FOURTH SECTION
Application no. 13950/12
O.G.O.
against the United Kingdom
lodged on 8 March 2012
STATEMENT OF FACTS
The applicant, Ms O.G.O, is a Nigerian national, who was born in 1988 and lives in London. She is represented before the Court by Mr A.Weiss of the AIRE Centre.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Events in Nigeria
The applicant’s mother left the family home when the applicant was approximately five years of age. Subsequently the applicant was looked after by her stepmother who ill-treated her by beating her and locking her into a room for hours without food and water.
When the applicant was approximately seven years of age, her stepmother gave her to another woman who forced her to work as a domestic servant, made her work on a farm and ill-treated her.
In approximately 2000, when the applicant was 11 years of age, she was given to another family in Lagos, Nigeria. She was allowed to go to school for the first time but was forced to do domestic labour without pay. She was ill-treated and beaten on occasion.
In approximately 2004, the same family arranged for the applicant to travel to the United Kingdom with them. The family arranged the applicant’s travel documents and promised her that she would be able to study in the United Kingdom.
2. Events after the applicant’s arrival in the United Kingdom
On arrival in the United Kingdom, the applicant was forced to work full‑time for the family in London as a domestic servant without pay. She was prohibited from leaving the home except in the course of her duties (for example shopping) and did not attend school. The family kept her identity and travel documents and regularly beat the applicant and threatened her that, if she left the home, she would be sent back to Nigeria.
In 2007, while performing her shopping duties, the applicant met a sympathetic woman. She eventually told this woman about her situation and the woman advised her to leave the family’s home. On an unknown date, the applicant left the family’s home and went to stay with this woman for several weeks. She then met, and moved in with, a partner. She fell pregnant and had two miscarriages. The applicant’s relationship with her partner deteriorated because of his controlling and abusive behaviour.
3. The applicant’s applications to regularise her immigration status in the United Kingdom
At some point in 2009, the applicant met someone who submitted an application for a residence permit on her behalf which was refused by the United Kingdom Border Agency on 28 January 2010. She claims to have little knowledge of that application.
On 21 April 2010, the applicant was encountered by officials at her home when her neighbours called the police to report a domestic incident at the couple’s home. The applicant was detained as an illegal entrant and lodged an asylum application on the same day. She claimed that she had been placed in a situation of domestic servitude at a very young age; had been trafficked to the United Kingdom; and had a fear of destitution and forced labour in Nigeria.
On 30 April 2010, she was referred to the United Kingdom’s National Referral Mechanism (“NRM”), the United Kingdom’s system for identifying victims of human trafficking (see below under domestic law and practice).
On 5 May 2010, the United Kingdom Border Agency, acting in their capacity as a “competent authority” (see below under domestic law and practice) under the NRM, found that there were reasonable grounds to believe that the applicant was a victim of human trafficking.
On 14 May 2010, the United Kingdom Border Agency refused her asylum application. Although mindful of the concerns expressed by UNICEF about child trafficking in Nigeria, it was concluded that, even if the applicant had been trafficked, that would not engage the United Kingdom’s obligations under the Refugee Convention. Furthermore, it was considered that there would be a sufficiency of protection available to her in Nigeria from the authorities there and she could internally relocate within Nigeria for safety.
On 5 July 2010, the First-tier Tribunal (Immigration and Asylum Chamber) dismissed her appeal considering that the applicant was not credible and that she had failed to demonstrate that she would be at any risk upon return to Nigeria. The applicant had not attended or been represented at the appeal hearing.
On 20 July 2010, the First-tier Tribunal refused her application for permission to appeal.
On 10 August 2010, the Upper Tribunal granted permission to appeal due to concerns that the applicant had not been properly notified of the appeal hearing. It ordered that a fresh hearing before the First-tier Tribunal take place.
On 29 November 2010, the First-tier Tribunal dismissed her appeal. The Immigration Judge did not accept that the applicant’s account was plausible or credible and did not believe that the applicant had been trafficked into the United Kingdom. Furthermore, it considered that the circumstances related by the applicant as regards her circumstances in the United Kingdom did not correlate with those of a person trafficked for the purposes of domestic servitude. In any event, it was considered that the applicant, who would be returning to Nigeria as an adult, could seek protection from the Nigerian authorities, who were taking steps to tackle the issue of trafficking. Finally, it was considered that any interference in her limited private life in the United Kingdom caused by her removal would be proportionate to the aim of the maintenance of immigration control.
