Rantsev
(Application No. 25965/04) 7 January 2010, where there had been held to be a failure to protect a trafficked woman in Cyprus. The evidence indicated that none of the anti-slavery provisions or human rights safeguards in the United Kingdom had been ratified by Vietnam. Mr Lingajothy relied on what was said in the Country of Origin Information Report (COIR) of April 2012 and the bundles previously put in. As regards the COIR he relied particularly on paragraphs 22.35 and 22.37. There was an Article 4 obligation in respect of a risk of re-trafficking if she returned to Vietnam. The traffickers had expected to gain from her. She might be a vulnerable person on return with two children. The nature of the obligation under Article 4 was protection. The state of transit, the state of origin and the state of destination were all states with a duty to protect. 7. As regards the children again reference was made to section 55 of the Borders, Citizenship and Immigration Act 2009 as set out in the skeleton. It was a question of the best interests of the children. The Tribunal was referred to the appellant’s statutory declaration. She had been to the Vietnamese Embassy. She had gone to obtain ID and even that was denied and it was an open and shut case. That was only one element of the matter however. It would be argued on behalf of the Secretary of State that nationality could come from either parent, but the appellant had been told something other than that. A number of embassies did not treat their nationals favourably when abroad, especially when asylum had been sought, so not much weight should be attached to that. It was a question of whether they would be given passports. The appellant and the children could not be returned to an uncertain future. There was every indication of a lack of protection on return. She had been found to be credible and to have been trafficked. There were legal and moral obligations and someone’s life, particularly with children, could not be second-guessed. 8. In his submissions Mr Saunders argued that, although the appellant had been trafficked from Vietnam to Hungary, she had not been trafficked to the United Kingdom for sexual or other exploitation. She had been helped to come to the United Kingdom to rescue her from that fate. After her arrival here she had not been involved in any kind of exploitation. She had had two relationships and had given birth to two children. Article 4 applied to trafficking. The case in EK [2013] UKUT 00313 (IAC) had been put on the basis first that the appellant there had been trafficked into the United Kingdom and within the United Kingdom and also that by virtue of the Anti-Trafficking Convention the United Kingdom assumed protective and remedial obligations extending to medical assistance and recovery. In that case the Entry Clearance Officer had neglected to give EK, a domestic worker, a leaflet telling her her rights and this had triggered the United Kingdom’s obligation. 9. If one assumed that the duty had been triggered, the United Kingdom could not advise as the appellant had come to the United Kingdom illegally and had not identified herself to the authorities for some time. She had seen a psychiatrist in September 2011. He had assessed her as suffering from depression but that her condition fell short of a diagnosis of post traumatic stress disorder. It was not clear therefore what help she needed that the United Kingdom was obliged to offer her. Nor was it clear whether she had taken up any of the recommendations made by Dr Gupta. He had recommended that the report go to her GP. It was unclear how the United Kingdom could take things further and the evidence was lacking to show a failure to do so. There was no indication of any other obligations. In Rantsev the Cypriot police had failed to handle the case properly and investigate properly and hence the case. There was no shortcoming in the Home Office’s conduct in this case in respect of the appellant’s trafficking to an intermediary country. There was nothing in her evidence to show trafficking or sexual abuse here. 10. On the citizenship point, the appellant had gone to the Vietnamese Embassy. It was not known what the nature of her approach to them was and what information she had given. It was in her interests to say they would not document her. Mr Saunders referred to the document that he had put in setting out the law on Vietnamese nationality. It was clear from Article 16 that nationality could be derived from either parent. It was clear that the Vietnamese authorities were willing to look at evidence. The appellant should be able to get a copy of her Vietnamese birth certificate. There was no question of her birth or ancestry being in doubt. The Tribunal should not accept that establishing nationality would be closed to her or her children. 11. As regards the situation to which they would return in Vietnam, the Tribunal was referred to the refusal letter, particularly at paragraphs 26 and 28 and the matters set out there concerning internal relocation. Vietnam was a large, populous country. Measures had been taken to do something about trafficking. Clearly it occurred, but the evidence showed that there were systems in place. The appellant was not wanted by the authorities so returning on documents would not necessarily be known to the traffickers. She was a young woman and healthy as far as was known. The only medical evidence was two years old. It did not show she could not work. It was a mere possibility, and no more, of her coming to the traffickers’ attention. 