THE IMMIGRATION ACTS. Before UPPER TRIBUNAL JUDGE CANAVAN. Between. and. THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent

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1 Upper Tribunal (Immigration and Asylum Chamber) Appeal Number: AA THE IMMIGRATION ACTS Heard at Field House Decision & Reasons Promulgated On 13 April 2016 On 10 June 2016 Before UPPER TRIBUNAL JUDGE CANAVAN Between A M Appellant and THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent Representation: (ANONYMITY DIRECTION MADE) For the Appellant: Ms B. Poynor, Counsel instructed by Bindmans Solicitors For the Respondent: Mr T. Wilding, Senior Home Office Presenting Officer Anonymity Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008 Anonymity was granted at an earlier stage of the proceedings because the case involves protection issues. I find that it is appropriate to continue the order. Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could CROWN COPYRIGHT 2016

2 lead to contempt of court proceedings. DECISION AND REASONS 1. A brief summary of the background to the appeal is set out in the annexed error of law decision. The First-tier Tribunal was set aside and further to written submissions received from both parties. I now remake the decision. 2. The focus of the appeal is as follows: (i) (ii) (iii) (iv) (v) The appellant s account of past events is accepted. It is accepted that the appellant is a victim of trafficking. It is not disputed that the appellant is a vulnerable person. Various reports and other pieces of evidence support her claim. The appellant s vulnerability and current support network in the UK underpinned the respondent s decision to grant her Discretionary Leave to Remain until 04 May The appellant did not seek to challenge the First-tier Tribunal Judge s findings relating to the absence of a real risk emanating from her former employer. Those findings shall stand. The focus of the appeal is whether, in light of the appellant s particular circumstances, there is in general a real risk of retrafficking that would bring her within the protection of the Refugee Convention. Decision and reasons 3. I have taken into account the further written submissions made by both parties as well as the expert and background evidence before the tribunal. 4. The appellant s account of past events in Morocco can be summarised as follows. She comes from a large family from the Sale area of Rabat. She is the fifth of ten children. Her father worked in construction but is now retired. Her mother is blind. The appellant attended primary school but she had to leave school when she was eleven years old because her family could not afford to continue her education. She helped her sisters, who worked as cleaners. She had to start work at such a young age in order to help pay for the younger children to get a basic education. She says that the economic situation was very bad in Morocco. 5. In 1998 she was offered a job, through a friend, with a family in Saudi Arabia. She worked for the family for about four years. She says that the family treated her so-so. She was paid but sometimes they would shout at her. She left that job because she was not happy living in Saudi Arabia 2

3 and she missed her family. On return to Morocco she was unable to find regular employment but worked on and off as a cleaner. 6. In September 2011 her sister, Z, encouraged her to apply for a job in the household of Mrs C. Z worked as a cleaner for Mrs C s cousin. The appellant says that she was not in a position to negotiate with Mrs C and agreed to her terms because she needed a job. She gives a long and detailed account of subsequent events. It is not necessary to set them out here save to say that the events form the basis of the finding that she has been trafficked. As a result of those events she has been diagnosed with Post-traumatic Stress Disorder and has been assessed as being in need of high levels of support because of her particular vulnerabilities. 7. It is accepted that the appellant is a victim of trafficking. I find that the past ill-treatment is sufficiently severe to amount to persecution within the meaning of the Refugee Convention. Paragraph 339K of the immigration rules states: 339K. The fact that a person has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, will be regarded as a serious indication of the person s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. 8. In this case the First-tier Tribunal gave sustainable reasons for concluding that there were good reasons to consider that such persecution from her previous employer would not be repeated. Having left her employer there was no reliable evidence to show that she had any adverse or continuing interest in her. Her sister Z continued to work for Mrs C s cousin. Neither she, nor any other member of the appellant s family in Morocco, appeared to have suffered any repercussions. 9. The central issue for determination in this appeal is whether, in light of the appellant s background and particular vulnerability, there is a real risk of further exploitation and abuse of a similar nature if returned to Morocco. 10. The respondent argues that the appellant has family members in Morocco who would be able to support her on return. For this reason there is no good reason to suppose that she would be at real risk of re-trafficking. On behalf of the appellant it is argued that her family was to some extent complicit in arranging her previous employment and are too poor to support the appellant without the pressing economic need for her to work. It is argued that the background and expert evidence shows that she would continue to be at risk of similar exploitation and harm and that the authorities would be unable to provide sufficient protection. 11. A report of the UN Special Rapporteur on trafficking in persons (especially women and children) dated 01 April 2014 sets out the information that she gathered following a visit to Morocco in June The Special Rapporteur prefaced her report by noting that there was a general lack of data and 3

