Case No. UKUT-00170-(IAC)

and particular provisions of the Council of Europe Convention on Action against Trafficking in Human Beings (CAT). 37. In Rantsev the Court of Human Rights concluded that trafficking within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention, falls within the scope of Article 4. The Court said that Article 4 imposed a positive obligation on Member States to put in place an appropriate legislative and administrative framework to ensure the practical and effective protection of the rights of victims or potential victims of trafficking. In Rantsev a violation of Article 4 was held to have occurred in that there were significant weaknesses in the general legal and administrative framework and in Cypriot immigration policy, which had the result that the regime in Cyprus did not afford practical and effective protection against trafficking and exploitation 38. As part of the United Kingdom implementation of the Anti-Trafficking Convention, a national referral mechanism (NRM) was established in April 2009. This consists of first a “multi-agency Competent Authority” which is a central point of contact for bodies such as the police and local authorities who may encounter victims of trafficking. The second element comprises linked but separate Competent Authorities to deal with situations where trafficking is raised as part of an asylum claim or in the context of other immigration processes. There is reference at page 5 of the Home Office guidance to which we have referred above to the particular Competent Authorities, one being the UK Human Trafficking Centre (UKHTC) which deals with all cases involving a UK or EEA national and acts as the first point of contact for referrals, and the Home Office Competent Authority which is concerned with situations where trafficking is raised as part of an asylum claim or in the context of another immigration process. 39. In the respondent’s letter to the appellant of 11 December 2014 detailed consideration was given to her case and it was concluded, as noted above, that she had been trafficked from Vietnam to Hungary. However it was not accepted that she had been trafficked into the United Kingdom from Hungary, bearing in mind the discrepancies in her evidence in that regard. It was noted that the explanation she gave for this was: “because the Home Office asked me simply whether I had a relationship with him or not. I said yes and later asked whether I agree or not. I said yes. They didn’t ask me more in detail whether he forced me or not. It is true I got relationship with him because I thought if I have a good relationship he will have a good feeling about me.” 40. It was noted that at interview on 20 July 2011 when explicitly asked whether this man had in any way forced her to have sex with him she responded, “no it was consensual”. This answer was not amended or clarified for over two years. Consideration was also given to a report from Ashiana [not further identified in the decision letter, but assumed to be a reference to the Ashiana Network, which provides help with issues around domestic violence] which provided a self-reported account by the appellant and an explanation for her seemingly inconsistent description of her treatment by this man. The letter writer considered that whilst this explanation was plausible she had not provided evidence to the required standard of proof to substantiate the claim of having been exploited in the United Kingdom. We agree. The clear and significant discrepancy in the appellant’s evidence leads us to conclude that the more recent assertion, that she was trafficked into the United Kingdom and ill-treated, is opportunistic, and the true account of events is the one she gave originally. 41. Consideration was also given to whether it was necessary for the appellant to have a period of leave in the United Kingdom as a victim of human trafficking. There was no information to suggest that she was assisting with a human trafficking investigation. As regards her personal circumstances, the report from Ashiana said that she had chosen to access counselling which would commence at her GP practice on 17 October 2014, but despite further requests being made to Ashiana and the appellant’s solicitor as to whether she had actually entered into counselling, whether the counselling was specifically addressing trauma relating to her exploitation and the required length of any counselling, no information had been received. As such there was insufficient evidence to afford her leave on account of her personal circumstances at the time. 42. The point was made by Mr Duffy that any challenge to this decision might have to be by way of judicial review if it were not to be argued as a decision not being in accordance with the law. Insofar as we have jurisdiction to deal with this matter on a statutory appeal and bearing in mind that the point has not been pleaded, we would consider that it has not been shown that the decision is not in accordance with the law as the respondent has considered the relevant criteria as to whether or not leave should be granted and has come to a conclusion to which she was clearly entitled to come. The relevant requirements of the Anti-Trafficking Convention have been observed by the respondent in the decision as a whole, and there can be no arguable challenge to that decision. 43. On the specific question of whether or not the Convention extends to a situation such as this where a person in the appellant’s position is an historical victim of trafficking rather than having been trafficked into the United Kingdom, we note Mr Duffy’s submission with regard to page 60 of the respondent’s guidance concerning people who had been exploited overseas and the fact that the respondent, unless it is a Dublin II (or now Dublin III) case, considers that the Competent Authority must offer the victim help and protection in the United Kingdom under the Convention. However in the previous paragraph it is said that a person who claims to have been trafficked or exploited overseas and subsequently travels to the United Kingdom of their own accord, independent of their alleged trafficker, and passes through a number of countries on the way, is unlikely to be considered a victim of trafficking for the purposes of the Convention, because they are likely to be far removed from that trafficking situation and therefore very unlikely to benefit from being considered under the Convention. 