AS (Afghanistan) v Secretary of State for the Home Department

A decision by a Competent Authority on trafficking is not itself an immigration decision carrying a statutory appeal. Judicial review remains the route for a direct challenge. That does not prevent an appellant from relying on trafficking evidence in an appeal against a separate decision to remove. In that appeal, the First-tier Tribunal may consider any matter relevant to removal, including whether the appellant is or has been a victim of trafficking. It may assess the issue for itself where the Competent Authority’s conclusion is arguably perverse on the facts found or accepted; a prior judicial review is not required. The Secretary of State must take relevant trafficking matters and her own policy into account when making the removal decision. A conclusive trafficking decision will ordinarily not be re-opened, save in rare cases warranting reconsideration.

AS, an Afghan national, claimed that he had been confined and forced to work in the United Kingdom after being smuggled from Afghanistan. The Competent Authority decided that the circumstances amounted to people smuggling, not trafficking. The First-tier Tribunal dismissed his asylum and removal appeal, treating the trafficking issue as peripheral. The Upper Tribunal held that the First-tier Tribunal had no jurisdiction to review the Competent Authority’s decision and dismissed the appeal. The Court of Appeal considered whether, in an appeal against the removal decision under section 82(2)(g) of the Nationality, Immigration and Asylum Act 2002, the Tribunal could consider trafficking evidence despite the absence of judicial review proceedings.

Lord Justice Longmore, with whom Ryder and Briggs LJJ agreed, allowed the appeal. The matter was remitted to the First-tier Tribunal to consider whether, in light of the trafficking evidence, it should allow AS’s appeal and remit the matter to the Secretary of State.

1. The court accepted the distinction drawn in R (AA Iraq) v SSHD [2012] EWCA Civ 23. A Competent Authority decision on trafficking is not itself an immigration decision carrying a statutory appeal, and a direct challenge lies by judicial review. That conclusion did not determine what evidence could be considered in an appeal against removal.
2. The relevant appealable decision was the decision to remove under section 10 of the Immigration and Asylum Act 1999, rather than the refusal of asylum or the trafficking decision. Under section 82(2)(g) of the Nationality, Immigration and Asylum Act 2002, the First-tier Tribunal could consider any matter relevant to removal, including whether the appellant was or had been a victim of trafficking. The court respectfully endorsed EK (Article 4 ECHR: Anti-Trafficking Convention) Tanzania [2013] UKUT 00313.
3. Where the Competent Authority’s conclusion was arguably perverse on the facts found or accepted, the First-tier Tribunal could consider the trafficking issue for itself. A prior application for judicial review was not a prerequisite. Tribunals should ordinarily be astute not to permit an appellant to re-run a conclusive trafficking decision, save perhaps in rare circumstances, but an arguable decision which was not open to the Authority had to be heard and taken into account.
4. SSHD v Abdi [1996] Imm. A.R. 148 supported the proposition that failure by the Secretary of State to follow her own policy is an error of law through failure to take a relevant consideration into account. That principle applied whether the policy derived from the Trafficking Convention or another source. The court rejected the contrary approach in SHL v SSHD [2013] UKUT 00312, which treated such consideration as an impermissible backdoor challenge.
5. The one-stop warning under section 120 of the Nationality, Immigration and Asylum Act 2002 was, on its face, inconsistent with excluding trafficking evidence relevant to the reasons why removal should not take place.

• Court of Appeal (Civil Division): Allowed the appeal and remitted the matter to the First-tier Tribunal for further consideration.
• Upper Tribunal (Immigration and Asylum Chamber): On 12 April 2012 held that the First-tier Tribunal had no jurisdiction to review the Competent Authority’s trafficking decision and found no error of law.
• First-tier Tribunal: On 8 April 2011 dismissed AS’s appeal against the refusal of asylum and the decision to remove him.