United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: PA/08955/2018

 

 

THE IMMIGRATION ACTS

 

 

Heard at Newport	Decision & Reasons Promulgated
On 29 January 2019	On 25 February 2019

 

Before

 

DR H H STOREY

JUDGE OF THE UPPER TRIBUNAL

 

 

Between

 

Yu [J]

(ANONYMITY DIRECTION NOT MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the Appellant: Ms S Latimer, Fountain Solicitors

For the Respondent: Mr D Mills, Home Office Presenting Officer

 

 

DECISION AND REASONS

1. The appellant is a national of China. The basis of her claim for asylum was that she had been a victim of trafficking who had come to the UK aged 6 or 7 and then been enslaved by a couple for some 15-20 years. Shortly after she claimed asylum, her claim to be a victim of trafficking was adjudicated on by the NRM who concluded on 15 June 2018 that she was not a victim of human trafficking or slavery, servitude or forced labour. On 28 June 2018 the respondent decided to refuse her claim for asylum. Her appeal against this decision came before Judge Trevaskis of the First-tier Tribunal (FtT) who, in a decision sent on 9 November 2018, dismissed it, finding that she had not given a credible account and would not be at risk on return.

2. At the outset of the hearing before me, Ms Latimer detailed unsuccessful attempts she and her firm had made to contact the appellant since permission to appeal had been granted. She confirmed, however, that her firm had lodged the application for permission and that she was prepared to represent in relation to this application. As this was an error of law hearing I did not consider there was a need for the appellant to be present in any event.

3. The appellant's grounds were essentially twofold, arguing that:

1) the judge perversely relied on a country guidance case on trafficked women - HC and RC (Trafficked women) China CG [2009] UKAIT 0002 7 to support his assessment that the appellant simply as a lone woman returning to China would not be denied basic services or left to fall into destitution; and

2) the judge erred in failing to engage with the submission that even though not a victim of trafficking the appellant would be trafficked on return on account of her vulnerability.

4. In the grant of permission Judge Shaerf added that it was arguable in the light of ES (s.82 NIAA 2002, Negative NRM) Albania [2018] UKUT 335 (IAC) that the judge had not adequately engaged with the reasonable grounds decision of the Competent Authority.

5. I record my thanks to the representatives for their pertinent submissions. I shall take the last point first.

6. The appellant's written grounds do not raise a challenge to the judge's adverse credibility findings and it is somewhat surprising, therefore, that Judge Shaerf should have identified a point as arguable that was not argued. Ms Latimer did not seek to pursue it at the hearing, but in any event, I find this point lacks merit. The main point addressed in ES is that judges dealing with asylum appellants who have already received an NRM decision should decide whether the question of whether they are victim of trafficking on its own merits and ensure in doing so that they recognise that the standard of proof they apply is different to and lower than the civil standard applied by the NRM. But the judge's assessment accorded with both these points. At paragraphs 45-47 the judge stated:

"45. Although there has been an adverse credibility finding made by the competent authority regarding the appellant's trafficking claim, I am entitled to make my own assessment of the credibility of the appellant in the context of this appeal.

46. I have considered the reasons for the negative credibility findings, which are largely based upon the inability of the appellant to provide more detail of her life, which she claims to have been over 20 years duration, living in the house of her alleged traffickers. I have considered the counselling report, which offers a possible explanation based on disassociation. Unfortunately, the report is no more than a recommendation of further evaluation of the appellant, and therefore does not provide a diagnosis to which evidential weight can be attached.

47. The appellant has added nothing to her earlier accounts which provide any corroborative detail of her earlier accounts. I am therefore considering the same level of detail as was considered by the competent authority and by the police. I find their reasons for rejecting the appellant's claims to be sound, and therefore I reach the same conclusions, namely that the appellant has not shown to the required standard that she has been a victim of trafficking or modern slavery."

7. Even though the appellant's representatives (Ms Latimer) stated at the hearing before the judge that the appellant's appeal was not brought on either asylum or humanitarian protection grounds and only referenced Article 8, ECHR, the judge properly recognised that the appellant's case raised an issue of risk on return and accordingly applied the standard applicable in Article 3 ECHR cases - substantial "grounds for believing" or "real risk" (see paragraph 3).

8. This standard equates to the lower standard of proof in asylum cases: see Bagdonavicius [2005] UKHL38. There is nothing anywhere in the judge's decision to suggest the judge applied the NRM standard of balance of probabilities.

9. Turning to ground (1), I find it to be devoid of arguable merit. Certainly the country guidance of the AIT in HC and RC is confined to the issue of trafficked women, but its head note frames its guidance by reference to the general situation in China for its citizens and for Chinese women - its guidance moves. from the general to the particular. That is well-illustrated by paragraph 3 of the head note which states that "the Chinese state has an obligation to house the homeless and will not allow their citizens to starve. Therefore a returned trafficked woman without family support will not be allowed by the Authorities to fall into a state of destitution". Further, this case drew upon a wide body of background evidence for its conclusions. Accordingly the judge was entitled to rely on it as support for his findings of fact regarding the situation the appellant would face on return as a lone woman.

10. Ground (2) fails for very similar reasons. The judge relied on HC and RC and this case held, inter alia, that "women and girls in China do not in general face a real risk of serious harm from traffickers" (paragraph 2 of head note). Whilst this case went on to accept it might be possible in a given case for a woman to establish she might be at risk from traffickers, on the judge's findings in the instant case the appellant had wholly failed to substantiate her claim.

11. The judge noted at paragraph 50:

"50. According to the appellant, she first remembers being taken in by the Cantonese speaking couple when she was approximately 6 years old, and spending 15 - 20 years in their home, before being told to leave. The credibility of her account has not been accepted by the competent authority or the decision maker in respect of her asylum claim. Given the lack of detail that the appellant has been able to provide in her various interviews or witness statements, and the lack of assistance that she was able to give to the police in their investigation, this leads me to doubt the truth of her claim to have lived in the United Kingdom for at least 20 years. Her first encounter with the authorities took place after she claims to have left the home of her captors, and this encounter does not therefore corroborate her claim to have lived here for over 20 years. Whatever the circumstances of her life in the United Kingdom over that period, I do not find it credible that she is unable to provide any information, beyond that which she has provided, corroborating that amount of time spent in this country, including, on her own account, visits to shops and a dentist."

12. Ms Latimer highlighted the point that on the judge's own findings the appellant was a vulnerable person. That is true to the extent that the judge was satisfied she stood to be treated as a vulnerable witness under the Joint Presidential Guidance Note No 2 of 2010 (see paragraph 42). However, the judge clearly considered that the appellant had not established that her vulnerability was severe enough to cross either the Article2 or 8 thresholds applicable in health cases, noting at paragraph 57 that:

"57. In this case, the appellant has not provided any evidence of medical diagnosis of mental or physical illness. The counselling report refers to the need for assessment as a vulnerable adult and for disassociation, and offers no more than speculation as to the consequences of such an assessment. I am not satisfied on the evidence before me that the appellant has shown sufficiently strong grounds to engage articles 3 and/or 8 in relation to her mental health."

13. Against this background the judge was entitled to consider that the appellant would not face very significant obstacles on return to China (pursuant to Article 8) or, a fortiori, ill-treatment contrary to Article 3.

14. For the above reasons I conclude that the judge did not materially err in law and accordingly his decision to dismiss the appellant's appeal is dismissed.

 

 

Signed Date: 23 February 2019

 

Dr H H Storey

Judge of the Upper Tribunal