4 knowledge of human trafficking amongst the interlocutors [pg.130 appellant s bundle AB ]. She noted that Morocco was a source, transit and increasingly a destination country for human trafficking. The majority of victims of trafficking appeared to come from the irregular migrant community. Lack of opportunities for education, employment and poverty were said to be the main root causes that might heighten the vulnerability of people to human trafficking [pg.131 AB]. 12. The report recognised that Moroccans were also vulnerable to trafficking. It cited a field survey conducted in 2007, which found that it was predominantly Moroccan women who were employed abroad. In the United Arab Emirates it was said that around 70% of Moroccan ex-patriots were women. Many found that the contracts they were issued did not correspond to the agreed duties of the job and many Moroccan women found themselves trapped in situations of exploitation by prostitution networks [pg.132 AB]. Elsewhere the report cites evidence of a considerable number of Moroccan women living in the Gulf region becoming victims of trafficking, labour and sexual exploitation. While the Ministry in Charge of Moroccans Living Abroad worked with diplomatic and consular missions abroad and received a large number of complaints it did not have a mechanism dedicated to the protection of such victims [pg.137 AB]. 13. The Special Rapporteur found that protection and assistance, as well as access to justice for victims of trafficking and irregular migrants, were very limited. Domestic workers were outside the purview of Moroccan labour law, which left women and girls, both nationals and foreigners, vulnerable to exploitation and abuse. She noted that the absence of adequate protection services dissuaded trafficking victims from seeking help and exposed them to criminals who can act with impunity in the knowledge that victims have no legal recourse or effective remedies [pg.140 AB]. Although the Special Rapporteur acknowledged that Morocco expressed its commitment and resolve to combat trafficking she was concerned that, at that time, there was no specific legislation on trafficking or targeted policies that would provide trafficked persons with adequate protection, assistance or support in their recovery process [pg.144 AB]. 14. The US State Department Trafficking in Persons (TIP) Report dated July 2015 categorises Morocco as a Tier 2 country (government does not comply with minimum standards for the elimination of trafficking but is making significant efforts to do so). The report is consistent in stating that irregular migrants are particularly vulnerable to trafficking but also notes that many Moroccan men, women and children are exploited in forced labour and sex trafficking. The government of Morocco does not full comply with minimum standards but is making significant efforts to do so. In the reporting period the government adopted a national antitrafficking action plan, which included commitments to adopt an antitrafficking law [pg.125 & 127 AB]. However, Moroccan law does not prohibit all forms of human trafficking. The lack of anti-trafficking 4

5 legislation and confusion amongst officials in differentiating between human smuggling, illegal migration and human trafficking offences remained a serious obstacle to what were described as modest law enforcement efforts [pg.126 AB]. 15. While the government had made some progress there was no evidence of government services designed specifically to assist trafficking victims. The government did not report providing care for Moroccan trafficking victims. While some services were available to women and child victims of violence the government did not report that these services were available to trafficking victims [pg.126 AB]. The Ministry of Employment and Social Affairs conducted labour inspections and identified hundreds of child labourers in the first quarter of 2014 but did not identify victims of trafficking in this group. Inspectors were said to be hindered by inadequate staffing. They did not have the legal authority to enter homes thereby preventing them from identifying those in domestic servitude [pg.127 AB]. 16. Further evidence is outlined in the expert report of Dr Katja Žvan Elliot. She is an Assistant Professor in North African and Middle East Studies at Al Akhawayn University in Ifrane, Morocco. She has a background in research on the issue of Moroccan gender and family relationships. She is currently conducting research on state sanctioned violence against women in Morocco. The summary of her experiences sets out a number of her articles and publications, which largely concentrate on issues surrounding women s rights in Morocco. The report is presented in a way that is broadly consistent with the tribunal practice direction. While the summary of her experience and expertise does not disclose any specialist knowledge or experience in relation to trafficking of persons I accept that Dr Žvan Elliot is an academic with relevant knowledge of government and politics in Morocco, and that as part of her work on women s rights, it is at least likely that she may have developed some knowledge of those issues. As such I find that I can place weight on the opinions expressed in her report as expert evidence. 17. So far as Dr Žvan Elliot makes comment on the situation of trafficking in Morocco she does so with reference to background evidence such as the US TIP report. I have already outlined the main points drawn from the more recent report above. Where her evidence is more helpful is in relation to her knowledge of Moroccan government and society. She points out that the norm is for women to live with their families. In considering whether it would be possible for the appellant to live elsewhere she states that lower-class black women living on their own in poor neighbourhoods are likely to be viewed as prostitutes and may face serious harassment by local people as well as the police. Even if the appellant were to find a job as a domestic worker she is unlikely to earn enough to support herself. The additional need to provide support to her family would compound the problem. She confirms that the appellant s father, as a former construction worker, would not receive a pension (this is reserved for public sector 5

