ES v The Secretary of State for the Home Department

In a protection appeal under the post-20 October 2014 version of Nationality, Immigration and Asylum Act 2002, a negative National Referral Mechanism conclusive-grounds decision is not of primary relevance. The tribunal must decide the protection claim on all the evidence at the hearing and apply the lower asylum standard.

The statutory appeal does not provide a freestanding remedy for an alleged failure to apply the National Referral Mechanism. A person may nevertheless establish refugee status as a trafficking victim despite a negative decision reached under that mechanism on the balance of probabilities.

The appellant, an Albanian national, claimed asylum after alleging that she had been trafficked for sexual exploitation in Albania and Italy. The Competent Authority made a negative conclusive-grounds decision under the National Referral Mechanism, and the respondent refused asylum.

Her appeal was initially allowed by the First-tier Tribunal. That decision was set aside and remitted for a fresh hearing. A later First-tier Tribunal dismissal was also set aside, and the appeal was retained in the Upper Tribunal for a de novo hearing.

The central issue was whether the negative National Referral Mechanism decision restricted the tribunal’s fact-finding in this post-2014 statutory protection appeal and, if not, whether the appellant qualified for refugee protection.

1. Appeal allowed. The tribunal found, to the applicable lower standard of proof, that the appellant had been trafficked for sexual exploitation and faced persecution for a Refugee Convention reason if returned to Albania.

2. Following the amendment of section 82 of the Nationality, Immigration and Asylum Act 2002, the appeal was against refusal of a protection claim, not a removal decision under the former regime. The tribunal’s task was to decide whether removal would breach the Refugee Convention. It had to assess the evidence in the round at the date of hearing.

3. A negative conclusive-grounds decision was reached on the balance of probabilities. It did not prevent the tribunal from finding trafficking proved to the asylum standard of a reasonable degree of likelihood. The appellant had no statutory appeal ground that the National Referral Mechanism decision was not in accordance with the law; any complaint about application of that policy lay in judicial review.

4. The appellant’s account was consistent with objective material about Albanian trafficking practices. Her vulnerability, complex trauma, lack of family support, pregnancy and the risk of recognition meant that effective state or family protection was not available. A shelter or internal relocation would not reasonably protect her or avoid undue hardship.

• Upper Tribunal (Immigration and Asylum Chamber): The appeal was retained for a de novo hearing after Dr Storey set aside the First-tier Tribunal’s dismissal in a decision promulgated on 27 March 2018.
• First-tier Tribunal: Judge Andrew dismissed the appeal in a decision promulgated on 7 August 2017; that decision was set aside.
• Upper Tribunal (Immigration and Asylum Chamber): Judge Hanson set aside an earlier First-tier Tribunal decision allowing the appeal, for material error of law, and remitted the appeal for a de novo hearing in a decision promulgated on 16 February 2017.
• First-tier Tribunal: Judge Heatherington initially allowed the appeal in a decision promulgated on 13 October 2016.