EK v The Secretary of State for the Home Department

Trafficking for exploitation, including forced labour, falls within Article 4 of the European Convention. The state must provide practical and effective protection through its legislative and administrative framework. This protection applies equally where a domestic worker entered voluntarily but was subsequently compelled to undertake forced labour.

Once conclusive grounds establish that a person is a trafficking victim, the assistance duties under the Council of Europe Convention on Action against Trafficking in Human Beings are engaged. A victim’s personal situation for residence-permit purposes includes medical needs. An immigration decision is not in accordance with the law if it fails to consider material Article 4 breaches and the duties under Articles 12, 14 and 16 of that Convention.

The appellant, a Tanzanian national, appealed against a removal decision under section 10 of the Immigration and Asylum Act 1999. The First-tier Tribunal dismissed her appeal, although it found that she had been trafficked into domestic servitude in the United Kingdom and later trafficked internally.

An earlier Upper Tribunal error-of-law decision preserved the First-tier Tribunal’s conclusions on asylum, Articles 3 and 8, but required the Article 4 and anti-trafficking issues to be re-made. The appellant had serious and permanent physical and mental health consequences arising from her exploitation. The central questions were whether the respondent had breached protective duties under Article 4 and what duties were owed under the Council of Europe Convention on Action against Trafficking in Human Beings after she was recognised as a trafficking victim.

1. Appeal allowed. The refusal and removal decision was not in accordance with the law because it omitted legally material considerations arising from Article 4 and the Council of Europe Convention on Action against Trafficking in Human Beings.

2. Following Rantsev v Cyprus and Russia [2010] ECHR 22, trafficking as defined in Article 3(a) of the Palermo Protocol falls within Article 4. Article 4 requires a state to maintain a legislative and administrative framework providing practical and effective protection for victims and potential victims. There is no relevant distinction between a domestic worker trafficked for forced labour and one who entered voluntarily but was then subjected to forced labour.

3. The Immigration Directorate Instructions in force when the appellant entered the United Kingdom were protective measures of the kind required by Article 4. The failure to give her the prescribed information and leaflet, and to secure the required employer undertaking, breached both the policy and the Article 4 protective obligation. The information would have enabled her to seek help, retain her passport and obtain medical care. There was a sufficient causal link between that breach and the harm she suffered.

4. The duty to assist under the Anti-Trafficking Convention was engaged, at the latest, when conclusive grounds established that the appellant was a victim. Article 12 required measures for physical, psychological and social recovery. Article 14 required consideration of a renewable residence permit where her stay was necessary because of her personal situation, which included her medical needs. Article 16 required return with due regard to her rights, safety and dignity.

5. The appellant’s serious health needs were linked to the failure of protection. Removing her to a country lacking the specialised treatment she required would be unreasonable in light of her personal situation and incompatible with return with due regard to dignity. The Tribunal directed the respondent under section 87 of the Nationality, Immigration and Asylum Act 2002 to grant a period of leave, with its duration to be determined in light of the decision and any further representations made within 21 days.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal and re-made the decision on Article 4 and anti-trafficking issues. It directed the respondent to grant a period of leave under section 87 of the Nationality, Immigration and Asylum Act 2002.

• Earlier Upper Tribunal error-of-law decision: Found errors concerning Article 4 and the anti-trafficking convention, while preserving the First-tier Tribunal’s conclusions on asylum, Articles 3 and 8, risk on return, protection and relocation.

• First-tier Tribunal: Dismissed the appellant’s appeal against the removal decision in all respects. No citation is stated in the judgment.