Appeals

We do not detail here all the information you need to run an appeal but focus on what is different about appeals for victims of trafficking.

The most comprehensive and publicly available guide to running immigration appeals is the excellent Best Practice Guide to Asylum and Human Rights Appeals by Mark Henderson, Rowena Moffat and Alison Pickup (2018 edition).

Also useful is the Immigration and Appeals and Remedies Handbook, Symes and Jorro, Bloomsbury Professionals, 2015.

If your client’s protection and/or human rights claim is refused, they will have the right to appeal to the First-tier Tribunal (IAC) unless the claim has been certified by the Home Office as clearly unfounded. Even those accepted as being victims of trafficking might have their asylum appeal certified if it is the Home Office’s view that they have no realistic prospect of succeeding in their appeal.

Currently, ATLEU understands this is regularly happening, for instance, to trafficked survivors from Albania. If the asylum claim of a victim of trafficking has been appropriately prepared, there may well be grounds to seek judicial review of a clearly unfounded certificate. If the preparatory work was poor, a better remedy might be a fresh claim (see further below).

The asylum decision will follow the NRM decision. If your client has a negative decision from the NRM, because their account of being trafficked has not been believed, the asylum refusal will normally cite the same or similar credibility reasons.

You’ll, therefore, need to think seriously about challenging the NRM decision, by judicial review and/or reconsideration, if possible before the asylum decision is made. If the asylum claim is refused whilst the challenge to the NRM decision is pending, that will be grounds to seek an adjournment of the appeal while the trafficking claim is resolved. If the NRM decision is overturned, the Home Office should agree to reconsider the asylum decision.

Whether to seek an adjournment of the appeal pending the conclusion of the NRM claim is a strategic decision you will need to make with your client. In part it will depend on the strength and progress of the JR. If the appeal goes ahead while the NRM JR is pending, you may want to rely on your counsel’s JR grounds to help win your asylum appeal. In these circumstances, you will argue anyway that the Tribunal is not bound by the conclusions of the NRM as the CG decision is made on materially higher standard of proof than the asylum claim.

If the client has been accepted as a victim of trafficking by the competent authority, the exploitation part of their history will hopefully also be accepted in their protection claim. However, it is common for victims to still face refusals in relation to risk on return, sufficiency of protection, and internal relocation.

If there is a positive conclusive grounds decision, you can take the opportunity of the appeal to request the consideration minute from the competent authority as it may include comments on matters which can assist in the appeal. If the Presenting Officers’ Unit will not disclose it on request, an application can be made directly to the First-Tier Tribunal for specific directions that this document be provided.

In the reply notice that you will need to complete when you receive your notice of hearing from the Tribunal there are some important points to cover:

  • Language (including gender and dialect of the interpreter).
  • Disability. Does the client need any special adjustments?
  • Vulnerability. A victim of modern slavery may be particularly vulnerable, and this should be flagged up to the tribunal early with any comments about how the case should be prepared or run at hearing to accommodate this, e.g. having breaks, requiring medical evidence, etc.
  • In camera. Ask for the hearing to be heard in camera if necessary which only allow the parties in the appeal into the Tribunal hearing room (e.g. if the client is particularly vulnerable or in fear of traffickers in the UK).
  • Gender of court. The client may prefer to have an all-female or male court. You will need to explain briefly why this is necessary with reference to their case.
  • Witnesses. With name, address and Home Office reference number if applicable.
  • Time estimates for the hearing, although they are usually three hours with no witnesses apart from the appellant.
  • Geographical location. Do you need to request a different hearing centre than the closest one to the client’s home?
  • Adjournment.
  • Consideration minutes. Ask for a specific disclosure for decisions and consideration minutes for a victim of modern slavery if you have not been provided with them already.
  • Litigation friends. These can be directed by the tribunal if the client does not have the capacity to deal with proceedings.
  • Anonymity – as a matter of course, advisors should be requesting anonymity for their clients due to the dangers that them being identified could cause them regarding their trafficking situation

Can the tribunal make a decision on identification as a victim?

