E.K. appealed to an Immigration Judge against the Secretary of State’s decision to remove her from the United Kingdom, claiming that she was a victim of human trafficking and would be at risk on return to Tanzania.
The appellant (E.K.) had worked as a cleaner for Mrs Z.A. and her husband in Tanzania for two years. Mrs Z.A. tricked the appellant into accompanying into the UK, under the false pretence of a supposed surgery she was going undergo in the UK, and after which she would need the appellant’s assistance during her convalescence. However, shortly after her arrival, E.K.was left in the United Kingdom with Mrs Z.A.´s parents, Mr and Mrs Dhanji. The appellant was then told that she would be working for Mr and Mrs D. from then on. The appellant worked from 7 o’clock in the morning until 10.30 in the evening and was expected to clean the house thoroughly every day, massage Mrs D. twice a day, deal with the laundry, cook, garden and prepare Mr and Mrs D. for bed. She only had three breaks for food in the day when she ate leftovers and stale bread, and she was required to sleep on a thin mattress on the kitchen floor, although there was an unused spare bedroom in the house. Her living conditions were extremely poor and she did not receive any wages nor was she given any time off. She was also required to work on demand at the homes of the D.´s relatives. Initially she was not allowed to attend church but was later permitted to do so.
The appellant’s passport was kept by the D. family. Although she asked to be allowed to return to Tanzania on a number of occasions she was told that she could not do so until at least July 2007. She was not allowed contact with her family by telephone as they said it was too expensive.
The appellant worked for Mr and Mrs D. between July 2006 and May 2007. One day she was approached at church by a member of the congregation who took her to see Mrs M.K., who informed the Tanzanian Embassy about the appellant’s situation. The Tanzanian Embassy contacted Mr and Mrs D. to tell them that the appellant would not be returning to their employment, and the appellant stayed with Mrs M.K. at her home. However, conditions at M.K.’s household were little better than before. The appellant was manipulated by M.K. and required to work as a domestic worker for her. Again she was often required to sleep on a mattress on the floor. The appellant stayed with Mrs M.K. for three years between May 2007 and May 2010, until she was referred to the Poppy Project by Kalayaan, a charity which gives advice and support to migrants who enter the United Kingdom on a domestic worker visa. She was given accommodation by the Poppy Project, but by this time her health was very poor due to the abuses and the poor conditions she had endured while working for the D. family, and subsequently at Mrs M.K.´s household.
The judge found that there was no evidence to show a real risk that the D. family and Mrs Z.A. remained angry with the appellant to the extent that she faced a real risk of harm from them. Moreover, the judge considered that there was no real risk of internal re-trafficking, given that this issue mostly affects vulnerable women in rural areas of Tanzania. The judge based her findings in this regard on the US State Department Report, which was considered a proper source for the judge to take evidence from.
As to Art. 8 of the Human Rights Convention (right to respect for private and family life), the judge concluded that the appellant had established a private life through the friendships she had made and through her contact with Kalayaan and the Poppy Project. As regards the proportionality of removal, the judge considered that the appellant would be in a position to re-establish a private life, albeit it a different one, on return to Tanzania, where several of her close relatives lived; and that she had begun to study English which would assist her in gaining employment.
Finally, and with respect to Art. 3 of the Human Rights Convention (prohibition of torture or inhuman or degrading treatment), the judge considered that although she had suffered from tuberculosis and from some of the after effects of this disease it had been successfully treated and she was undergoing continuing treatment, and that there was available medical treatment in Tanzania. The judge also noted that both Kalayaan and the Poppy Project referred to her poor emotional state but that this had not been backed up by any medical evidence justifying that she would not be able to work. The judge held that the evidence showed that tuberculosis was recognised as a serious illness in Tanzania and it was being addressed by the Tanzanian authorities and by international organisations and NGOs.
We must note here that the judge did not consider the UK’s obligations under Article 4 of the European Convention against Human Rights and the appellant’s rights under the European Convention against Trafficking in Human beings in her decision; which constitutes the central argument for the appellant’s case before the Upper Tribunal.
The case before the Upper Tribunal concerned the re-making of the first instance judge’s decision on the appellant’s appeal against the Secretary of State’s decision to remove her from the United Kingdom. The appellant claimed that she was a victim of human trafficking, and that Article 4 of the European Convention on Human Rights and the Council of Europe’s Convention against Trafficking in Human Beings should have been taken into consideration in her case.
The appellant’s representation submitted that the judge had failed to determine the appellant’s ground of appeal under the Convention against Trafficking. Reference was made, in this sense, to article 14 of the European Convention against Trafficking in Human Beings, which provides for the grant of a renewable residence permit for twelve months where (a) the competent authority considers that the stay is necessary owing to the victim’s personal situation; and (b) the competent authority considers that the victim’s stay is necessary for the purpose of his/her co-operation with the competent authorities in investigations or criminal proceedings. Moreover, article 16 provides that when a party returns a victim to another state, such return shall be with due regard to the rights, safety and dignity of that person and for the status of any legal proceedings related to the fact that the person is a victim, and that return shall preferably be voluntary. The appellant’s representation argued that the judge should have considered these rights upon identification as a victim of trafficking by the Secretary of State and the judge. The judge, however, did not refer to the Convention or determine any arguments related to it.
