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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-004926
	First-tier Tribunal No: PA/66079/2023 LP/06823/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

27 ^TH February 2025

 

Before

 

UPPER TRIBUNAL JUDGE LANDES

 

Between

 

M F

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr Bellara (Counsel instructed by MBM Solicitors)

For the Respondent: Mr Terrell (Senior Home Office Presenting Officer)

 

Heard at Field House on 3 January 2025

 

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

 

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court .

DECISION AND REASONS

1.              The appellant, a national of the Philippines, appeals (with limited permission granted by the First-Tier Tribunal) the decision of the First-Tier Tribunal promulgated on 13 September 2024 dismissing her appeal against the respondent's decision of 2 December 2023 to refuse her protection and human rights claims made on 13 May 2022.

2.              I have continued the anonymity order made in the First-Tier Tribunal despite the public interest in open justice as the appellant is making a protection claim and there is a reasonable grounds decision finding her to be a victim of trafficking.

Background

3.              The appellant came to the UK in October 2010 on a domestic worker visa. The respondent accepted that she had run away from her employer due to underpayment and poor working conditions and by the date of the hearing before the judge there was a positive reasonable grounds decision that she had been a victim of trafficking, and a conclusive grounds decision was awaited.

4.              The appellant contended that she would be at risk from her ex-employer. She said in screening interview that she had problems with her husband who was in prison for drug offences and that her employer was looking for her because the employer had paid her expenses to come to the UK, the appellant owed her employer a lot and then she had run away. She owed her employer a lot and if she returned she did not know what would happen. In asylum interview she said that she feared her employer because he was threatening that he would tell the police because she had left them, and that she feared she might go to jail and her employer would do something bad to her because she had left them. The respondent did not accept that she was of adverse interest to her former employer saying that she had not provided evidence that she was of adverse interest or that any threats had been made to her, she had provided no evidence of the individual's power and in any event that there would be sufficiency of protection from persecution, alternatively she could internally relocate within the Philippines.

5.              The judge of the First-Tier Tribunal ("the judge") accepted the appellant's evidence in terms of the background of having been a victim of trafficking [18]. However, there were three reasons why he found that she did not have a genuine or well-founded fear of persecution on return. Firstly, that neither she nor her family had heard from the former employer since April 2011 [18] and in any event it was unclear as to what the alleged abuse and threats comprised of. The appellant said her ex-employer had threatened legal action, but the judge found this would not amount to persecution; the claim suggested threats of serious harm but that was not how the appellant put her case at the hearing [19]. Secondly the judge considered that the appellant would have sought asylum sooner if she held a genuine belief in the risk of persecution [20]. In fact, the appellant had chosen to remain in the UK to work [21]. Thirdly, the judge concluded that assuming there was a risk the appellant could simply have paid back the money which was £1400 [22]. The judge considered the risk of re-trafficking and discounted it [23]. Whilst the judge accepted that the appellant's husband was drug dependent and had committed criminal offences, he found there was limited evidence that she had been subject to domestic abuse [24]. Even if there was a risk on return from the appellant's former employer or from her husband, the judge found that there would be sufficiency of protection from the state [26], [27].

6.              When considering the claim under Article 8 ECHR, the judge found that it might be challenging for the appellant to return to the Philippines after such a long absence, but she would be far from an outsider. She retained a network of family and other contacts and was familiar with the culture and the language. Her sister and other siblings and her adult children would provide her with financial, emotional and practical assistance; she would be able to live with her sister in the short term and there was nothing which came close to very significant obstacles to reintegration [33]. Little weight should be placed on the appellant's private life in the UK as it was developed when she was in the UK with either unlawful or precarious status. She had worked illegally and shown little regard for immigration rules [38] and her removal would be proportionate.

Grounds and submissions at the hearing

7.              Permission was only granted on ground 2 and the appellant did not seek to renew ground 1.

8.              Counsel did not settle the grounds. They are diffuse and not always easy to follow. Ground 2 appears to split into seven parts:

(i)              The judge found that there was no evidence that the appellant was being sought by the non-state agent, but this contradicted [14]. The judge had accepted the appellant's oral evidence but that was that her family members were being harassed;

(ii)            The judge had speculated about the debt arising from re-trafficking and had said that the debt could be repaid without considering what harm would come to the appellant;

(iii)          The judge had put section 8 of the 2004 Act at the forefront of his reasoning without properly considering that the appellant was a victim of trafficking or engaging with her explanation. He had not undertaken a global assessment of credibility;

(iv)          The judge was wrong about the appellant choosing to remain in the UK to work, but the conclusion she could avoid persecution by working in the Philippines was inconsistent with his earlier findings; she would be driven to seek work abroad as she was supporting her family including her children;

(v)            The judge had not had regard to rule 339K of the immigration rules; the judge did not turn his mind to whether there were good reasons for such harm not being repeated;

(vi)          The judge did not consider all of the CPIN in particular paragraph 2.6.3. The judge had not considered that the appellant had previously been the victim of trafficking and was inherently likely to become so again given her vulnerability and the pressures on her;

(vii)        The judge's conclusions at [32] and [33] about very serious obstacles to integration and about Article 8 ECHR were not properly reasoned. There was no proper consideration of how the appellant's sister could support her in the short term or how she would be able to return to visit friends in the UK.

