AUJ v The Secretary of State for the Home Department

Where no Conclusive Grounds decision has been made, a tribunal must decide evidence of past trafficking or modern slavery only if it is relevant to whether removal would breach the Refugee Convention or the appellant’s protected Convention rights. The appellant must establish the relevant facts to the lower standard of proof.

A failure to refer a potential victim through the National Referral Mechanism, or an alleged breach of the procedural duty under Article 4, does not itself require the tribunal to determine trafficking facts. The tribunal cannot decide whether the United Kingdom has breached the European Convention on Action Against Trafficking in Human Beings. Evidence of past exploitation that has no demonstrated bearing on removal need not be determined.

The appellant appealed against the First-tier Tribunal’s dismissal of his asylum and human-rights appeal. He said that, after arriving in the United Kingdom in 1998, a couple forced him into servitude for a few days. The First-tier Tribunal made no finding on that account and did not determine his private-life claim under paragraph 276ADE(1)(vi) of the Immigration Rules.

The Upper Tribunal considered whether either omission was a material error of law. The appellant had not claimed that past trafficking created a future risk in Bangladesh, nor that any need for rehabilitation or reparation made removal incompatible with his Convention rights. The central issues were the relevance of trafficking evidence where there was no Conclusive Grounds decision, and whether the asserted obstacles to reintegration required a different result under paragraph 276ADE(1)(vi).

1. The appeal was dismissed. The First-tier Tribunal’s decision contained no material error of law and was not set aside.

2. In a statutory appeal, the Tribunal’s function is confined to deciding whether removal would breach the Refugee Convention or protected rights under the ECHR. It is not entitled to determine whether the United Kingdom has breached the European Convention on Action Against Trafficking in Human Beings, or the procedural obligation under Article 4 of the ECHR by failing or delaying a referral to the National Referral Mechanism.

3. Where there is no Conclusive Grounds decision, evidence of past trafficking must be determined where the appellant alleges that it creates a future risk of persecution, re-trafficking or modern slavery, or that its effects make removal incompatible with protected human rights. Where no such claim is advanced, the appellant must show, to the lower standard of proof, that the Secretary of State’s duty of reparation may make removal incompatible with those rights. If the evidence does not make that issue relevant, findings on past trafficking may be unnecessary.

4. Here, the appellant had not advanced a trafficking-related future-risk or rehabilitation claim. There was no medical or other evidence that his brief alleged servitude almost 19 years earlier affected his physical, psychological or social recovery, or would affect his return. Any omission to make a finding was therefore immaterial.

5. Although the First-tier Tribunal should have addressed paragraph 276ADE(1)(vi), any error was immaterial. On the findings that the appellant was Bangladeshi, had lived there until age 14, spoke Bengali and had lived within the Bangladeshi community in the United Kingdom, the limited evidence could not establish very significant obstacles to reintegration in Bangladesh.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal on error of law and upheld the First-tier Tribunal’s decision.
• First-tier Tribunal: dismissed the appellant’s asylum and human-rights appeal in a determination promulgated on 21 November 2017.