44. Although the discretion thus set out, and exercised by the respondent in this case goes some way, we consider that it does not answer the point of law which we identified as the reason for reconvening the hearing. In our view the responsibilities of the respondent under the Convention extend beyond the person who has been trafficked into this country to the victim of historical trafficking into the country from which they later travelled into the United Kingdom. It seems to us that that is a proper reading of the terms of the Convention. 45. We derive support for this conclusion from remarks of the Administrative Court in Atamewan 46. Aikens LJ, with whom Silber J agreed, held that this passage in the guidance was based on a misinterpretation of Articles 4, 10(2) and 13(1) of CAT. The use of the present tense in Article 4(e) was used: “in the sense that the person concerned has attained the status of ‘victim’ of trafficking because he is someone who is or has been the subject of any form of “trafficking” as defined in Article 4(a) (para 70). The word ‘victims’ in the heading to Article 10 must mean the same as in Article 4(e): so it meant anyone who is presently, or has been, the victim of trafficking. There was nothing in Article 13 (contrary to the view expressed in the guidance) to warrant the view that Article 13 contracts some of the provisions in Article 10(2) and 12. Article 13 is intended to apply to victims of trafficking who are allegedly present in a Party’s territory or who are legally present with a short-term residence permit, the obligation then being to provide a minimum 30 day period of ‘recovery and reflection’. The last two sentences of Article 13(1) confirm the general obligation set out in Article 10(2) that when a Party has concluded that there are ‘Reasonable Grounds’ that the person is a victim, then that Party must authorise the person concerned to stay in its territory during the ‘recovery and reflection period’. To take an extreme case, even a person who was trafficked to the United Kingdom 30 years ago and thereafter managed to create a new life for himself would, if he then came forward and claimed he was the victim of trafficking, be entitled to the benefit of the Article 10(2) process of deciding whether there were ‘Reasonable Grounds’ for believing he was trafficked. 47. This reasoning, in our view, is clearly applicable to a person in the situation of the appellant, who is equally a victim of historical trafficking, albeit outside the United Kingdom. Although Atamewan 48. However, that does not advance the appellant’s case. The relevant matters have been given appropriate consideration in the decision letter of 11 December 2014 in light of the acceptance that as this was not a Dublin II case, help and protection were required to be offered under the Convention. What we have to say above concerns the respondent’s legal responsibilities in a case where we might otherwise decide that her responsibilities under the Convention were engaged. 49. An issue of significance in this case is clearly the question of the situation that the appellant would face on return to Vietnam. The refusal letter quotes at length from the US State Department Trafficking in Persons Report on Vietnam of 2010 which refers to the Vietnamese government sustaining some efforts to protect victims of transnational sex trafficking and outlines additional victim protection plans in its new anti-trafficking law, though it was said that it did not make sufficient efforts during the year to identify or protect victims of labour trafficking or internal trafficking and had yet to employ systematic procedures nationwide to identify proactively and effectively victims of trafficking among vulnerable populations. There is reference to significant deficiencies in the referral system that exists, though there are three trafficking shelters in Vietnam’s largest urban areas that provide counselling and vocational training to female sex trafficking victims but the government lacks the resources and technical expertise to support shelters adequately. 50. Mr Lingajothy referred to paragraphs 22.35 to 22.37 of the COIR. This refers to a Freedom House Report of 2011 stating that thousands of women each year are trafficked internally and externally and forced into prostitution. There is reference to a 2007 report of the International Federation for Human Rights that the persistence of trafficking in women and girls and the exploitation of prostitution are issues of concern for the committee. Mr Lingajothy also referred to the point at paragraph 22.34 that domestic violence is not criminalised in Vietnam. 51. The appellant left Vietnam in 2008. The respondent has made the point that Vietnam is a large country of some 90 million people with a number of large cities in it. If the appellant were able to return, a matter to which we shall have to return, she would not be a person of any adverse interest to the government, and the chance of coming across her traffickers is very slight. The Anti-Trafficking Convention and Article 4 do not suggest that a victim of trafficking is unreturnable to the country from which they were trafficked. We consider that she has not shown that she faces a real risk of ill-treatment on return to Vietnam, whether on account of her previous experience as a victim of trafficking or otherwise. 