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Articles 8 and 4 ECHR

Article 8 ECHR inside or outside the Rules

You must always consider whether your client can make an Article 8-based application under the Immigration Rules. This could be due to their family situation, or length of residence in the UK, but we will not cover these claims here.

For Article 8 private life claims, your trafficked client will usually need to show that they would face ‘very significant obstacles to reintegration‘ within the meaning of para 276ADE(1)(vi) Immigration Rules (private life) if they were returned to their home country (or removed elsewhere).

As explained by the COurt of Appeal in Kamara v Secretary of State for the Home Department [2016] EWCA Civ 813, para 14:


“The idea of ‘integration’ calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual’s private or family life.”

Victims of trafficking who are unable to show they face a real risk of persecution or serious harm, will still be able to argue they meet the serious obstacles to integration test. The case law makes clear that they are different tests. The Article 8 case under para 276ADE(1)(vi) should focus on;

  • your client’s vulnerabilities: which may include mental and physical health problems, educational ability, skills and access to non-exploitative (ie not trafficked) employment, and any other characteristics of vulnerability; and
  • whether they have family or other support available in that country;
  • may face stigma or discrimination for any reason, e.g. as returnees, former victims of trafficking, or for reasons of their health, gender, sexuality, race or religion, etc, or
  • may face a state of upheaval/ violence there. If they left that country at a young age, or it has been through a period of upheaval since they left, you will also be able to point to their lack of experience in being able to navigate their way through the difficulties of re-integrating which will probably take skills that they haven’t picked up in the UK.

Your client will probably have a difficult life in the UK too, so evidence those difficulties and how their support network here is sufficient to help them avoid the serious problems they will face in the other country. Consider how they would fare without support workers, other charitable support they access in the UK, healthcare, financial support, accommodation, or employment.

All of this will be all the more difficult if they have children to look after (in which case the best interests of the children will need to be given sufficient weight).

Having identified the specific issues in your client’s article 8 case, you willl then be able to look for weighty evidence to support your client’s concerns.These issues should be addressed in medico-legal reports, and in country evidence (which may need to be expert counrty evidence), and statements or letters from those that know your client well, and particularly those providing them with support.

Procedurally, you may be able to make any relevant Article 8 arguments for your client as part of another application or claim, if there is provision to do so (eg under the s120 procedure) or, if required, in a standalone Article 8 application or claim. If you wish to make these arguments under legal aid and the client does not have a positive reasonable or conclusive grounds decision, you will have to make an ECF application – see Legal Aid section. If the client has a positive RG or CG then legal aid will pay you to make an argument for leave to remain on any applicable ground.

Article 4 ECHR

There may be an argument or arguments in your client’s case that their removal from the UK would breach their rights under Article 4 ECHR, which prohibits slavery and forced labour.

This will be relevant to an asylum claim, where the person is arguing that they will be at risk of re-trafficking if they are removed from the UK. But it won’t add much weight to such a case,  because it is already established that retrafficking amounts to persecution and a breach of Article 3, ECHR.

But Article 4 has a larger remit than establishing risk on return. It also encompasses the state’s obligations under ECAT, or at least some of them.

Why has there been an Article 4 breach?

For those who have arrived on domestic workers visas, there may be a specific failure by the state to provide them with protection when the visa is issued or on entry. This was considered in detail by the immigration tribunal in the case of  EK (Tanzania) – which we discuss in more detail here.

There may also be breaches by the state in failing to provide protection where the authorities were aware, or ought to have been aware, of circumstances giving rise to a credible suspicion that the individual had been or was at real and immediate risk of being trafficked or exploited. That could happen before the person is referred into the NRM, where eg police or HO officials fail to refer them in  and/or to give them protection in the meantime. Or it could happen if the NRM incorrectly decides they are not a victim of trafficking, and so denies them the duties it owes under ECAT/ Article 4.  Those circumstances were considered recently by the Supreme Court in MS (Pakistan) v SSHD [2020] UKSC 9, which we discuss here.

Article 4 ECHR breaches can also be raised as relevant factors in an Article 8 claim and may add weight to your client’s arguments on proportionality. The Upper Tribunal were in no doubt that a failure to identify by the NRM engages Article 8 in DC (trafficking: protection/human rights appeals) Albania [2019] UKUT 351 (IAC).

Breaches of Article 4 may give rise to an entitlement to compensation from the state. Make sure if you are raising the argument in an immigration context that you refer your client to a compensation lawyer or advisor as soon as possible as there are time limits on bringing compensation claims

There are developing arguments and cases around Article 4 issues, the positive obligations of the state, and remedies for victims of trafficking, not just in an immigration context, so ATLEU is keeping a keen eye on how case law develops in this area.

Helpfully, an increasing number of barristers are getting interest in this topic, so identify barristers that you can work with on these complex cases.

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