9.              Mr Bellara said that he would not be pursuing a challenge to the judge's Article 8 assessment or to the findings that the appellant's credibility was damaged under the provisions of section 8 of the 2004 Act.

10.          Mr Bellara said that the judge may have misunderstood the evidence given the contradiction at [14] and [16] (the first point of the grounds). He said that it was not fair to say that the only harassment the appellant faced was back 13 odd years ago and that the evidence very strongly supported the appellant's claim that the threat was ongoing.

11.          He said the judge had appeared to place weight on the debt being capable of repayment; but there had been no suggestion from anyone that would address the risk of harm or possible re-trafficking (second point in the grounds).

12.          Mr Bellara said his strongest point was that the judge had not dealt properly with the risk of re-trafficking. He referred me to AZ (Trafficked women) Thailand CG [2010] UKUT 118 and submitted the case was authority for the proposition that when someone had been trafficked there was always the risk of re-trafficking. It was simply inadequate to say that it was so long ago that the appellant could not be vulnerable (points 4, 5 and 6). That had triggered the grant of permission.

13.          Mr Terrell responded that the judge was saying that the appellant had clarified in evidence that the last time she was threatened was in 2011 [16]. There would have been no reason for the judge to doubt what was said at the hearing - the judge had obviously read the letters of support from family members [17] and explained why he placed little weight on them where they did not support the appellant's testimony. The judge had not accepted everything the appellant said; far from it, he accepted only the background.

14.          So far as re-trafficking was concerned, the judge's conclusions on sufficiency of protection at [26] and [27] were not challenged and the judge had looked specifically at sufficiency of protection in terms of re-trafficking. The quote from the CPIN related to internal relocation. There was nothing in the skeleton argument about the general risk of trafficking. [150] of AZ referred to "breaking in" but was in the context of that particular guidance and how trafficking gangs operated. It had not been put before the judge that the appellant was inherently vulnerable to the risk of re-trafficking. The paying back of the debt [22] was simply an alternative finding; the judge was exploring all the potential avenues of risk from the evidence.

15.          Mr Bellara replied that it was simply incorrect to say that the last threat was back in 2011. The appellant's evidence remained consistent in terms of threats continuing and the witness statement talked in the present tense of constantly harassing the family and verbally abusing them. The daughter had said in her letter that she had faced recent harassment. Regrettably, the judge had not properly considered the documentary and oral evidence. Mr Bellara submitted he had focussed on his submissions before the judge on the issue of re-trafficking. Indeed if anything it became the central focus of the appeal and the alternative finding at [26] fell short because the judge did not consider all the relevant parts of the CPIN. The judge had substituted his own view about the debt being repaid which had never been suggested by the respondent. Repaying the debt would not avoid the risk of serious harm or re-trafficking. The judge had approached a serious claim simplistically and not given adequate reasons. There were material errors of law.

Analysis and conclusions

16.          The context of the claim and the issues the judge had to decide are relevant. I have set out above the way the appellant put her claim in screening and asylum interview. The skeleton argument summarises the appellant's case in this way (the emboldening is mine):

"In short it is the Appellant's case that that she was bought to the UK by a funding employer to work as a carer, however she was not paid correctly and suffered poor working conditions. As a result, she ran away and not repay the debt she owed to her employer. It is the Appellant's case she will face a difficult relationship with her husband as he has been accused of drug related crimes on 20th February 2023 and since he has been released. It is the Appellant's case if she is returned to the Philippines, she fears she will be criminalised by her ex-employer for running away and not paying back the owed debts."

17.          The claimed risk of harm in the skeleton argument was making the appellant into a criminal. The witness statement (as summarised by the judge, see below) referred to the employer harassing and abusing family and threatening legal action (again the emboldening is mine).

18.          The judge is, at [14] clearly describing the contents of the appellant's witness statement. That that is so can be seen from the middle of [13] where the judge begins "in her witness statement, the appellant explained..." and that at [15] the judge writes "the appellant's witness statement also mentions".

19.          The judge understood from the appellant's evidence at the hearing that the last time there had been any threats was April 2011. Mr Bellara said that the evidence had been consistent, and I appreciate he was the representative at the hearing, but there is no note of evidence and there has been no request for a transcript to be obtained to see what was actually said. I make it clear that I do not doubt Mr Bellara is assisting me by giving his recollection of the hearing, but it is a common experience that parts of evidence can be inadvertently missed or misheard or recollection at a later date of what was said may be inaccurate.