6 workers). Dr Žvan Elliot points out that, contrary to the assertions made in the reasons for refusal letter, the situation for women s rights is not improving in practice, particularly for those who come from poor and marginalised classes [pg.120 AB]. 18. Dr Žvan Elliot states that Morocco is an authoritarian country where corruption continues to pervade the police force. There is a general lack of trust in the authorities. The reality is that police protection is not guaranteed to all citizens, and is significantly impacted by one s social standing and connections. She concludes that the appellant, as a poor black woman without connections, education or skills, would face a very hard time if returned to Morocco. In her opinion it is likely that because of her poor background the appellant would be at risk of further exploitation for the purpose of domestic servitude. Her anecdotal evidence is that as a poor woman who would most likely work as domestic help she could be taken advantage of by a future employer and may even be re-trafficked. Dr Žvan Elliot emphasised that it was impossible to overstate how much material and social deprivation, as well as skin colour, impact on Moroccan people s quality of life and the way in which law enforcement officials deal with them. She concluded that poor women, in particular, are most vulnerable to organised crime [pg ] 19. The evidence shows that the appellant comes from a poor and therefore marginalised section of Moroccan society. Because her family lived in poverty she was forced to abandon her education and had to go out to work from a very young age. The same economic imperatives will prevail if she returns to Morocco. The appellant s account is consistent with the background evidence. She was forced to seek work in the Saudi Arabia. While she was lucky that her experience there was not too bad the background evidence shows that many Moroccan women, in particular, are at risk of exploitation and abuse while working in domestic situations in the Gulf region. The evidence shows that irregular migrant communities are particularly at risk of trafficking in Morocco but also supports the assertion that poor and marginalised Moroccans are forced into seeking work where they may be at risk of exploitation and abuse. 20. The appellant s social and economic background meant that she was amongst those who are most vulnerable to trafficking and exploitation. While there is no suggestion that her family would want to deliberately place her in a position of harm the reality of their economic situation shows that there is at least a serious possibility that the appellant would have to seek work in the same way as she did before, and would face the same risk of exploitation as before, even if she returned to live with her family. If she attempted to live away from her family the evidence suggests that she would be even more vulnerable to a risk of serious harm. If this is then put in the context of the evidence relating to the appellant s particular vulnerability and reliance on high levels of support in the UK then, in my assessment, the likelihood of the appellant being at 6

7 risk of further exploitation reaches the low standard of proof required in an asylum claim. 21. The background and other evidence shows that, while the Moroccan government has made efforts to work towards improving the situation, there is still no adequate legal framework, resources or training to protection victims of trafficking or to protect those who are vulnerable to exploitation. The appellant s marginalised social standing would make it even more difficult to access adequate assistance from the police if required. Domestic labour law would provide no protection if she was forced to return to domestic work. 22. The appellant does not need to show with any certainty that she would be exploited or re-trafficked but I am satisfied that the evidence before me shows that there are no good reasons to consider that the serious harm she suffered in the past would not be repeated. I conclude that there is at least a real risk of serious harm if the appellant is returned to Morocco at the current time. DECISION I re-make the decision and ALLOW the appeal Signed Date 08 June 2016 Upper Tribunal Judge Canavan 7

8 ANNEX error of law decision Upper Tribunal (Immigration and Asylum Chamber) Appeal Number: AA/03521/2014 THE IMMIGRATION ACTS Heard at Field House On 13 April 2016 Before Decision Promulgated UPPER TRIBUNAL JUDGE CANAVAN Between A M Appellant and THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent Representation: (ANONYMITY DIRECTION MADE) For the Appellant: Ms B. Poynor, Counsel instructed by Bindmans Solicitors For the Respondent: Mr T. Wilding, Senior Home Office Presenting Officer 8

