Appeals

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 (2020 edition). We highly recommend it.

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

We do not set out in this section to provide you with all you need to know to run an asylum or human rights appeal, but focus on what is different about preparing appeals for victims of trafficking.

Certification

If your client’s protection and/or human rights claim is refused by the Home Office, 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, but this is less likely to happen where the asylum claim has been prepared properly. And in a well prepared and evidenced case,  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).

Negative NRM decisions and appeals

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 any application for reconsideration or judicial review that has been made. Generally speaking, it is better to go into an appeal with a positive CG decision to rely on than a negative one.

If the client has been accepted as a victim of trafficking by the competent authority, the exploitation part of their history will usually be accepted in the decision on 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, avoiding certain lines of questionning, 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 and upset that being identified publically could cause

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

Yes.

Although the usual remedy for bringing a legal challenge to a negative NRM decision is through the process of judicial review, the question of whether a person has been trafficked or not will almost certainly be relevant to their asylum/ human rights appeal.

There has been some confusion in the courts as to whether a Tribunal judge can disagree with a decision made by the NRM, and make their own decision on the facts and evidence before them as to whether the person has been trafficked or not.  This has now been finally settled with the UK Supreme Court’s judgement in MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9 (18 March 2020). On this issue, the Court decided:

11.             The Secretary of State now concedes that “when determining an appeal that removal would breach rights protected by the ECHR, the tribunal is required to determine the relevant factual issues for itself on the basis of the evidence before it, albeit giving proper consideration and weight to any previous decision of the defendant authority” (para 65 of the printed case). Hence it is now common ground that the tribunal is in no way bound by the decision reached under the NRM, nor does it have to look for public law reasons why that decision was flawed. This is an important matter. As the AIRE Centre and ECPAT UK point out, had the tribunal been bound by such decisions, it could have had a profoundly chilling effect upon the willingness of victims to engage with the NRM mechanism for fear that it would prejudice their prospects of a successful immigration appeal’.

For more on MS (Pakistan) see our note here.

Note though 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

You should instruct an advocate who has experience of representing victims of trafficking, and understands the complex facts and law that will be in play. There will be many barristers who consider themselves to be experienced in immigration appeals work who have little or no useful experience of these issues. They may be unable to understand the relevance of the trafficking facts to the human rights and protection law, and miss vital points when advocating on behalf of your client.  Check their profile on their chamber’s website, speak to their clerks about their experience, see if they are named in any published judgements, and ask around to identify who best to instruct. If there is no one appropriate available locally, 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 a conference between the client and their advocate (and you) a few days before the appeal hearing. This will allow counsel to meet you and your client, resolve any outstanding issues in respect of preparation and evidence,  and guage how your client will respond to questions at the hearing.  It will also be reassuring for your very vulnerable and now very frightened client to have met their barrister before the day of the hearing. The cost of your time and the advocate’s will be covered by legal aid if the case reaches the escape fees threshold.

As we have mentioned before, most trafficking cases should ‘go escape’ if they are prepared well. 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 and adjournments

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.

Appeals hearings can be listed very quickly after lodging the Notice of Appeal. If you are unable to commission expert evidence in time for the hearing to proceed on the listed date, apply for an adjournment. When making the adjournment request, you will need to explain the particular relevance of the expert evidence to the issues in the appeal. In trafficking cases, you will almost always need a medico-legal report prepared by a psychologist with expertise in the assessment and treatment of trauma and related mental illnesses. It is not unusual to have to wait a few weeks for them to find an available slot to see your client, and a few further weeks for them to draft their report. If this is explained to the Tribunal, together with the steps you have already taken to find and commision an appropriate expert and secure the funding, an adjournment should be granted.

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 available for disbursements where necessary.

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).

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

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. From ATLEU’s perspective, it is hard to imagine preparing an appeal for one of our clients that is not claimed and paid at escape fees hourly rates.

Bundles

We list below some useful sources for country information, for consideration of the legal issues that might be relevant to trafficking asylum and human rights appeals, some relevant case law, guidance on vulnerable witnesses and Home Office appeals policies. Discuss with your counsel what information they want you to put in the bundle, usually that which they will need to refer to in their skeleton argument:

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

  • AZ (Trafficked women) Thailand CG [2010] UKUT 118 (IAC)
  • EK (Article 4 ECHR: Anti-Trafficking Convention) Tanzania [2013] UKUT 00313 (IAC)
  • 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)
  • MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9

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

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