Yes.

Following a long saga of ups and downs regarding whether the Tribunal can go behind an NRM decision, this has (hopefully) finally reached a conclusion with the Upper Tribunal case of  DC (trafficking: protection/human rights appeals) Albania [2019] UKUT 00351 (IAC)

The approach to be taken in these cases by the Tribunal was summed up at paragraphs 34 to 36 of this judgment:

‘34. …in an appeal against the refusal of a protection claim under section 82(1)(a) of the 2002 Act, the assessment of risk on return, whether in terms of the Refugee Convention or Article 3 of the ECHR, is for the tribunal to determine. To the extent that the resolution of this ‘protection appeal ‘ involves making findings of fact as to whether the appellant has been the victim of trafficking, the tribunal must assess all the evidence, applying the lower standard of proof. The fact that the CA may have reached a negative ‘reasonable grounds ‘ or ‘conclusive grounds ‘ decision will be part of the evidence that the tribunal will have to assess, giving it such weight as is due (and, of course, bearing in mind that the standard of proof applied in a ‘reasonable grounds ‘ decision was the relatively low one described in paragraph 22 above, whereas in a ‘conclusive grounds ‘ decision, it was the balance of probabilities).

35. If the tribunal considers that, on the evidence before the CA, the latter could not rationally have reached the conclusion it did, then no weight will be afforded to the CA’s conclusions. But, even if the CA’s negative decision was impeccable, it will not thereby be determinative of the protection appeal. Not only is it perfectly possible for the tribunal to conclude that it is reasonably likely the appellant was trafficked, even though the CA has found, on the balance of probabilities in its ‘conclusive grounds ‘ decision, that the appellant was not; the tribunal may well have before it evidence that was not available to the CA.

36. Where the CA has made a positive ‘conclusive grounds ‘ decision, this will point strongly in the appellant’s favour in the protection appeal, given the higher standard of proof applied by the CA in coming to that decision. But, again, it will not necessarily be determinative. The evidence before the tribunal may, for example, show that the appellant has lied because it has subsequently emerged he was fingerprinted in Greece at a time when, according to the appellant’s account, he was being trafficked in Afghanistan. ‘

This point was conceded for the Secretary of State prior to the Supreme Court for MS (Pakistan).

Essentially, the Tribunal can now assess whether a reasonable or conclusive ground decision made by the NRM is rational and reasonable and if it is not, they can go beyond this decision when determining the appeal as long as it is explained why. It is important to note that the Tribunal can also make a further assessment of a positive RG or CG decision especially when new evidence has come to light.

Also note, that even if the Tribunal makes a finding that your client is a victim of trafficking, this does not automatically change the negative NRM decision into a positive one. That decision remains in place unless the SCA agrees to reconsider.

Getting ready for the appeal hearing

Choosing an advocate

If you are instructing a barrister in a new geographical area and are unfamiliar with who is experienced, it is a good idea to ask chambers prior to the hearing if they have someone available to cover the hearing who is of the right gender and what their experience of modern slavery cases is. If there is no one appropriate available, you can make an application for a change of venue on this basis (with evidence of your enquiries).

Conferences

It can be useful to arrange conferences between the client and their advocate for the appeal to reassure the client. However, the cost of your time and the advocate’s will not be covered unless the case becomes as escape fee case so make sure the advocate is aware of this before booking in the meeting.

As we have mentioned before, most trafficking cases should ‘go escape’ if the correct work is done on them. We believe it is essential that a conference with counsel and the instructing solicitor takes place prior to the appeal hearing. This provides an opportunity for all minds to be focused on the upcoming hearing and for discussions to take place in good time before it, so that all of the relevant and useful evidence can be obtained. It also assists vulnerable clients to feel more comfortable on the day of the hearing, having already developed some rapport with their representative.

Expert evidence

Expert evidence can be vital in a case involving victims of modern slavery. Please see our Expert Evidence section for more information on this topic.

The need to obtain expert evidence is often a reason for adjournment requests.