On 17 November 2010 and 20 January 2011, the First-tier Tribunal and Upper Tribunal respectively refused her applications for permission to appeal.
On 16 March 2011, the United Kingdom Border Agency, acting again as the “competent authority” under the NRM made a “conclusive decision” (see below under domestic law and practice) that the applicant was not a potential victim of trafficking. The decision stated that:
“Although initially it appeared that there were reasonable grounds to believe that you may have been a victim of trafficking, subsequent information sought and provided to the competent authority has led to the conclusion that you cannot be identified as a victim of trafficking at this time.”
The United Kingdom Border Agency considered that being trafficked was not an issue that would engage the United Kingdom’s obligations under the Refugee Convention 1951 and noted the progress that Nigeria was making in reducing trafficking and providing protection for those at risk of future trafficking. It considered that, even if the applicant’s account was wholly credible, which it was not, there would be a sufficiency of protection from the Nigerian authorities available to her. The United Kingdom Border Agency also relied upon the findings of the First-tier Tribunal that the applicant’s circumstances did not correlate to the circumstances of someone who had been trafficked. It also noted that the relevant events had all happened when the applicant was a child and she was now an adult and was therefore no longer vulnerable. Furthermore, it considered that her credibility was undermined by, inter alia, her failure to seek protection from her father in Nigeria; the fact that her account was lacking in detail; and the fact that she had remained in the United Kingdom for six years before making an asylum claim and, even then, had only done so after she had been detained by the authorities.
Removal directions to Nigeria scheduled for 20 April 2011 were cancelled when the High Court granted an injunction due to concerns about the applicant’s risk of miscarriage.
Whilst the applicant was in immigration detention, she was referred, by a charity which supports immigration detainees, to the Poppy Project, a charitable organisation that provides support to women victims of human trafficking in the United Kingdom.
On 9 July 2011, the applicant had another miscarriage. She was released from detention and admitted to hospital for several days.
On 12 October 2011, the applicant submitted further representations to the United Kingdom Border Agency regarding her risk of destitution and ill-treatment on return to Nigeria. She relied upon a therapeutic report written by Jackie Chivers, dated 12 September 2011, which had been arranged by the Poppy Project. That report had concluded that the applicant had undergone various traumatic experiences and that she presented symptoms of post-traumatic stress disorder, depression and anxiety. The report also highlighted the need for the applicant to receive long-term therapy. At the request of the United Kingdom Border Agency, those representations were re-submitted to them on 20 January 2012.
On 20 February 2012, the United Kingdom Border Agency decided that those representations did not amount to a fresh asylum claim because the applicant’s claim had already been fully examined and rejected by the First-tier Tribunal, in a determination upheld by the Upper Tribunal.
On 7 March 2012, the applicant, with the help of the Poppy Project, informed the Metropolitan police that she believed that she had been trafficked into the United Kingdom.
In a letter dated 8 March 2012, a member of the Metropolitan police’s Human Exploitation and Organised Crime Unit wrote a letter informing the applicant’s representatives that he had had no communication with the United Kingdom Border Agency concerning their investigation into the applicant. He indicated that he wanted to interview the applicant in order to gain possible evidence by way of questioning or to discover any other lines of investigation. He explained that, in order for him to fully investigate the matter he needed more than the twelve hours given before the applicant would be removed to Nigeria. He also expressed concerns about the applicant being re-trafficked or otherwise subjected to ill-treatment upon return to Nigeria.
In a letter dated 8 December 2011 (but seemingly written in March 2012) the Poppy Project explained that, because the applicant had displayed indicators of being a victim of trafficking, they had carried out an assessment in September and October 2011. Following the assessment, they considered that the applicant’s experience of trafficking was consistent and credible and stated that a detailed report would be forthcoming. They noted that they had only just become privy to the United Kingdom Border Agency decision of 16 March 2011 and would be commenting on the issues raised in that decision in their full report. However, they raised the fact that they were concerned that there was no mention in the decision of the fact that the applicant had been trafficked into the United Kingdom as a child.
