- BY Colin Yeo
Guidance on trafficking cases in absence of a Conclusive Grounds decision
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Can’t for the life of me see why this has been reported but I lost the will to live before reaching the end. Maybe you’ll have better luck than me.
In cases in which there is no “Conclusive Grounds” decision:
(i) If a person (“P”) claims that the fact of being trafficked in the past or a victim of modern slavery gives rise to a real risk of persecution in the home country and/or being re-trafficked or subjected to modern slavery in the home country and/or that it has had such an impact upon P that removal would be in breach of protected human rights, it will be for P to establish the relevant facts to the appropriate (lower) standard of proof and the judge should made findings of fact on such evidence.
(ii) If P does not advance any such claim in the statutory appeal but adduces evidence of being trafficked or subjected to modern slavery in the past, it will be a question of fact in each case (the burden being on P to the lower standard of proof) whether the Secretary of State’s duty to provide reparation, renders P’s removal in breach of the protected human rights.
The case is AUJ (Trafficking – no conclusive grounds decision) [2018] UKUT 200 (IAC).
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One Response
I think UTJ Gill’s stab at applying MS (Pakistan) (which she refers to throughout as MS (Afghanistan)) goes severely wrong at para 62(ii) of the determination. She states:
(ii) In cases in which the Competent Authority has reached a negative ” Conclusive Grounds decision” but the appellant continues to rely (in his statutory appeal) upon evidence that he has been a victim of trafficking or modern slavery, the judge should decide, at the start of the hearing and before oral evidence is given, whether the decision of the Competent Authority was perverse or irrational or not reasonably open to it. At this stage, evidence subsequent to the decision of the Competent Authority must not be taken into account. If (and only if) the judge concludes that the Competent Authority’s decision was perverse or irrational or one that was not reasonably open to it, that the judge can then re-determine the relevant facts and take account of subsequent evidence.
That must be wrong. There is no threshold of perversity which must be reached before the Tribunal considers new evidence. That is made clear by s85(4) of the 2002 Act.