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Upper Tribunal opens door for trafficking challenges in human rights appeals

Upper Tribunal opens door for trafficking challenges in human rights appeals

The Upper Tribunal has ruled that human rights appeals may be allowed on the ground that the Secretary of State has unlawfully failed to acknowledge that the appellant is a victim of trafficking.

DC (Trafficking, Protection/Human Rights appeals : Albania) [2019] UKUT 351 (IAC) provides little guidance on how tribunals should approach Article 8 claims made on this basis. Even though the tribunal correctly describes this situation as having “narrow ambit”, it will surely have to revisit the practical implications in a later appeal.

Unsurprisingly, the Upper Tribunal confirmed that whether a person is a victim of trafficking will be relevant in both protection and human rights appeals, so a positive conclusive grounds decision will form part of the evidence. The tricky situation, in sub-section (b) of the headnote, is where the appellant successfully argues in a human rights appeal that a negative conclusive grounds decision was unlawful (confusingly the headnote only refers to irrationality but it can inferred from the judgment that the tribunal is addressing all forms of public law error, including breach of policy). The tribunal states that it would permissible for a tribunal to allow an appeal on this basis, but only to the extent that removal is disproportionate while the Secretary of State rectifies the error.

Effectively, the decision allows the appellant to seek judicial review of a negative conclusive grounds decision within a statutory appeal.

Alex Chakmakjian of 1MCB Chambers, who acted in the case, adds that the decision

opens the way for rationality challenges to National Referral Mechanism 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 Article 8 issues, giving the example of mental health or medical needs arising as a consequence of trauma.

More from Alex on the 1MCB website.

The official headnote

In the light of the judgment of Flaux LJ in Secretary of State for the Home Department v MS (Pakistan) [2018] EWCA Civ 594 and subsequent decisions of the Upper Tribunal and Administrative Court, a tribunal deciding a protection or human rights appeal, which concerns alleged trafficking within the scope of the Council of Europe Convention on Action against Trafficking in Human Beings and decisions of the Competent Authority (CA) under the United Kingdom’s National Referral Mechanism, should proceed as follows:

(a) In a protection appeal, the “reasonable grounds” or “conclusive grounds” decision of the CA will be part of the evidence that the tribunal will have to assess in reaching its decision on that appeal, giving the CA’s decision such weight as is due, bearing in mind that the standard of proof applied by the CA in a “conclusive grounds” decision was the balance of probabilities.

(b) In a human rights appeal, a finding by the tribunal that the CA has failed to reach a rational decision on whether the appellant has been the victim of trafficking, such as to be eligible for leave to remain in the United Kingdom for that reason alone, may lead the tribunal to allow the human rights appeal, on the basis that removing the appellant at this stage would be a disproportionate interference with the appellant’s Article 8 ECHR rights. This scenario is, however, of narrow ambit and is unlikely to be much encountered in practice.

(c) In a human rights appeal, the question whether the appellant has been the victim of trafficking may be relevant to the issue of whether the appellant’s removal would breach the ECHR, even where it is not asserted there is a trafficking-related risk of harm in the country of proposed return and irrespective of what is said in sub-paragraph (b) above: e.g. where the fact of trafficking may have caused the appellant physical or psychological harm. Here, as in sub-paragraph (a) above, the CA’s decision on past trafficking will be part of the evidence to be assessed by the tribunal.

Alexander Schymyck

Alex teaches Public Law at Queen Mary University of London and is due to start pupillage at Garden Court Chambers in October 2020

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