52. She would return to Vietnam as a single mother with three very small children. There is no witness statement from Mr Cuu. He does not have status in the United Kingdom, according to the appellant (Q118 of the September 2014 interview). The appellant’s evidence is that they are partners, though they do not live together. It is entirely unclear whether he would accompany the appellant and the children to Vietnam. It has not been shown that the background evidence indicates that returning without her partner and with the children would place her at risk of breach of her Article 3 rights or that even if she is a member of a particular social group of trafficked women from Vietnam, she faces a real risk of harm on that account. It is speculative and no more to suggest that she would face a real risk of coming across her previous traffickers or that as a woman in the circumstances in which she would return she faced a real risk of being trafficked by someone else. We do not understand it to have been suggested that she would be unable to make contact again with her brothers, born respectively in 1989 and 1991, or with her sister born in 1993. There is evidence, in the US State Department Report of 2010, referred to in paragraph 50 above, to support the respondent’s conclusion in the decision letter that there is a sufficiency of protection provided by the authorities in Vietnam. Accordingly we find that she has not shown a real risk on return to Vietnam of persecution or a breach of her human rights. 53. As regards the medical evidence, the appellant saw a psychiatrist in September 2011. He assessed her as suffering from depression, falling short of Post-Traumatic Stress Disorder. It was said that she would benefit from being prescribed psychotropic medication, following a discussion with her GP in the first instance, and that her treatment plan might require a further assessment from her local Community Mental Health Team. The most recent report is in a letter from Mr Baker, a counsellor at the Flowers Health Centre in Sheffield. It is dated 12 December 2014. Mr Baker has been treating the appellant since 17 October 2014. He says that she is currently subject to flashbacks, debilitating headaches, nightmares and broken sleep, all of which are symptomatic of Post-Traumatic Stress Disorder, and which severely hamper her attempts to create a normal life. She has also indicated that she has thoughts of suicide. 54. The appellant has made a statutory declaration concerning a visit she made to the Vietnamese Embassy on 28 August 2013 at which time she said she was told that the Vietnamese granted citizenship through paternity so therefore her children could not obtain citizenship because the nationality of their father is unascertainable or unknown. It seems from her evidence that both the fathers are Vietnamese. She said that she did not have any contact with her siblings or grandmother and she did not know where they were and did not have any paperwork in relation to her nationality including absence of proof of addresses in Vietnam. She has provided a document from the embassy stating that she is not eligible to obtain a Vietnamese passport or travel documents as she is lacking any of the listed types of documents. 55. Mr Saunders produced a copy of the law on Vietnamese nationality. Article 16 states that a person born inside or outside Vietnam has Vietnamese nationality if either of their parents at the time of their birth has Vietnamese nationality. We consider that this is preferable evidence to what was said by the appellant, i.e. what she says she was told as recorded in the statutory declaration, and accordingly it will be possible for her to pass on the Vietnamese nationality to her children, according to this provision. As regards the documentation required to be produced in order to prove Vietnamese nationality, that is set out at Article 11. One of the following is required: first, birth certificate, people’s identity card, Vietnamese passport, or decision permitting the naturalisation in Vietnam or adoption. This essentially coincides with the wording of the document produced by the appellant from the Embassy which refers to providing a copy of excerpt of the Presidential Decree granting the holder Vietnamese citizen, current or previous Vietnamese passport, current or previous Vietnam identity card, birth certificate or excerpts of birth register. 56. We agree with the respondent that it should not be beyond the appellant’s abilities to obtain a birth certificate or excerpt of the birth register. She has not said that she does not know where she was born, and there can, we think, properly be assumed to be a record of that and for that to be identified and submitted to the Vietnamese authorities. On the evidence we do not accept that the appellant is unable to provide documentation proving her Vietnamese nationality and as a consequence enabling her and her children to obtain documentation enabling them to return to Vietnam. 57. The best interests of the children clearly are a primary, not the primary consideration in assessing the situation under Article 8. They are a family and would return as a family. Mr Lingajothy makes the point that part of Article 8 private life is physical and moral integrity, and that must of course be borne in mind in assessing the proportionality of removal. The appellant was clearly treated very badly while in Hungary and that is bound to have left its mark, as noted by Dr Gupta in his report. It seems that only very recently have the recommendations for further assessment been taken up, as evidenced by the brief report from Mr Baker. Undoubtedly it would be difficult and problematic for her to return to Vietnam having experienced what she did as a result of the trafficking to Hungary, and returning as a single woman with three small children (on the assumption that Mr Cuu does not return with them) and with the symptoms to which Mr Baker refers. The interests of the state in maintaining effective immigration control have to be placed into the balance against the interests of the appellant and of her children. Their best interests are clearly to be with her. We consider that the balance in the proportionality exercise favours the maintenance of immigration control over the interests of the appellant and her children (whose best interests are in staying with her) in remaining in the United Kingdom. 58. This appeal is therefore dismissed on all grounds. Signed Date Upper Tribunal Judge Allen APPENDIX 1 European Convention on Human Rights