In a further letter dated 8 March 2012, the Poppy Project stated that they believed that the applicant had been trafficked as a child into domestic servitude and that she was still in need of further support around her experiences. They explained that the applicant had been referred to them by a charity based in the detention centre and that they had not been contacted by the United Kingdom Border Agency’s competent authority dealing with the case before they had taken any of their trafficking decisions. They requested that no further action be taken on her case until the Poppy Project had been able to finalise their report.
On 8 March 2012, the applicant’s representatives applied for judicial review at the High Court of the Secretary of State’s decision of 20 February 2012 that the applicant’s representations did not amount to a fresh claim and to maintain her decision that the applicant had not been trafficked into the United Kingdom as a child. That application remains pending.
On 8 March 2012, the Acting President applied Rule 39 to stop the applicant’s removal to Nigeria that evening.
On 9 March 2012, the Judge appointed as Rapporteur under Rule 49 § 2 of the Rules of Court decided that further information was required and asked the Government of the United Kingdom to respond to various factual questions in accordance with the provisions of Rule 49 § 3 of the Rules of Court. In a letter dated 3 April 2012, the Agent of the Government of the United Kingdom responded to those questions and informed the Court, inter alia, that the United Kingdom Border Agency had not given any consideration to the letters from the Metropolitan police or the Poppy Project (set out above) because they had been written after the conclusion decision regarding trafficking had been taken; that, in any event, those letters did not contain any new evidence; that the police investigation had commenced; and that when the completed reports from the police and the Poppy Project had been received, the United Kingdom Border Agency would review the trafficking decision.
B. Relevant domestic law and practice
1. Asylum and human rights claims
Section 82(1) of the Nationality, Immigration and Asylum Act 2002, provides a right of appeal against an immigration decision made by the Secretary of State for the Home Department.
Appeals in asylum, immigration and nationality matters are now heard by the First-tier Tribunal (Immigration and Asylum Chamber).
Section 11 of the Tribunals, Courts and Enforcement Act 2007 provides a right of appeal to the Upper Tribunal, with the permission of the First-tier Tribunal or the Upper Tribunal, on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision.
Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.
2. Fresh asylum and human rights claims
Section 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Paragraph 353 of the Immigration Rules provides as follows:
“When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”
As regards the scrutiny of fresh asylum claims and the power of the courts to review such scrutiny, the Court of Appeal in WM (DRC) v. Secretary of State for the Home Department [2006] EWCA Civ 1495 (paragraphs 10-11) has held:
“Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters. First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return ... The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State’s decision.”
Thus, an applicant making fresh representations must establish that they have a realistic prospect of success to establish a “fresh claim” which, even if then refused by the Home Office, will nonetheless generate a fresh right of appeal to be considered on the merits.
3. The United Kingdom identification process of potential victims of trafficking – the United Kingdom Border Agency’s Guidance for “Competent Authorities” (“the Guidance”) – undated
The above Guidance explains that the framework for identifying victims of trafficking in the United Kingdom is known as the National Referral Mechanism (“NRM”). The NRM was introduced in 2009 following the ratification and entry into force of the Council of Europe Convention on Action against Trafficking in Human Beings (see below). It is a victim identification and support process designed to make it easier for all the different agencies that could be involved in a trafficking case – the police, UKBA, local authorities and non-government organisations – to co-operate; to share information about potential victims and to facilitate their access to advice, accommodation and support.
The Guidance states, inter alia, that:
“A potential victim of trafficking is a potential victim of crime. Trafficking is a very serious crime, punishable by up to 14 years in prison. Wherever possible, allegations of trafficking should be passed to the police as soon as the information is known to UKBA.
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It is essential that the police are made aware of all child trafficking cases and it is the Competent Authority’s responsibility to ensure the police have been alerted.”
