The UT in DC (trafficking: protection/human rights appeals) Albania  UKUT 351 (IAC) confirmed, clarified, and broadened the jurisdiction of the Tribunal to determine issues for itself, where there is an extant trafficking (NRM) decision from the Competent Authority. Alex Chakmakjian acted for the Appellant, instructed by Heather Kilby of Kilby Jones Solicitors.
The appeal was heard by the President of the Upper Tribunal (IAC), Mr Justice Peter Lane, alongside UTJ Finch and UTJ Gill. Interestingly, the case saw both UTJ Finch and UTJ Gill revisiting their own reported decisions, among others, in order to clarify the law in this area.
The UT took much of the analysis advanced by Alex to draw together the key principles and produce consolidated guidance on the vexed role of trafficking decisions that interact with immigration appeals. The judgment in DC therefore usefully summarises the relevant caselaw on the proper approach, explaining the effects of MS (Pakistan)  EWCA Civ 594, AUJ (Trafficking – no conclusive grounds decision) Bangladesh  UKUT 200, ES (s82 NIA 2002; negative NRM) Albania  UKUT 335 and R (MN) v SSHD  EWHC 3268. The decision also opens the way for rationality challenges to NRM decisions, albeit narrow in scope, even where there has not been a preceding judicial review. Furthermore, the judgment recognises that establishing an appellant as a victim of trafficking can remain relevant to Art.8 issues, giving the example of mental health or medical needs arising as a consequence of trauma.
The UT began by reviewing the Court of Appeal decision in MS (Pakistan). In MS, Flaux LJ had ruled that (following AS (Afghanistan)  EWCA Civ 1469) the UT had erred in re-determining for itself whether the appellant had been trafficked where it had not first established that the decision of the Competent Authority was perverse or irrational. Recognising that significant uncertainty had arisen as a result of this judgment, the UT in DC clarified that Flaux LJ was specifically addressing the ground of appeal that the decision was not in accordance with the law.
The UT in DC went on to acknowledge the scope for challenging the rationality of an NRM decision in an immigration appeal against a removal decision, even where there had not been a judicial review of the NRM decision. At para.32, the UT held:
“…where the respondent has failed to follow her own policies relating to the Trafficking Convention, which impact upon whether and in what circumstances a person might be given leave to remain as a victim of trafficking, the weight to be given to the respondent’s side of the proportionality balance may, depending on all the circumstances, be significantly reduced”.
Although speculating that instances of such challenges are unlikely to be commonly encountered, the UT accepted that even where there was no risk on return on asylum/Art.3 grounds:
“…a “conclusive grounds” decision that is found by the tribunal to have been reached irrationally may well lead to the tribunal deciding that removal at this stage would be a disproportionate interference with the appellant’s Article 8 rights.” (para.33)
The UT confirmed that it was then open to the SSHD to remake the decision, seeking to rectify any errors of law.
At para.35, the UT observed that an irrational trafficking decision should be afforded no weight in an immigration appeal. However, acknowledging the distinct processes behind trafficking decisions and immigration appeals, the UT added that even where the trafficking decision was “impeccable” it was perfectly possible for a tribunal to reach a different conclusion. “Conclusive grounds” decisions were reached on the balance of probabilities, and moreover, the tribunal may have additional evidence on appeal that was not before the Competent Authority.
At para.36, the UT added that a positive “conclusive grounds” decision will point strongly in favour of an asylum/Art.3 appeal, although it will not necessarily be determinative.
The UT then turned to give important clarification to AUJ (Bangladesh). It will be noted that AUJ was a judgment by UTJ Gill, who also sat on the panel in DC. Para.62 of AUJ appears to limit challenges to “conclusive grounds” decisions to grounds of irrationality only. However, the UT in DC noted that this had to be seen in light of their analysis of MS (Pakistan), and that in fact there was:
“no question of the tribunal deciding a protection appeal being bound to accept a “reasonable grounds” or a “conclusive grounds” decision, unless that decision is shown to be perverse.”(para.39)
In explaining the proper meaning of para.63(2) of AUJ, the UT in DC held that even where there is no issue as to risk on return, the fact of being a victim of trafficking may remain relevant to appealing a removal decision. The UT gave the hypothetical example of a case where the fact of being trafficked may have caused physical or psychological harm to the appellant, with consequent medical needs that may need to be addressed by the tribunal as part of an Article 8 claim.
Referring to ES (Albania), the UT in DC endorsed the principle that a “conclusive grounds” decision was not of primary relevance to the determination of an asylum appeal as “plainly correct” (paras.45-46). However, it was clarified that notwithstanding the reasoning in ES, there was no distinction to be drawn by the different appeals regimes in MS and ES (para.46). ES was the judgment of UTJ Finch, who also sat on the panel in DC.
Finally, the UT in DC turned to the High Court decision in R (MN). The UT adopted the findings of Farbey J at paras.45-48 and 55-64 of MN. Key passages include:
- The distinction between the United Kingdom’s obligations under ECAT and its non-refoulement obligations is reflected in the Secretary of State’s policies about the grant of leave to enter or remain. The policy of granting discretionary leave to victims of trafficking states that it is intended to provide an additional ground for remaining in the United Kingdom ‘based on…individual circumstances’ where the victim does not qualify for other leave ‘such as asylum or humanitarian protection’. The policy is not a substitute for, or an addition to, the United Kingdom’s non-refoulement obligations.
- ..the appropriate standard for the assessment of a claim to have been trafficked will depend on the legal issue to which it is relevant. If the issue is whether a person will suffer persecution under the Refugee Convention or ill-treatment prohibited by article 3 ECHR, the lower standard will apply. If the issue is whether a person has the specific rights available to victims of trafficking under ECAT, the standard has been rationally set by the Secretary of State as the balance of probabilities…
- In principle, it is possible that the Secretary of State may reject a trafficking claim on the balance of probabilities but accept the same evidence in an asylum claim on the lower standard…
The judgment in DC therefore forms a useful summary of the relevant caselaw, and a consolidation of the key principles when dealing with the interaction between trafficking decisions and immigration appeals. It also opens the way for rationality challenges to NRM decisions, albeit narrow in scope, even where there has not been a preceding judicial review. Furthermore, the judgment recognises that establishing an appellant as a victim of trafficking can remain relevant to Art.8 issues, giving the example of mental health or medical needs arising as a consequence of trauma.