12. In respect of the Article 8 issues, her own stay here had been relatively short. She had failed to identify anything beyond the duration of her stay to render her private life deserving of protection. The children had been born respectively in December 2010 and November 2011. They were therefore not in a position to have their own opinions as to what was best for them. The Tribunal was asked to assume it was in their best interests to stay in the United Kingdom but that was premised on the assertion of a lack of safety for them and their mother in Vietnam. There was no freestanding section 55 claim in the sense that there was no evidence to support it. The children were very young. It could be assumed they were happy at nursery but that was all. Their best interests were to remain with their mother. It would not be unsafe for her to return to Vietnam. There were no obligations on the United Kingdom arising from her having been trafficked some years ago to Hungary. The appeal should be dismissed. 13. By way of reply in the respect of the EK issue Mr Lingajothy referred to paragraph 3 at page 2 of his skeleton. The appellant was leading a near-normal life in the United Kingdom and had been receiving treatment but that would not be so if she was removed. Rantsev set out the ambit of protection and the United Kingdom fell within that. The Tribunal was invited to look at her witness statement in regard to the matter of contention that she had not been sexually exploited in the United Kingdom. She had two children by two different fathers and did not know them. It should be considered what that told us. She might not be volunteering information about certain matters. 14. With regard to Article 8 there was family life with the children and also the issue of physical and moral integrity in respect of her private life. This had a lot of force. The Tribunal was referred to what was said at page 13 of the psychiatrist’s report. There was enough in that report as to the consequences and the effects of her having been trafficked and the impact on her future rehabilitation in Vietnam. With regard to protection and what was said in the refusal letter, Mr Lingajothy pointed to paragraph 22.35 of the COIR again. He noted from the previous paragraph that domestic violence was not criminalised in Vietnam. There was the case law on medical treatment. Protection was required to be sufficient. It was argued that in Vietnam there was no sufficiency of protection for the appellant as a trafficked woman. She came within a social group. There was reference in the skeleton to the case of AZ with respect to Thai women. There had been a lack of the necessary protection and it would breach the state’s obligations to return her. As regards the children and the documents, she was within a social group and seeking international protection and although she did not wish the protection of Vietnam the UK was requiring her to do so. That impacted on our obligations. The appeal should be allowed. 15. The determination was reserved. 16. Subsequent to the hearing, it became clear that there had been no submissions on the question of whether the United Kingdom owes any obligation under the Anti-Trafficking Convention to a person such as the appellant who, though she was a victim of previous trafficking (from Vietnam to Hungary), had not been trafficked into the United Kingdom, whence she came from Hungary. The hearing was therefore reconvened to hear argument on the point, with final submissions being made on 15 December 2014 when Judge Allen was joined by Judge Coker, subsequent to a number of adjournments following brief hearings on 13 November 2013 and 29 April 2014. There was no objection to the addition of Judge Coker to the panel. 17. A new issue was raised in an addendum to the appellant’s witness statements, dated 12 November 2013. With reference to the man with whom she initially stayed in the United Kingdom she said that he had kept trying to force her to have sex with him, left her once without food and money for two days and, after his return raped her, leading to her pregnancy, and eviction by him when he learned of her condition. Thereafter the appellant was accepted into the National Referral Mechanism, was given the 45 days rest period as prescribed by the Anti-Trafficking Convention and was interviewed in September 2014. In that interview she said that a security guard, Nguyen, helped her to leave Hungary by introducing her to Mr Tuan, with whom she stayed, living normally, for about twenty days. Mr Tuan gave her a passport and told her to follow a white man, who gave her an air ticket and she went with him to the United Kingdom. He left her at a railway station. She had been given the number of a Mr Long, and she called him and he took her to Birmingham. He threatened her and eventually she submitted to having sex with him. After that he treated her very well, and she thought he was not a bad man, although he had kept her locked in his flat, threatened her and raped her. When he learned that she had become pregnant he wanted her to have an abortion. She refused, and he pushed her over. About a month later she left the flat, as he wanted her to leave, and she stayed initially with a Ms Thuy whom she met at a station, and thereafter with friends of Ms Thuy’s. She left them shortly before her baby was born and went to live with Mr Cuu. He is her current partner (though they do not live together) and the father of her other two children. 