DC v The Secretary of State for the Home Department

In a protection appeal, a Competent Authority trafficking decision under the National Referral Mechanism is evidence, not a determination binding the tribunal. The tribunal must decide relevant past trafficking and future risk on the lower standard of proof, giving the Competent Authority’s decision appropriate weight.

In a human rights appeal, an irrational trafficking decision may exceptionally reduce the weight otherwise given to immigration control and make immediate removal disproportionate under Article 8. That route is narrow. Past trafficking may also be relevant to Article 8 because of its physical or psychological consequences, independently of any future trafficking risk.

The appellant, an Albanian national and single mother, appealed against the refusal of protection and human rights claims. She alleged that she had been forced into prostitution and was at risk from her former controller and her father if returned to Albania.

The First-tier Tribunal allowed the appeal. Upper Tribunal Judge Gill set that decision aside because it gave inadequate reasons for accepting the account and reversed the burden of proof. The appeal was retained for re-making and for guidance on the effect of a negative Competent Authority conclusive-grounds decision.

The central issues were the proper approach to trafficking decisions in protection and human rights appeals, and whether the appellant had established a real risk of persecution, Article 3 ill-treatment, or a breach of Article 8 on return.

1. Appeal dismissed. The appellant did not establish, even to the lower standard of proof, that any material part of her trafficking, prostitution, or family-abuse account was true. She therefore failed to show a real risk of persecution or Article 3 ill-treatment on return. Her Article 8 claim also failed.

2. In a protection appeal, the tribunal must determine risk on return for itself. A Competent Authority reasonable-grounds or conclusive-grounds decision is part of the evidential picture and must receive such weight as is due. A negative conclusive-grounds decision, made on the balance of probabilities, does not determine whether trafficking is reasonably likely when that fact is relevant to prospective protection risk. This accords with the proper scope of Secretary of State for the Home Department v MS (Pakistan) [2018] EWCA Civ 594.

3. A tribunal cannot use a statutory appeal as an indirect merits challenge to the Competent Authority’s application of trafficking policy. The direct challenge is judicial review on rationality grounds. Nevertheless, where an irrational trafficking decision has deprived a person of a potentially material policy benefit, immediate removal may, in an exceptional case, be disproportionate under Article 8 while the error remains uncorrected.

4. The fact of past trafficking can separately bear on an Article 8 assessment, including through physical or psychological harm and related needs, even where no trafficking-related future risk is alleged. In that context too, the Competent Authority decision is evidence rather than a binding factual finding.

5. On the facts, the appellant’s new and inconsistent accounts, including an implausible allegation that she drugged her uncle’s household to conceal prostitution, undermined her credibility. She had not shown hostility from her family, lack of support in Albania, or circumstances making return contrary to the child’s best interests.

• Upper Tribunal (Immigration and Asylum Chamber): Re-made the appeal after the earlier First-tier Tribunal decision had been set aside, and dismissed the protection and human rights appeal.
• Upper Tribunal (Immigration and Asylum Chamber): On 11 April 2019, Upper Tribunal Judge Gill set aside the First-tier Tribunal’s decision for material errors of law and directed that the appeal be re-made in the Upper Tribunal.
• First-tier Tribunal: Allowed the appellant’s appeal against the refusal of her protection claim. That decision was subsequently set aside.