Legal aid can cover the travel expenses for a client to attend their appeal hearing even if they are not on asylum support or an unaccompanied asylum seeking child supported by the local authority. This is because they will be a witness in the appeal. The cost of their travel and any other witnesses (as well as counsel’s travel costs) can be built into an application to extend funds.

You can also request funding for an interpreter to attend the appeal hearing and conferences with counsel, also if you think it merited, to attend throughout the appeal hearing (although you will need to justify why this is needed, e.g. particular vulnerability of client who may need reassurance from a trusted interpreter to ensure that translation is accurate if they do not feel confident to flag any inaccuracies to counsel, problems with interpreting before at the Home Office interview due to the rare language).

Your time on the appeal will be added to the time you have spent on the initial stage of the case under legal help funding to work out if the entire case (legal help and controlled legal representation stages) will meet the escape fee case threshold.

You can claim for photocopying of bundles and papers for experts and counsel. Please see our Legal Aid section for more information about this.

Bundles

Some links to useful staples and sources are below:

Country evidence sources

  • Amnesty International
  • Electronic Immigration Network
  • European Asylum Support Office Country of Origin reports
  • European Country of Origin Information Network
  • RefWorld
  • Human Rights Watch
  • UN Refugee Agency country information
  • US State Department Trafficking in Persons reports
  • US State Department Human Rights reports
  • UKVI Country policy and information notes
  • World Health Organisation Mental Health Atlas

Law, guidance and policy documents that can be included in a bundle

  • Council of Europe Convention on Action against Trafficking in Human Beings 2005
  • Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA
  • IOM, The Causes and Consequences of Re-trafficking: Evidence from the IOM Human Trafficking Database 2010
  • UNHCR Guidelines on International Protection: ‘Membership of a particular social group ‘ within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees 07.05.02
  • UNHCR Guidelines on International Protection: ‘Internal Flight or Relocation Alternative ‘ within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees 23.07.03
  • UNHCR, Guidelines on International Protection: The application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees to victims of trafficking and persons at risk of being trafficked 07.04.06
  • Joint Presidential Guidance Note No 2 of 2010: Child, vulnerable adult and sensitive appellant guidance
  • UNODC, Guidance Note on ‘abuse of a position of vulnerability’ as a means of trafficking in persons in Article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United
    Nations Convention against Transnational Organized Crime 2012
  • SSHD, Victims of modern slavery – Competent Authority Guidance Version 8.0 02.09.19.

Key cases that can be included in a bundle

  • AZ (Trafficked women) Thailand CG [2010] UKUT 118 (IAC)
  • EK (Article 4 ECHR: Anti-Trafficking Convention) Tanzania [2013] UKUT 00313 (IAC)
  • AS (Afghanistan) v SSHD [2013] EWCA Civ 1469
  • R (on the application of) Minh v SSHD [2015] EWHC 1725 (Admin) (18 June 2015)
  • TD and AD (Trafficked women) CG [2016] UKUT 00092 (IAC)
  • MS (Trafficking – Tribunal’s Powers – Art. 4 ECHR) Pakistan [2016] UKUT 00226 (IAC)
  • HD (Trafficked women) Nigeria CG [2016] UKUT 00454 (IAC).

Other case law sources

  • European Court of Human Rights
  • Free Movement
  • Upper Tribunal case law (First- Tier Tribunal decisions are not publicly available)
  • British and Irish Legal Information Institute (Bailii).

Procedure rules

Vulnerable witnesses

  • AM (Afghanistan) v SSHD [2017] EWCA Civ 1123
  • Chapter 5 of the Equal Treatment Bench Book, extracts (pages 5-15 to 5-18)
  • Presidential Practice Direction 10 February 2010 updated 13 November 2014
  • Joint Presidential Guidance Note No 2 of 2010: Child, vulnerable adult and sensitive appellant guidance.

Home Office policy

UKVI guidance on appeals
www.gov.uk/government/collections/appeals-modernised-guidance
www.gov.uk/government/collections/appeals-asylum-instructions

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