The appellant in this case is a victim of human trafficking. She is a citizen of Nigeria and arrived in the United Kingdom on 10 January 2005. She was brought here by a man called Osagie. He had persuaded her that he would employ her in his factory in this country. At the time, the appellant was living in poverty in Benin City. Her father had died before she was born and her mother had died when giving birth to her. She was brought up by an aunt to whom she was very close. She was convinced by Osagie’s promises of financial security which would enable her and her aunt to escape from poverty. It was only after she and Osagie arrived in the United Kingdom that she discovered his true purpose. It was to use her for his sexual gratification and that of two associates and to deploy and exploit her for purposes of prostitution. She was required to earn and hand over large sums of money, initially fixed at ₤20,000 but later raised to ₤50,000. Osagie’s treatment of her was horrific. In March 2005 she escaped. On 31 March 2005, she was arrested. It soon became apparent that she was an illegal entrant. She told the police about Osagie and about her experiences at his hands. She was handed over to immigration officers who detained her. It was at that stage that she applied for asylum. A few days later she was released from detention and came into the care of a charity which provided her with accommodation and arranged for her to received medical care. She has a diagnosis of severe depression and post-traumatic stress disorder.
United Kingdom of Great Britain and Northern Ireland
NigeriaOn 13 April 2005, the Secretary of State refused the asylum application of the applicant. Protracted proceedings in the Asylum and Immigration Tribunal (AIT) ensued. On 10 October 2005 Judge Malins allowed the appellant’s appeal on asylum and human rights grounds. The Secretary of State sought and obtained an order for reconsideration. On 5 March 2007, Immigration Judge Grant dismissed the appellant’s appeal on asylum, humanitarian protection and human rights grounds. On 24 October 2007, following an oral hearing, Sedley LJ granted her permission to appeal to the Court of Appeal. The appeal was allowed by consent pursuant to an order of Laws LJ dated 7 January 2008. Immigration Judge Grant’s Determination was set aside and the case was remitted for further consideration. The case came before a panel of three in the AIT, including two Senior Immigration Judges. The determination bears the citation PO (Trafficked Woman) Nigeria CG [2009] UKAIT 00046. The AIT dismissed the appellant’s appeal and the appellant thus appealed to the Court of Appeal.
[2009] UKAIT 00046: The Asylum and Immigration Tribunal, 23 November 2009:
The AIT addressed the following issues: 1. whether the Nigerian state provide a sufficiency of protection to victims of trafficking; 2. the availability and adequacy of shelters in Nigeria for such victims; and 3. the enhanced risk to a returned victim when she had been trafficked by a gang. The AIT concluded that, in general, the Nigerian state is both able and willing to discharge its duty to protect its own national from traffickers. It also concluded that the appellant and her baby would receive adequate care and facilities in a shelter in her home area and that she had been the victim of an individual rather than a gang, with the result that she was not in the enhanced risk category. The appellant challenged the way in which AIT approached the issue of shelters and its application of the guidance on gangs. The AIT dismissed the appellant’s appeal. The appellant and her child have been granted indefinite leave to remain in the United Kingdom.
The Court of Appeal (Civil Division)
Ground 1: Adequacy of shelters in Nigeria
The appellant argued that the AIT erred in law in that it preferred, without rational justification, email evidence obtained from NAPTIP- National Agency for the Protection of Trafficking in Persons (which stated that a returning victim with a young baby would be admitted to a shelter without delay and would be provided with medical and psychological services) over the evidence of an expert witness (which stated that although NAPTIP offers counselling and provides some medical services, the level of expertise and personnel for counselling or therapy for victims is still very low in not non-existent in these shelters, and it is likely that the appellant would not be accepted in a shelter because they do not have facilities for the care of babies). The AIT stated that the witness’s evidence was not objectively based.
The Court of Appeal concluded that this ground of appeal is well-founded. The Court had a deep unease about the way in which the evidence of the expert witness was rejected.
Ground 2: The question of “gangs”
The AIT concluded that there was no evidence that Mr. Osagie had been a member of a gang in Nigeria or that he had employed any gang members, and, the appellant had thus not been at risk from unidentified members of a trafficking gang. The appellant argued that the AIT erred in law by requiring the appellant to prove by personal evidence that her trafficker had operated as part of a gang in Nigeria, as a necessary element in establishing that she would be at risk on return.
The Court concurred with the appellant that the AIT imposed an inappropriate burden by requiring the appellant to prove by personal evidence that a gang had been involved. Further, statements of the appellant in previous interviews noted, e.g., that Osagie had referred to “many gangs working for him” and “”he has people all over Nigeria”. These statements are difficult to reconcile with the finding that there was no evidence that Mr. Osagie was himself a member of a gang in Nigeria. The AIT failed to take into account the appellant’s evidence which provided a foundation and the uncontradicted objective evidence, for a finding that Osagie was not simply an individual trafficker acting alone.
The Court of Appeal allowed the appeal and remitted the case for further reconsideration by the Upper Tribunal.