18. At the hearing on 15 December 2014 Mr Duffy referred us to a decision that had been made on 11 December 2014 in which it was accepted by the Competent Authority that the appellant had been trafficked from Vietnam to Hungary, but, on account of discrepancies in what she said, did not accept that she had been trafficked into the United Kingdom from Hungary. 19. With regard to the specific matter in respect of which the appeal had been re-opened, Mr Duffy referred to the respondent’s guidance entitled “Victims of Human Trafficking – Competent Authority Guidance”, which is valid from 24 October 2013. Two particular paragraphs were relevant, set out at page 60 of the guidance. There it was said that a person who claimed to have been trafficked or exploited overseas who subsequently travelled to the UK of their own accord independent of their alleged trafficker was unlikely to be considered a victim of trafficking for the purposes of the Anti-Trafficking Convention, but since it was possible that such a person who had fled to the United Kingdom to escape a trafficking situation would still be traumatised by their experience, and unless the case met Dublin II arrangements and another European Union Member State was taking responsibility for the case, the Competent Authority was required to offer the victim help and protection in the United Kingdom under the Anti-Trafficking Convention. 20. The issue of risk on return had been dealt with at the previous hearing. The respondent did not dispute that the appellant had been trafficked into Hungary, but there was a dispute as to whether she had been trafficked into the United Kingdom due to discrepancies in her evidence. It was accepted that the respondent’s trafficking obligations were engaged as there was no Dublin II point, and she engaged with the NRM. She had had enough time for the period of reflection. On her account she had been trafficked into the United Kingdom several years ago and there is no indication of ongoing treatment being required. Further, it was accepted that she had been trafficked into Hungary. No further period of leave was needed. 21. In his submissions Mr Lingajothy referred to the appellant’s addendum to her witness statement in which she said she had been trafficked into the United Kingdom as well as having been trafficked into Hungary. The Tribunal was asked to look at the comprehensive interview records. She had been trafficked into Hungary and into the United Kingdom. The case fell within Article 10 of the Anti-Trafficking Convention. 22. Mr Duffy said that the respondent did not accept the account of having been trafficked into the United Kingdom bearing in mind the questions and answers at interview. She had changed her evidence. This might not matter, as it was accepted she had been trafficked into Hungary and was dealt with under the NRM. There was nothing to be gained by quibbling on this point. The trafficking from Vietnam to Hungary was indicative of gang involvement whereas, on her later account, the trafficking from Hungary to the United Kingdom was the action of individuals and was not on the basis of prostitution or false labour. The trafficking relevant to risk on return was from Vietnam to Hungary and not Hungary to the United Kingdom. 23. Mr Lingajothy argued that Article 12 of the Anti-Trafficking Convention was engaged and the Secretary of State could not avoid her responsibilities. There were legal and moral obligations on the respondent if the appellant was trafficked from Hungary to the United Kingdom but not to the same extent if she had only been trafficked from Vietnam to Hungary. The decision of the Upper Tribunal in EK was applicable bar one point in that there the person had come to the United Kingdom voluntarily, but otherwise they were comparable situations. 24. The appellant had the right to be protected in the United Kingdom because she had been trafficked here and this gave rise to responsibilities under Article 4 of the Human Rights Convention as had been argued previously. She had been brought to the United Kingdom and later exploited. The Tribunal was referred to the psychiatric report about the ongoing counselling help. The responsibilities of the Secretary of State under the Anti-Trafficking Convention and under Articles 3 and 8 of the Human Rights Convention were engaged. There was an asylum argument also because of her circumstances in the United Kingdom. 25. With regard to Article 3, a fear of return to Vietnam existed where the gangs operated and could target her. She now had three children, all of whom had been born in the United Kingdom, and that was a further factor on return. The children were not entitled to Vietnamese nationality. They had gone to the Vietnamese Embassy and were told they did not qualify straight away: also it was a matter of risk as she was a victim of trafficking and had three children by different fathers and she would be ostracised and they could be seen as a social group. The best interests of the children required to be considered. She had given good reasons for not going to the police. The respondent was not relying on Dublin II. This was a very strong case and the appellant was a victim of trafficking. 