Nhan Thi Nguyen v The Secretary of State for the Home Department

A state party’s duties under the Council of Europe Convention on Action against Trafficking in Human Beings may extend to a person who was trafficked historically into another country and later travelled independently to the United Kingdom. Article 10(2) is not confined to victims trafficked into the state exercising the duty.

That duty does not make a victim of trafficking unreturnable to their country of origin. Return remains lawful where the person has not shown a real risk of persecution or ill-treatment, taking account of vulnerability, country conditions and the protection available. In an Article 8 assessment, children’s best interests are a primary consideration, but may be outweighed by the public interest in effective immigration control.

Nhan Thi Nguyen, a Vietnamese national and mother of three young children born in the United Kingdom, appealed against the refusal of her protection and human-rights claims. A First-tier Tribunal had accepted that she had been trafficked from Vietnam to Hungary, but rejected her claim that she would face persecution or an Article 8 breach on return to Vietnam.

The Court of Appeal remitted the matter after an earlier Upper Tribunal hearing for reconsideration of internal relocation and the children’s circumstances under section 55. The Upper Tribunal reconvened to decide whether the United Kingdom owed duties under the Council of Europe Convention on Action against Trafficking in Human Beings to a person historically trafficked into Hungary who later travelled to the United Kingdom without being trafficked here.

1. Appeal dismissed on all grounds. The appellant had not established a real risk of persecution, Article 3 ill-treatment, or a disproportionate Article 8 interference if returned to Vietnam.

2. The Tribunal rejected the appellant’s later account that she had been trafficked into, and exploited in, the United Kingdom. The discrepancy from her earlier account was clear and significant. The Secretary of State had nevertheless considered the relevant trafficking criteria, including whether leave was required for her personal circumstances, and the decision was not shown to be unlawful.

3. The Tribunal held that the Convention’s responsibilities are not confined to a person trafficked into the United Kingdom. They extend to a victim of historical trafficking into the country from which that person later travelled to the United Kingdom. Article 10(2) refers to a person who has been a victim and does not limit the identification and assistance duty by reference to the destination state of the earlier trafficking. The Tribunal approved the reasoning in Atamewan [2013] EWHC 2727 (Admin), while observing that this conclusion did not assist the appellant because the respondent had offered the requisite consideration and protection.

4. Neither Article 4 of the Convention nor Article 4 of the European Convention makes a trafficking victim unreturnable to the country from which they were trafficked. The appellant’s vulnerability and the conditions for trafficked women in Vietnam were relevant, but the chance of encountering her former traffickers was speculative. The evidence did not establish a real risk of fresh trafficking or other serious harm, and it supported the conclusion that Vietnam afforded sufficient protection.

5. The appellant had not shown that she could not obtain evidence of her Vietnamese nationality or documentation for herself and her children. The children’s best interests were a primary consideration and lay in remaining with their mother. The family could return together, and the proportionality balance favoured effective immigration control despite the appellant’s traumatic history and mental-health symptoms.

• Upper Tribunal (Immigration and Asylum Chamber): Appeal dismissed on all grounds.
• Court of Appeal: Remitted the appeal after an earlier Upper Tribunal hearing for reconsideration of internal relocation and a fuller assessment of the children’s circumstances under section 55.
• First-tier Tribunal: Accepted that the appellant had been trafficked from Vietnam to Hungary, but dismissed her protection and Article 8 appeal.