THE PRELIMINARY ISSUE
15. Counsel for the Appellant drew my attention to the recently reported case of AUJ (Trafficking – no conclusive grounds decision) Bangladesh [2018] UKUT 00200 (IAC); a case of which I was already aware. In this case, Upper Tribunal Judge Gill stated at paragraph 62(ii) that:
“in cases in which the Competent Authority has reached a negative “conclusive grounds decision” but the appellant continues to rely (in his statutory appeal) upon evidence that he had been a victim of trafficking or modern slavery, the judge should decide, at the start of the hearing and before oral evidence is given, whether the decision of the Competent Authority was perverse or irrational or not reasonably open to it. At this stage, evidence subsequent to the decision of the Competent Authority must not be taken into account. If (and only if) the judge concludes that the Competent Authority’s decision was perverse or irrational or one that was not reasonably open to it, the judge can then re-determine the relevant facts and take account of subsequent evidence”. 1 6 . However, this paragraph did not form part of the ratio of the case before Upper Tribunal Judge Gill. In the case of AUJ, a First-tier Tribunal Judge had adjourned an initial hearing of AUJ’s asylum appeal so that the Respondent could refer AUJ’s case to the Competent Authority under the National Referral Mechanism. T he Respondent failed to make any such referral and at the adjourned hearing the Appellant withdrew his consent to any referral being made. Therefore, as there had not been any referral into the National Referral Mechanism, no negative conclusive grounds decision had been made. 1 7 . In addition, t his part of Upper Tribunal Judge Gill’s decision did not form any part of the headnote to the case and was clearly obiter. 1 8 . However, the Home Office Presenting Officer did rely on the case of The Secretary of State for the Home Department v MS (Pakistan) [2018] EWCA Civ 594. 1 9 . After considering the oral submissions made to me at the hearing and Articles 14.5 and 40 of the Council of Europe Convention against Trafficking in Human Beings and paragraph 10 of the recitals to Directive 2011/36/EU on preventing and combating trafficking in human beings and protecti
ng its victim , I gave further directions for the parties to make written submissions in relation to Convention and Directive and on the decision in MS (Pakistan). These directions were sent to both parties on 11 July 2018 and counsel for the Appellant filed his written submissions on 24 July 2018. When the Respondent had not provided any written submission in accordance with the directions, he was contacted to see if he intended to make any written submissions. No such submissions have been received and , having given the Respondent further time to take into account the holiday period, I now proceed to complete my decision. 20 . In paragraph 2 of MS (Pakistan) Lord Justice Flaux , giving judgment for the Court, noted that:
“The appeal raises an issue of principle as to the jurisdiction of the First-tier Tribunal and the Upper Tribunal on a statutory appeal under section 84 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) to undertake an indirect judicial review of a negative trafficking decision made by the Secretary of State in that individual’s case”. 21. He also went on to state that “In that context, the appeal concerns the scope and effect of the previous decision of this Court in AS (Afghanistan) v Secretary of State for the Home Department [2013] EWCA Civ 1469 ” . 22. It is important to note that in paragraph 18 of AS (Afghanistan) Longmore LJ said that:
“…a decision to refuse asylum is not itself an immigration decision appealable pursuant to section 82(2) of the 2002 Act (any more than a trafficking decision is such a decision). The relevant immigration decision is the decision to remove the appellant under section 10 of the Immigration and Asylum Act 1999 (see s.82(2)(g) of the 2002 Act). It is in reaching the decision to remove that the Secretary of State must consider relevant matters including (where relevant) whether an applicant for asylum is a victim of trafficking. No doubt, if a conclusive decision has been reached by the Competent Authority, First Tier Tribunals will be astute not (save perhaps in rare circumstances) to allow an appellant to re-run a case already decided against him on the facts….”. 2 3. In paragraph 17 of MS (Pakistan
) , Lord Justice Flaux state d that:
