In ES (s82 NIA 2002, Negative NRM) [2018] UKUT 335 (IAC) a victim of trafficking from Albania had been assessed by the Home Office not to be a victim of trafficking under the National Referral Mechanism. Previous cases have held that the tribunal is effectively fixed with the NRM trafficking decision. Not so, finds Judge Nadine Finch.

Not only does Judge Finch distinguish earlier Court of Appeal authority but she also disagrees with the earlier determination of Judge Gill in AUJ (Trafficking – no conclusive grounds decision) Bangladesh [2018] UKUT 200 (IAC), commenting that the relevant finding was obiter and not part of the official headnote.

The official headnote to ES:

1. Following the amendment to s 82 of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’), effective from 20 October 2014, a previous decision made by the Competent Authority within the National Referral Mechanism (made on the balance of probabilities) is not of primary relevance to the determination of an asylum appeal, despite the decisions of the Court of Appeal in AS (Afghanistan) v SSHD [2013] EWCA Civ 1469 and SSHD v MS (Pakistan) [2018] EWCA Civ 594.
2. The correct approach to determining whether a person claiming to be a victim of trafficking is entitled to asylum is to consider all the evidence in the round as at the date of hearing, applying the lower standard of proof.
3. Since 20 October 2014, there is also no right of appeal on the basis that a decision is not in accordance with the law and the grounds of appeal are limited to those set out in the amended s 82 of the 2002 Act.

Also some interesting discussion in the determination of assessing vulnerability of a witness and then how to deal with that witness’s evidence. Good to see a realistic and humane approach being adopted by the Presenting Officer.