was submitted that it was only in cases where the decision had been found to be perverse or in breach of the Secretary of State's policy, that the judge would be empowered to depart from those conclusions. It was contended that the judge had failed to identify any perversity or breach of policy and therefore had erred in law. Reliance was placed upon MS (Trafficking - Tribunal's Powers - Art. 4 ECHR) Pakistan [2016] UKUT 00226 (IAC).
11. Permission to appeal was granted by Judge O'Garro who relied upon MS (Pakistan) [2018] EWCA Civ 594 in concluding that there was an arguable error of law.
12. Directions were issued that there should be a hearing before the Upper Tribunal to ascertain whether the FtT had erred in law such that the decision should be set aside.

The Upper Tribunal Hearing
13. Mr Bates very fairly drew my attention to case law which had been published after MS (Pakistan). There were two Upper Tribunal decisions, the first in time being AUJ (Trafficking - no conclusive grounds decision) Bangladesh [2018] UKUT 00200 (IAC) and the most recent decision, that being ES (s82 NIA 2002; negative NRM) Albania [2018] UKUT 00335 (IAC).
14. Mr Bates submitted that AUJ appeared to support the Secretary of State's submission, but accepted that ES did not. Mr Bates accepted that if I thought it appropriate to follow the guidance in ES, there was no material error of law in the FtT decision.
15. Mrs Barton submitted that ES should be followed, as being the most recent decision, and in that decision the Upper Tribunal Judge considered AUJ and MS (Pakistan) which in turn considered an earlier decision AS (Afghanistan) [2013] EWCA Civ 1469.

My Conclusions and Reasons
16. I find no material error of law in the FtT decision. In my view the approach taken by the judge is in line with the most recent guidance given by the Upper Tribunal in ES which was heard on 28th June 2018 and promulgated on 6th September 2018.
17. It is clear that Upper Tribunal Judge Finch, in ES, carefully considered the previous authorities, those being AS (Afghanistan), MS (Pakistan) and AUJ Bangladesh.
18. In ES it is pointed out that the Court of Appeal in both AS (Afghanistan) and MS (Pakistan) was giving judgment on the role of a previous decision made by the Competent Authority in an appeal against removal under the previous appeal regime under section 82 of the 2002 Act which pertained prior to 20th October 2014. The decision in ES, as in the case before me, relates to the "new appeal regime", the important difference being that the appeal in ES was against the Respondent's decision to refuse a protection claim, not a decision to remove from the United Kingdom.
19. Judge Finch in ES found that the Upper Tribunal Judge in AUJ had made comments which appeared to support the Secretary of State's position, but which did not form any part of the head note to the decision and as Judge Finch described at paragraph 17 of her decision were "clearly obiter".
20. I set out below the head note to ES;
1. Following the amendment to s82 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act), effective from 20 October 2014, a previous decision made by the Competent Authority within the National Referral Mechanism (made on the balance of probabilities) is not of primary relevance to the determination of an asylum appeal, despite the decisions of the Court of Appeal in AS (Afghanistan) v SSHD [2013] EWCA Civ 1469 and SSHD v MS (Pakistan) [2018] EWCA Civ 594.
2. The correct approach to determining whether a person claiming to be a victim of trafficking is entitled to asylum is to consider all the evidence in the round as at the date of hearing, applying the lower standard of proof.
3. Since 20 October 2014, there is also no right of appeal on the basis that a decision is not in accordance with the law and the grounds of appeal are limited to those set out in the amended s82 of the 2002 Act.
21. Judge Finch pointed out at paragraph 33 of ES that;
"Furthermore, the fact that the Government decided to adopt a balance of probabilities as the appropriate standard of proof for a conclusive decision within the National Referral Mechanism, as opposed to the far lower standard of proof applicable in Refugee Convention decisions, indicates that it did recognise that the two processes were to be distinguished from each other".
22. The judge in this case, which was heard just prior to ES being promulgated, has followed the approach advocated in ES. I conclude that the current position is as outlined in ES, in that an FtT Judge is not bound by a negative decision made by the Competent Authority in relation to trafficking. It is relevant that the Competent Authority makes a decision based on a balance of probabilities, which is not the case in the FtT, where the standard of proof is a reasonable degree of likelihood, which is a lower standard.
23. I therefore conclude that ES should be followed. The judge considered all the evidence in the round as at the date of hearing, and applied the correct standard of proof and therefore reached a conclusion open to him on the evidence, and did not err in law.
24. The decision of the FtT stands.

Notice of Decision
The FtT decision does not disclose an error of law. I do not set aside the decision. The appeal of the Secretary of State is dismissed.

I have decided that it is appropriate to make an anonymity direction in this case. Unless a Tribunal or court directs otherwise, the claimant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. Failure to comply with this direction could lead to contempt of court proceedings. This direction is made pursuant to Rule 14 of The Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed Date 10th December 2018

Deputy Upper Tribunal Judge M A Hall


As the decision of the FtT stands so does the decision not to make a fee award.

Signed Date 10th December 2018

Deputy Upper Tribunal Judge M A Hall