“Before considering the decision of the Upper Tribunal in more detail, it is convenient to set out some of the legal framework. At the time that this appeal was lodged, section 82(1) of the 2002 Act set out that a person against whom an “immigration decision” had been made could appeal to the Tribunal. Sub-section (2) then set out the categories of immigration decision, which included, so far as presently relevant at (g) a decision that a person was to be removed from the United Kingdom. The categories of immigration decision did not include a trafficking decision”. 2 4 . Therefore, it is clear that the Court in both AS (Afghanistan) and MS (Pakistan) were giving judgment on the role of a previous decision made by the Competent Authority in an appeal against removal under the previous appeal regime under section 82 of the 2002 Act which pertained prior to 20 October 2014. 2 5 . The appeal before me relates to a decision made after section 82 of the 2002 Act was amended on 20 October 2014, as she applied for asylum on 5 June 2015, and section 82 now reads:
“(1) A person (“P” may appeal to the Tribunal where-
(a) the Secretary of State has decided to refuse a protection claim made by P,
(b) the Secretary of State had decided to refuse a human rights claim made by P, or
…
(2) For the purposes of this Part- (a) a “protection claim” is a claim made by a person (“P”) that removal of P from the United Kingdom- ( i ) would breach the United Kingdom’s obligations under the Refugee Convention, or (ii) would breach the United Kingdom’s obligations in relation to person eligible for a grant of humanitarian protection”. 26. Therefore, her appeal was against the Respondent’s decision to refuse her protection claim not a decision to remove her from the United Kingdom. This was important for a number of different reasons. 27. Firstly, the only issue before the First-tier Tribunal was whether the Appellant qualified for protection under the Refugee Convention. Therefore, w hen reaching a decision , the First-tier Tribunal Judge was obliged to look at the evidence in the round and give it due weight before reaching a decision as to the credibility of the Appellant’s account. (See Karanakaran v Secretary of State for the Home Department [2000) EWCA Civ 11. ) 28. Secondly, after 20 October 2014, the First-tier Tribunal Judge could no longer find that the decision reached by the Respondent was not in accordance with the law, as this remedy had been removed from the 2002 Act. This is significant as the National Referral Mechanism was established to give effect to provisions contained in the Council of Europe Convention against Trafficking in Human Beings when the Convention was ratified but not incorporated into the law of England and Wales. Therefore, any failure to properly apply the National Referral Mechanism amounted to a failure to apply a policy and the remedy lay in a claim for judicial review. 29. A failure to properly apply the National Referral Mechanism could no longer give rise to the basis for dismissing an appeal under section 86 of the 2002 Act as the First-tier Tribunal Judge could only determine a matter raised in a ground of appeal and the only ground before him was whether the Appellant’s removal from the United Kingdom would give rise to a breach of the Refugee Convention. 30. Furthermore, Article 14.5 of the Council of Europe Convention against Trafficking in Human Beings states that:
“Having regard to the obligations of Parties to which Article 40 of the Convention refers, each Party shall ensure that granting of a permit according to this provision shall be without prejudice to the right to seek and enjoy asylum”. 31. Article 40 of the Convention states that:
“ (4) Nothing in this Convention shall affect the rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights law and, in particular, where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of non-refoulement as contained therein”. 32. As the United Kingdom has ratified the Convention, it is obliged to act in accordance with these Articles and not restrict the Appellant’s access to protection under the Refugee Convention even if she had previously been referred into the National Referral Mechanism. 33. Furthermore, the fact that the Government decided to adopt a balance of probabilities as the appropriate standard of proof for a conclusive decision within the National Referral Mechanism, as opposed to the far lower standard of proof applicable in Refugee Convention decisions , indicates that it did recognise that the two processes were to be distinguished from each other. 34. For al l of these reasons, the fact that the Competent Auth ority did not find , on a balance of probabilities, that the Appellant was a victim of human trafficking does not prevent the Tribunal finding that she is entitled to asylum as a person who has been subject to human trafficking on the lower standard of proof and in the light of all relevant evidence.