20.          The evidence did not, contrary to what is submitted, strongly support the conclusion that the threats were ongoing. There was evidence of threats in April 2011. The evidence from the family in the Philippines of threats beyond that was vague as to date and not specific. The judge explained why he gave little weight to the family letters and as Mr Terrell points out, contrary to the first part of the grounds, the judge did not accept all the appellant's evidence.

21.          What is clear is that the judge was unclear as to what the abuse and threats were said to comprise other than legal action to recover the debt [19] which he found did not amount to persecution. Given the background in the appellant's interviews, witness statement and skeleton argument, it was entirely open to the judge to come to this conclusion and to find that the appellant herself had not put her case at the hearing that there had been threats of serious harm.

22.          Whilst the judge's consideration of the appellant paying back the debt was curious, the judge was not saying that the appellant could pay back the debt and that would put an end to the persecution; the judge was explaining that he considered that if there had been a genuine fear of persecution she would have done that. He considered that the fact that the appellant did not try to repay the debt was evidence that she did not have a genuine fear of persecution.

23.          In any event, the judge referred to the 2022 CPIN relating to sufficiency of protection and the CPIN relating to domestic violence and found, with reference to the CPINs, that there would be sufficiency of protection for the appellant from her former employer and from her husband [26] - [28]. The grounds (part 6) suggest that the judge did not properly consider the other paragraphs of the CPIN but that appears to be in the context of re-trafficking (as reference is made to [23]) and in any event the only paragraph relied on relates to internal relocation. Mr Bellara did not refer to any other paragraphs of the CPIN. I consider that the judge's finding about sufficiency of protection in the context of risk from the appellant's former employer is one he was perfectly entitled to reach and sufficiently reasoned. Accordingly, even if I am wrong and the judge did err in his conclusions on whether there were ongoing threats of harm from the former employer, the judge made no material error of law in his conclusion that the appellant did not qualify for international protection on that basis.

24.          I accept that Mr Bellara referred in his submissions to re-trafficking at the hearing before the judge.

25.          The judge did deal only briefly at [23] with the risk of re-trafficking. The whole decision must be considered however when looking at the context in which the judge considered such risk. There is nothing to suggest he was not aware of rule 339K of the immigration rules; he expressly directed himself that past persecution was an indication of future risk [10]. He considered the CPIN for background material about the risk of re-trafficking and it was in the context of the CPIN concluding "the onus is on the person to demonstrate that their profile and circumstances are such that on return they would be vulnerable to abuse or re-trafficking" that the judge said the appellant had failed to demonstrate vulnerability.

26.          I understand the point taken from AZ about former victims of trafficking being even more vulnerable to re-trafficking, but that was in the context of victims who have "already been through the business and know how to be compliant" in the case of an appellant from Thailand trafficked for prostitution. It is not at all obvious that the appellant is in the same position.

27.          The judge's conclusion that the appellant had failed to demonstrate vulnerability must be seen against the background of his findings that the appellant retained a network of family and other contacts in the Philippines and that her sister and other siblings and her (now) adult children would provide her with assistance when reintegrating, that he was not satisfied she would be unable to find employment, and that she would be able to live with her sister in the short term [33]. I appreciate that the grounds challenge the judge's findings about very significant obstacles to reintegration and the sister's ability to support the appellant in the short-term, but the Article 8 part of the grounds was not advanced by Mr Bellara and the judge did not find that the appellant's sister alone would support her in the short term, he found that she would be able to live with her sister in the short term. I consider that the judge's decision was sufficiently reasoned in this aspect; it was apparent that the family were supportive of the appellant and from the letters of the appellant's adult children that they lived with the appellant's sister and that the appellant's sister had supported them by taking care of their needs for a while as the appellant had not always been able to work in the UK and send money back to her family. There is no inconsistency in the judge finding that the appellant wanted to remain in the UK to work but she had not demonstrated a risk of re-trafficking. The situation is clearly different from when the appellant was originally trafficked a long time ago.

28.          Taking the decision as a whole into account, the judge's conclusions, on re-trafficking, although brief, are adequate. In any event, I consider that any error would not be material. The judge considered the human trafficking CPIN at [23] and [27]. At [27] he considered that the Philippines were in general able and willing to offer effective protection against trafficking. It is right that the judge did not consider all the relevant parts of the CPIN but there is nothing to indicate that the material in the CPIN does not support its overall conclusions; as referred to above the paragraph referred to from the CPIN was about internal relocation.

Notice of Decision

The judge's decision did not contain a material error of law and stands. The appellant's appeal fails and is dismissed.

 

A-R Landes

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

26 February 2025