Asylos and ARC Foundation recently released a new report, Vietnam: Returned victims of trafficking, about the risks of re-trafficking, state protection and internal relocation for Vietnamese victims of trafficking returned from the UK. The report provides key new evidence which needs to be considered by Home Office decision-makers and tribunal judges dealing with asylum claims by Vietnamese trafficking victims. In my view, the evidence clearly shows that many victims are at serious risk of re-trafficking on return and are unlikely to be able to avail themselves of sufficiency of protection and internal relocation.

The Home Office’s Country Policy and Information Note on Vietnam: Victims of trafficking, released in April 2020, fails to reflect much of this evidence. While the CPIN contains much helpful material, its central conclusion – that many victims will be able to access effective protection from the state – is misconceived and should not be followed.

Support for trafficking victims

It is clear from the report that the Vietnamese state’s ability and willingness to provide protection is limited, for a number of reasons:

• The Vietnamese legal definition of trafficking does not fully comply with international standards. Some victims of trafficking will not be recognised as victims under Vietnamese law and will therefore be unable to access state protection, services and accommodation.
• Access to shelters and rehabilitation assistance requires a police certificate. For many victims this is extremely difficult to obtain. Some sources say that most victims do not get recognised, and survey data suggests that only 1 in 10 victims receive any assistance. 
• Recognition as a victim by the UK’s National Referral Mechanism will not automatically lead to the victim being certified as a victim of trafficking back in Vietnam. 
• Without a certificate, victims may be unable to access housing/social support or reintegrate into society. This exposes them to re-trafficking.
• Even with a certificate, state support is relatively limited. Victims can only stay in government-run shelters for 60 days. There are some non-state shelters, but not many, and some have closed due to lack of funding. Some victims are reluctant to use shelters, in particular due to the stigma associated with trafficking, and the shared accommodation in shelters may be re-traumatising for some victims.
• Internal relocation will not cure the economic and social vulnerabilities, including lack of employment and public services, that expose a victim to re-trafficking. It may exacerbate them.

The Home Office CPIN rightly acknowledges at paragraph 2.5.5 that “the governments [sic] definition of trafficking does not fully correspond with the internationally accepted definition”. It also acknowledges at paragraph 2.5.8 that

Access to government run services and shelters are unlikely to be available for those returning from the UK as they would not be in receipt of a victim’s certificate. 

However, bafflingly, the CPIN goes on to assert at paragraph 2.5.9 that “[w]here a person fears they are at risk from being re-trafficked they are likely to be able to access protection from the state”.

This assertion is surprising and is not explained. For the reasons set out above, it is clearly contrary to the evidence. 

Sufficiency of protection

In asylum law, the fact that the state prosecutes and punishes some traffickers does not necessarily mean that sufficient protection exists. The effectiveness of the system is to be judged by the systemic ability to deter and/or prevent persecution, not just punish it after the event: see AW (sufficiency of protection) Pakistan [2011] UKUT 31 (IAC). 

In Vietnam, where many trafficking victims will – demonstrably – not be recognised by the authorities and will receive no assistance from the state, it is hard to see how the state could be said to be providing them with effective protection. The Home Office claims to have been told by UN-ACT that “where the police are aware of cases involving victims of trafficking, they are able to afford victims effective protection”. It is not clear that this is an accurate reflection of what UN-ACT said, as I explain in my full legal note. Indeed UN-ACT is recorded as having said in the very same passage that “the Criminal Justice system is not a very effective witness protection system.”

The CPIN itself acknowledges in the very next paragraph that “the Vietnamese government consider many of those Vietnamese nationals that go to the UK and remain there illegally as being economic migrants”. It also says, at paragraph 6.3.5, that

the definition of trafficking victims in articles 150 and 151 ‘will never apply to them [victims of trafficking from the UK] as they agreed to go with the trafficker’… if they are over 16 but under 18, they must ‘prove that there have been fraud or cheating elements involved’ for being considered a victim of trafficking.

This accords with the Asylos/ARC evidence that many victims are not recognised as victims by the Vietnamese authorities. 

The CPIN also relies heavily on the case of Nguyen (Anti-Trafficking Convention: respondent’s duties) [2015] UKUT 170 (IAC). That case is not a Country Guidance case, nor does it deal with country conditions in the detail that a Country Guidance case would. The body of the determination deals with risk on return very briefly (paragraphs 49-52) and cites limited evidence – certainly far less evidence than the comprehensive Asylos/ARC Foundation report. The principal source relied upon in Nguyen appears to be the United States Department of State Trafficking in Persons Report for 2010, which is now very out of date.

Non-Country Guidance reported cases do not have the same status as Country Guidance. Although the summaries of the evidence in such cases can be relied upon, the assessment of the evidence is not binding unless it accords with pre-existing Country Guidance: see SI (reported cases as evidence) Ethiopia [2007] UKAIT 12. The obligation to follow findings of fact made in reported cases is limited to decisions involving “the same factual matrix” and, even then, does not apply where there is “good reason to revisit the earlier decision”: TR (CCOL cases) Pakistan [2011] UKUT 33 (IAC). 

In my view it would be wholly wrong for tribunals simply to follow Nguyen without having regard to the more comprehensive and up-to-date evidence contained in the Asylos/ARC Foundation report. 

Conclusion

Tribunals would be wrong to adopt the conclusions of the Vietnam trafficking CPIN without examining the evidence for themselves. The evidence clearly demonstrates that many Vietnamese trafficking victims will be at risk of re-trafficking on return and will not receive a sufficiency of protection from the state.

A more detailed legal note on this subject is on the Garden Court Chambers website.

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