26. Mr Duffy by way of response argued that it was accepted that the Anti-Trafficking Convention was engaged. There were two trafficking decisions, the first in 2011 and now the 2014 decision. The change in evidence was of relevance. There was though no dispute that she had been trafficked and the question is what was the decision under appeal, and it was to remove an illegal entrant and asylum being an issue. It was a question of risk on return and that had been dealt with. It might be argued that the decision was not in accordance with the law if it had not been dealt with. It was unclear whether the trafficking decision was appealable to the Upper Tribunal and it could be a matter of judicial review. Articles 12 and 14 of the Convention had been applied. Under the latter she would obtain a residence permit if successful on referral to the NRM but the criteria under the Article were with reference to her personal situation or co-operation in criminal proceedings. There had not been shown to be an ongoing need for treatment and she was not helping the police with their enquiries. 27. The Competent Authority had said no with regard to the residence permit requirement. The Convention left it up to them whether it was necessary. That could be looked at in the context of Article 3 or Article 8. The Competent Authority had not received up-to-date medical evidence and that was one reason for this decision. It was not known what ongoing treatment the appellant was receiving and whether or not it would be available in Vietnam. Mr Duffy relied on the decision of the Competent Authority on that and the conclusion that there was no need for a residence permit for either reason. 28. Risk on return had been dealt with at the previous hearing. For the sake of completeness Mr Duffy had put in the most recent US State Department Report and the most recent Operational Guidance Note. It should be noted that the father of two of the children was Vietnamese with no status in the United Kingdom and that muddied the issue as to whether the appellant would return as a lone mother. There were no removal directions for him but he was her partner and as father of two of the children he could help. 29. With regard to the children the point was taken about the authorities and their response but two of the children had a Vietnamese father and a Vietnamese mother so it would be odd if they would be rendered stateless on the basis of being born outside Vietnam. In fact Mr Duffy was of the view that the fathers of all three children were Vietnamese. It was not likely to be a long-term problem. The appellant would not be removed without the children. Questions of nationality were to be resolved on the basis of the balance of probabilities. 30. As regards the question whether the threshold was the same for Article 3 for the appellant bearing in mind any risk of ill-treatment because of the trafficking, it needed to be taken into account. It was part of the assessment of risk on return. There were factors that made her more vulnerable and if she was at risk from the traffickers then she would succeed. There was no similar case from other authorities about return for a person who had been trafficked. The matter had to be assessed in light of her vulnerability. 31. As regards any ongoing need for medical treatment and whether that gave rise to Article 3 or Article 8 issues as it arose from trafficking, it was a factor in her favour and was true of anyone who was vulnerable and greater weight on her side of the scales would be accorded to it. 32. By way of reply Mr Lingajothy argued that although there were no cases of trafficking to Vietnam it was relevant to take into account cases from China and Thailand as relevant in regard to south-east Asia in respect of the question of risk. On the issue of the children’s nationality, the first child did not have the same father as the other two and it seemed according to the appellant that that child had British nationality and the issue of paternity had been explored earlier. This created more questions than answers. That child could have the right of abode in the United Kingdom. The Vietnamese had said they did not confer nationality on children born outside Vietnam if the father was not Vietnamese. Nationality was acquired via the father. 33. With regard to the argument that there was no ongoing responsibility, there were issues under Article 12 concerning education and medical treatment etc. but there was more. There was a question of her treatment and rehabilitation which was ongoing and reference was made to the counsellor’s letter that had been put in. There had been a psychiatric report provided to the First-tier judge where there was reference to the appellant demonstrating suicidal ideation. She was a vulnerable person. There were obligations under the Convention and moral obligations to protect someone in her position. 34. We reserved our determination. 35. We consider first the trafficking issue. 36. We have set out in an Appendix the relevant provisions applicable in this case. They are Article 4 of the European Convention on Human Rights 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