9 Anonymity Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008 Anonymity was granted at an earlier stage of the proceedings because the case involves protection issues. I find that it is appropriate to continue the order. Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings. DECISION AND REASONS 1. The appellant has been recognised as a victim of trafficking. As a result of her documented vulnerabilities and the high level of support she is receiving from charities and other agencies in the UK the respondent granted Discretionary Leave to Remain (DLR) until 04 May The appellant pursued an upgrade appeal to the First-tier Tribunal pursuant to section 83 of the Nationality, Immigration and Asylum Act 2002 ( NIAA 2002 ). The appellant feared that she would be at risk from the family who trafficked her to the UK on account of their social status and influence. It was also argued that she would be at a generalised risk of re-trafficking on return to her home country. 3. First-tier Tribunal Bird ( the judge ) dismissed the appeal in a decision promulgated on 09 February The factual background to the claim was not in any real dispute. The judge summarised the issues that she was required to determine in paragraph 19 of the decision: The argument that I must consider is whether, given the appellant s circumstances, namely that she is a former victim of trafficking who is in a vulnerable mental state with no support networks in her country, that she will be at risk of being re-trafficked if returned to [her home country] and is therefore entitled to refugee status because she has a well-founded fear of being persecuted for a Convention reason. In the appellant s case it has been accepted that the appellant is a member of a particular social group having been trafficked to the United Kingdom. The only question is whether if returned to [her home country], there is a reasonable degree of likelihood that the appellant will be retrafficked. The appellant says that she will be because she will be sought out by her former employer who has connections in the government in [her home country] and she will therefore be at risk of further ill-treatment. 4. The judge considered the circumstances surrounding the appellant s trafficking to the UK and whether it was likely that she would be at risk on return to her home country. She concluded that there was no evidence to suggest that there was a real risk, not least because there was no evidence of repercussions for her family in her home country. Her sister still worked for a different member of the family who trafficked her to the UK [25]. The judge took into account the fact that the appellant came from a poor family and that she had other work in the past both in her home country and in Saudi Arabia [26]. While she recognised that there was 9

10 evidence to show that the appellant was vulnerable she concluded that the appellant would have family support on return to her home country and would therefore not be at risk of re-trafficking [27]. 5. The appellant seeks to appeal the decision on the grounds that (i) the First-tier Tribunal failed to make adequate findings in relation to the generalised risk of re-trafficking; and (ii) erred in equating the availability of family support with the test for sufficiency of state protection. 6. The appellant does not challenge the First-tier Tribunal s findings relating to risk on return from her former employers. The appeal focuses solely on the findings relating to generalised risk of re-trafficking. Although the judge wrote a careful and largely well reasoned decision I find that there is some force in the argument that she failed to engage with the evidence relating to risk on return, which included an expert report and background evidence regarding trafficking and exploitation of domestic workers in the appellant s home country. The decision is absent any analysis of that evidence. Nor is there any analysis of how and why the appellant might have become vulnerable to trafficking in the first place. While the judge observed that she came from a poor family it was a material consideration in assessing whether there was a real risk of her being forced back into a situation of exploitation due to economic hardship. The evidence indicated that members of her family were instrumental in finding her the job and encouraging her to remain in the situation of exploitation even after she expressed a desire to leave. The appellant s past experience of trafficking was material to the assessment of whether she would be at risk on return (paragraph 339K immigration rules). 7. For these reasons I conclude that the First-tier Tribunal decision involved the making of an error on a point of law. I set aside the decision. DIRECTIONS 8. At the hearing it was agreed that if an error of law were found that the remaking of the decision could be done by way of further written submissions. The focus of any remaking would be to consider the background and other evidence before the tribunal relating to risk on return. As such the following directions are made: 9. The appellant is to serve any further written submissions and supporting evidence by Friday 06 May 2016 at the latest. 10. The respondent is to serve any further written submissions by Friday 20 May 2016 at the latest. 11. If no further submissions are received the tribunal will proceed to decide the appeal. 12. Both parties are at liberty to apply. 10

11 DECISION The First-tier Tribunal decision involved the making of an error on a point of law I set aside and will remake the decision subject to further submissions Signed Date 21 April 2016 Upper Tribunal Judge Canavan 11