Under the NRM, where there are reasons to believe that a person may be a trafficking victim, organisations formally identified as “first responders”, which include, inter alia, local authorities, the police, the United Kingdom Border Agency, the Poppy Project and the Serious Organised Crime Agency, can refer the person to the designated “competent authorities”. The United Kingdom Border Agency and the United Kingdom Human Trafficking Centre are the two competent authorities for identifying victims of trafficking. The United Kingdom Border Agency is the competent authority linked to immigration and asylum cases.
Once the referral has been made, a two stage identification process takes place. First, the competent authority takes a “reasonable grounds” decision as to whether or not there are reasonable grounds to believe that the person is a potential victim of trafficking.
If the competent authority decides that the person is a potential victim of trafficking, it will proceed to the “conclusive decision” stage. The competent authority is expected to make a conclusive decision within a 45 day recover-and-reflection period granted to the potential victim. When assessing the case, the competent authority is expected to gather relevant information and to cooperate with other agencies, such as the police and support organisations. In that regard, the Guidance states, inter alia, that:
“During the 45 day reflection period the CA [competent authority] should carry out any evidence gathering and further enquiries required. The CA must consult with any relevant agencies, such as the police, children’s services, and the support provider, to reach a conclusive decision on whether the person has been trafficked.
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If the Competent Authority concludes that the person is not considered to be a victim of trafficking, before releasing the decision the CA must discuss the decision with interested parties such as the support provider, police, First Responder or Local Authority (in the case of children) to ensure that all information has been granted.
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Competent Authorities need to have all necessary information before making a negative decision. In cases where it’s likely that the person will be refused, an interview will need to be conducted, unless all of the relevant questions have been asked as part of the asylum process, or we’ve commissioned another frontline agency or the support provider to ask the questions on our behalf.”
There is no right of appeal against a decision that a person is not a victim of trafficking. Consequently, a finding that a person is not a victim of trafficking can only be challenged by judicial review.
C. Relevant international law
The Council of Europe Convention on Action against Trafficking in Human Beings, CETS No. 197, 16 May 2005 (“the Trafficking Convention”) was signed by the United Kingdom on 23 March 2007 and ratified on 17 December 2008. It entered into force in respect of the United Kingdom on 1 April 2009.
Article 4 of that Convention sets out the following definitions:
“a "Trafficking in human beings" shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
b The consent of a victim of “trafficking in human beings” to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;
c The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered "trafficking in human beings" even if this does not involve any of the means set forth in subparagraph (a) of this article;
d "Child" shall mean any person under eighteen years of age;
e “Victim” shall mean any natural person who is subject to trafficking in human beings as defined in this article.”
Article 10 provides that:
“1. Each Party shall provide its competent authorities with persons who are trained and qualified in preventing and combating trafficking in human beings, in identifying and helping victims, including children, and shall ensure that the different authorities collaborate with each other as well as with relevant support organisations, so that victims can be identified in a procedure duly taking into account the special situation of women and child victims and, in appropriate cases, issued with residence permits under the conditions provided for in Article 14 of the present Convention.
2. Each Party shall adopt such legislative or other measures as may be necessary to identify victims as appropriate in collaboration with other Parties and relevant support organisations. Each Party shall ensure that, if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence provided for in Article 18 of this Convention has been completed by the competent authorities and shall likewise ensure that that person receives the assistance provided for in Article 12, paragraphs 1 and 2.”
Article 12 provides that each Party shall adopt such legislative or other measures as may be necessary to assist victims in their physical, psychological and social recovery, taking due account of the victim’s safety and protection needs. Such assistance shall include at least, inter alia, counselling and information, in particular as regards their legal rights and the services available to them; and assistance to enable their rights and interests to be presented and considered at appropriate stages of criminal proceedings against offenders.
Article 13 provides that each Party shall provide in its internal law a recovery and reflection period of at least 30 days, when there are reasonable grounds to believe that the person concerned is a victim. During this period it shall not be possible to enforce any expulsion order against the victim.
Article 14 provides that each Party shall issue a renewable residence permit to victims if the competent authority considers that their stay is necessary owing to their personal situation or for the purpose of their co-operation with the competent authorities in investigation or criminal proceedings.
Article 16 provides that when a Party returns a victim to another State, such return shall be with due regard for 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 shall preferably be voluntary. It also provides that each Party shall adopt such legislative or other measures as may be necessary to establish repatriation programmes, aimed at avoiding re-victimisation, involving relevant national or international institutions and non governmental organisations.