With regards to Article 4 of the European Convention of Human Rights, the appellant claimed that the judge had erred in her conclusion that there had to be a real likelihood that the appellant remained a potential victim of trafficking (at risk of trafficking) in order to engage Article 4. It was also argued the judge failed to consider the remedial and protective duties arising under Article 4 and that these relate not solely to prevention but include consideration of the specific needs of the appellant as a victim of domestic servitude and trafficking.
Article 4 of the Convention provides, in so far as relevant, that:
“1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour”
The Court made reference in this regard, to the case of Rantsev v Cyprus and Russia [2010] ECHR 22, in which the European Court of Human Rights considered the relationship between trafficking in human beings and Article 4 of the Convention. In this case, the Court took as the meaning of trafficking the definition given in Article 3(a) of the Palermo Protocol. The European Court concluded that trafficking itself, within the meaning of the Palermo Protocol, fell within the scope of Article 4 of the European Convention. In Rantsev v. Cyprus, the Court pointed out that Article 4 of the Convention imposed a positive obligation on Member States to put in place an appropriate legislative and administrative framework to ensure the practical and effective protection of the rights of victims or potential victims of trafficking.
The appellate court highlighted that the State’s obligation to ensure practical and effective protection of the rights of potential victims of trafficking was not created by the ratification of the Anti-Trafficking Convention, nor did it come into being in 2010 with the issuing of the judgement in Rantsev. The Court explained that Article 4 of the Convention had always required States to provide this protection.
The Court noted that the definition of trafficking has three components:
i. the action of recruitment, transportation etc. of persons;
ii. by means of threat, force, deception etc;
iii. for the purpose of exploitation forced labour etc.
However, the protection afforded by the Convention is against being required to perform forced labour, which is a right of all domestic workers, regardless of whether the other components of the definition of trafficking apply or not. Therefore, there could not be a distinction, for the purposes of Art. 4 of the Convention, between a domestic worker who was trafficked for exploitation by way of forced labour and one who arrived voluntarily and was then subjected to forced labour.
The appellant, however was given no information concerning her rights in the UK by the officer who interviewed her during her VISA application process, and neither was she given the leaflet devised by the government to provide information about the rights of migrant domestic rights, about access to health and assistance, and about the work of and contact information for Kalayaan. Accordingly, the Court found that while the government’s immigration policy at the time of the appellant’s trafficking from Tanzania was issued by the UK as part of an effort to combat exploitation, the respondent had breached his own policy, and had failed to comply with the arrangements which were put in place to provide the protection which Article 4 of the Convention guarantees. The Court held that the leaflet mentioned would have provided important information to the appellant which she could have used to address her circumstances. Therefore, the Court found that a sufficient link had been established between the respondent’s failure to abide by the protective obligations required of her by Article 4 of the Convention and the harm the appellant was subjected to in the United Kingdom.
Moreover, the medical evidence available before the appellate court provided with a much fuller picture of the appellant’s health than was before the First-tier Tribunal Judge. The Court noted that the appellant suffered an unusually serious case of tuberculosis, which had caused her to lose one of her lungs, and had caused irreversible damage.
The Court concluded that as a victim of trafficking the appellant was owed certain duties by the respondent under the Anti-Trafficking Convention. Article 14 of the Anti-Trafficking Convention obliges the respondent to provide the appellant with a residence permit if she considers that the appellant’s stay is necessary owing to her personal situation. The Court agreed that a victim’s personal situation must include consideration of his or her medical needs, and that it was appropriate to start from the appreciation that the appellant’s medical condition was linked to the breach of her rights under Article 4 of the Convention, in other words that the State should recognise a degree of responsibility for it.
The Court found that the judge had erred in the first instance, firstly in failing to determine the appellant’s ground of appeal relating to the Council of Europe Convention against Trafficking in Human Beings of 1 April 2004 (Council of Europe Treaty series number 197)(The Convention against Trafficking) and also in respect of her findings in connection with Article 4 of the European Human Rights Convention.
Accordingly, the Court decided that the respondent’s decisions to refuse to grant the appellant leave to remain in the UK, and to decline to accept that she was in need of humanitarian protection were made “without taking account of the link between the appellant’s precarious state of health and the breach of the respondent’s own protective obligations in terms of policy and Article 4 of the Convention”. The Court therefore allowed the appeal and held that the decision appealed against was not in accordance with the law.
Upper Tribunal (Immigration and Asylum Chamber)
