Case Law

In the light of the judgment of Flaux LJ in Secretary of State for the Home Department v MS (Pakistan) [2018] EWCA Civ 594 and subsequent decisions of the Upper Tribunal and Administrative Court, a tribunal deciding a protection or human rights appeal, which concerns alleged trafficking within the scope of the Council of Europe Convention on Action against Trafficking in Human Beings and decisions of the Competent Authority (CA) under the United Kingdom’s National Referral Mechanism, should proceed as follows: (a) In a protection appeal, the “reasonable grounds” or “conclusive grounds” decision of the CA will be part of the evidence that the tribunal will have to assess in reaching its decision on that appeal, giving the CA’s decision such weight as is due, bearing in mind that the standard of proof applied by the CA in a “conclusive grounds” decision was the balance of probabilities. (b) In a human rights appeal, a finding by the tribunal that the CA has failed to reach a rational decision on whether the appellant has been the victim of trafficking, such as to be eligible for leave to remain in the United Kingdom for that reason alone, may lead the tribunal to allow the human rights appeal, on the basis that removing the appellant at this stage would be a disproportionate interference with the appellant’s Article 8 ECHR rights. This scenario is, however, of narrow ambit and is unlikely to be much encountered in practice. (c) In a human rights appeal, the question whether the appellant has been the victim of trafficking may be relevant to the issue of whether the appellant’s removal would breach the ECHR, even where it is not asserted there is a trafficking-related risk of harm in the country of proposed return and irrespective of what is said in sub-paragraph (b) above: e.g. where the fact of trafficking may have caused the appellant physical or psychological harm. Here, as in sub-paragraph (a) above, the CA’s decision on past trafficking will be part of the evidence to be assessed by the tribunal.

13 November 2019 | Judicial Body: United Kingdom: Upper Tribunal (Immigration and Asylum Chamber) | Topic(s): Standard of proof - Trafficking in persons | Countries: Albania - United Kingdom of Great Britain and Northern Ireland

1. Following the amendment to s 82 of the Nationality, Immigration and Asylum Act 2002 ('the 2002 Act'), effective from 20 October 2014, a previous decision made by the Competent Authority within the National Referral Mechanism (made on the balance of probabilities) is not of primary relevance to the determination of an asylum appeal, despite the decisions of the Court of Appeal in AS (Afghanistan) v SSHD [2013] EWCA Civ 1469 and SSHD v MS (Pakistan) [2018] EWCA Civ 594. 2. The correct approach to determining whether a person claiming to be a victim of trafficking is entitled to asylum is to consider all the evidence in the round as at the date of hearing, applying the lower standard of proof. 3. Since 20 October 2014, there is also no right of appeal on the basis that a decision is not in accordance with the law and the grounds of appeal are limited to those set out in the amended s 82 of the 2002 Act.

29 October 2018 | Judicial Body: United Kingdom: Upper Tribunal (Immigration and Asylum Chamber) | Topic(s): Internal flight alternative (IFA) / Internal relocation alternative (IRA) / Internal protection alternative (IPA) - Social group persecution - Standard of proof - Trafficking in persons | Countries: Albania - United Kingdom of Great Britain and Northern Ireland

The appeal raises two points of principle: first, the standard of proof applicable to the determination of whether a person qualifies for the status of a stateless person as defined in the 1954 Convention relating to the Status of Stateless Persons ("the 1954 Convention”); and secondly, the relevance of a finding that a person is stateless to an assessment carried out pursuant to paragraph 390A of the Immigration Rules.

12 October 2018 | Judicial Body: United Kingdom: Court of Appeal (England and Wales) | Topic(s): Proof of nationality - Standard of proof - Statelessness | Countries: Guinea - United Kingdom of Great Britain and Northern Ireland

16 December 2014 | Judicial Body: United Kingdom: Court of Appeal (England and Wales) | Topic(s): Illegal immigrants / Undocumented migrants - Standard of proof | Countries: Eritrea - United Kingdom of Great Britain and Northern Ireland

10 December 2014 | Judicial Body: United Kingdom: Upper Tribunal (Immigration and Asylum Chamber) | Topic(s): Credibility assessment - Rule of law / Due process / Procedural fairness - Standard of proof | Countries: Afghanistan - United Kingdom of Great Britain and Northern Ireland

9 December 2014 | Judicial Body: Belgium: Conseil du Contentieux des Etrangers | Topic(s): Credibility assessment - Lesbian, gay, bisexual, transgender and intersex (LGBTI) - Persecution on the basis of sexual orientation or gender identity - Standard of proof | Countries: Belgium - Senegal

Petition for review granted on grounds that both the Immigration Judge and the BIA applied the wrong legal standard ("The immigration judge made a clear legal error by concluding that the 'facts do not compel a finding that [the applicant] suffered past persecution'”.), and case remanded for further proceedings.

20 May 2013 | Judicial Body: United States Court of Appeals for the Seventh Circuit | Countries: Moldova, Republic of - United States of America

1 May 2013 | Judicial Body: United Kingdom: Upper Tribunal (Immigration and Asylum Chamber) | Countries: Afghanistan - United Kingdom of Great Britain and Northern Ireland

28 March 2013 | Judicial Body: United Kingdom: Upper Tribunal (Immigration and Asylum Chamber) | Countries: Algeria - United Kingdom of Great Britain and Northern Ireland

13 January 2012 | Judicial Body: Netherlands, The: Council of State (Raad van State) | Topic(s): Administrative law - Evidence (including age and language assessments / medico-legal reports) - Lesbian, gay, bisexual, transgender and intersex (LGBTI) - Persecution on the basis of sexual orientation or gender identity - Social group persecution - Standard of proof | Countries: Iran, Islamic Republic of - Netherlands