Article 27 sets out duties in relation to investigations into or prosecution of trafficking offences. It also provides that each Party shall ensure to any group, foundation, association or non-governmental organisations which aim at fighting trafficking, the possibility to assist and/or support the victim with his or her consent during any criminal proceedings.
Article 28 provides that each Party shall adopt such legislative or other measures as may be necessary to provide effective and appropriate protection for victims and other groups from potential retaliation or intimidation in particular during and after investigation and prosecution of perpetrators.
D. Country evidence
1. United States Department of State, Trafficking in Persons Report 2011
This report states that Nigeria is a source, transit and destination country for women and children subjected to trafficking in persons, specifically conditions of forced labour and forced prostitution. It noted that trafficked Nigerian women and children are recruited from rural areas within the country’s borders – women and girls for involuntary domestic servitude and forced commercial sexual exploitation.
The report further set out that the Nigerian government had not demonstrated appreciable progress in its efforts to protect trafficking victims during the year, despite the government’s considerable resources and noted that the government did not have a formal procedure in place to repatriate and reintegrate Nigerian victims subjected to trafficking abroad.
2. UNICEF Information Sheet – Child Labour, Nigeria, 2006 – dated April 2007
The above factsheet sets out, inter alia, that:
“The trafficking of children for the purpose of domestic service, prostitution and other forms of exploitative labour is a widespread phenomenon in Nigeria. In view of the clandestine nature of trafficking, accurate and reliable figures are hard to get. Globally, child trafficking is one of the fastest growing organised crimes with an estimated 1.2 million victims per year, of which 32% are African.
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The FOS/ILO National Child Labour Survey (2003) estimates that there are 15 million children engaged in child labour in Nigeria with 40% of them at the risk of being trafficked both internally and externally for domestic and forced labour, prostitution, entertainment, pornography, armed conflict, and sometimes ritual killings. Nigeria is a source, transit and destination country for child trafficking. Currently, external trafficking of children exists between Nigeria and Gabon, Cameroon, Niger, Italy, Spain, Benin Republic and Saudi Arabia.”
COMPLAINTS
The applicant complains that her proposed expulsion to Nigeria will expose her to treatment contrary to Article 3 of the Convention both because of the conditions that she will face as a victim of trafficking without any protection and because she will be at real risk of ill-treatment from her traffickers and their affiliates.
The applicant further complains that her expulsion would breach Article 4 of the Convention both because it will expose her to a real risk of re-trafficking in Nigeria and because it will make it impossible for the British police to conduct an effective criminal investigation into her trafficking claims as required by the Trafficking Convention.
The applicant further complains that her expulsion would be a disproportionate interference with her rights to moral and physical integrity under Article 8 of the Convention given her vulnerability as a trafficking victim and ongoing mental health problems.
Finally, the applicant complains that the failure of the domestic authorities to identify her as a victim of trafficking deprived her of an effective remedy under Article 13 of the Convention taken with Articles 3, 4 and 8 of the Convention.
QUESTIONS TO THE PARTIES
1. Are there substantial grounds for believing that the applicant, if removed to Nigeria, would face inhuman or degrading treatment contrary to Article 3 of the Convention?
2. Would the applicant’s removal to Nigeria give rise to a breach of the Government of the United Kingdom’s positive obligations under Article 4 of the Convention?
In particular:
(i) Did the Government fulfil their positive obligations under Article 4 of the Convention to investigate the applicant’s complaints that she had been trafficked into the United Kingdom?
(ii) Would the applicant’s removal to Nigeria pending any police or other investigation into the applicant’s complaints that she had been trafficked prevent the Government from fulfilling their positive obligations under Article 4 of the Convention?
(iii) Would the applicant’s removal to Nigeria put her at risk of being re-trafficked contrary to Article 4 of the Convention?
3. Would the applicant’s removal to Nigeria give rise to any separate issues under Article 8 of the Convention?
4. Did the applicant have at her disposal an effective domestic remedy for her Convention complaints, as required by Article 13 of the Convention?
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