European Court of Human Rights
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URL: http://www.bailii.org/eu/cases/ECHR/2011/1314.html
Cite as: [2011] ECHR 1314
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FOURTH SECTION
Application no. 20658/11
and 21413/11
by F.A.
against the United
Kingdom
and Y.K.
against the
United Kingdom
lodged on 31 March 2011 and 4 April 2011
STATEMENT OF FACTS
THE FACTS
The first applicant, F.A., is a Ghanaian national who was born in 1973 and lives in London. She is represented before the Court by Ms A. Stepnitz of the Poppy Project, a non-governmental organisation based in London. The second applicant, Y.K, is a Sierra Leonean national who was born in 1986 and lives in Bedfordshire. She is represented before the Court by Ms A. Gonzalez, a lawyer practising in London with Wilson Solicitors LLP.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. The first applicant
The first applicant entered the United Kingdom in 2003, travelling on her own passport and a visit visa, which was valid for six months. She did not come to the attention of the authorities again until 2008, when she applied for an EEA residence card as the spouse of a French national. She subsequently admitted that the documents submitted in support of this application were false and that she had entered into a marriage specifically in order to regularise her immigration status. The application was refused on 9 January 2009. The applicant was arrested on 28 October 2009 after presenting a false French passport and, on 13 November 2009, she was sentenced to eight months’ imprisonment. She was taken into immigration detention when her prison sentence expired on 27 February 2010 and on the same date directions were set for her removal on 13 March 2010. However, these were cancelled when she claimed asylum on 12 March 2010.
The basis of her asylum claim was that the agent who had brought her to the United Kingdom in 2003 had handed her over to a man and woman who kept her imprisoned in a house for the next several years and forced her to have sexual intercourse with many men. As a result, the applicant became HIV positive and pregnant. She escaped from the house after discovering that she was pregnant in 2007. She claimed that her parents in Ghana were then threatened by the agent and that her father died of a heart attack in 2008 after the agent had tried to force him into a car. She feared that she would be killed or re-trafficked by the agent and his cohorts if she returned to Ghana, and also feared that she would be stigmatised as an HIV-positive single mother who had been a prostitute.
Her asylum claim was refused on 28 August 2010. The Secretary of State for the Home Department found that the applicant’s failure to claim asylum until the day before her removal; her use of false documents and submission of a fraudulent application for a residence card in the past and her inconsistency, all detracted from her credibility. She had variously stated that her son was living with a friend in London and that she had sent him back to Ghana. She had given different dates for the death of her father. Her claims to have been trafficked and to fear her traffickers were unsubstantiated and, in the light of her generally poor credibility, her account was not believed.
The applicant’s appeal against the refusal of asylum was heard in the First Tier Tribunal (Immigration and Asylum Chamber) (“the Tribunal”) on 14 December 2010. The Immigration Judge expressed concern that, in the letter refusing the applicant’s asylum claim, the Secretary of State had appeared to reject the applicant’s claim to be a victim of trafficking. However, in another letter issued by a different official from the same Government department and dated May 2010, the Secretary of State expressly accepted that the applicant was a victim of trafficking. This letter was not produced at the hearing but it was accepted by both sides that it had been written. The Immigration Judge therefore accepted as the factual position that the applicant had been forced into prostitution in the United Kingdom until 2007 and that as a result she had borne a son who was currently living in Ghana. However, he did not accept the applicant’s claim that the applicant still feared her traffickers or that her family in Ghana had been targeted by them, given her failure to claim asylum until the last minute and the fact that she had sent her son back to live in her home area. Nor was he satisfied that the applicant had lived in the United Kingdom continuously since 2007 since documents submitted with her application for an EEA residence card had indicated that she had married a French national in Ghana in 2008. As a result, the applicant’s claim, apart from the facts that she had been a victim of trafficking and forced prostitution between 2003 and 2007 and that she had a son, was rejected as a fabrication, and the Immigration Judge found that there was no risk that she would again be tricked into prostitution, given her past experience. She might be subject to some stigma in Ghana but it would not amount to Article 3 ill-treatment and she would not be destitute, given that it was not accepted that her father was dead or that she had lost contact with her mother. It also appeared that she had siblings in Ghana. Her HIV status did not meet the high threshold of Article 3.
The applicant lodged an application on 31 March 2011 for judicial review of the decision to set directions for her removal on 1 April 2011; however, her application was refused on 1 April 2011. In the meantime, the applicant had sought interim measures from the Court on 30 March 2011 and, on 1 April 2011, the Acting President of the Chamber decided to apply Rule 39 of the Rules of Court and indicated to the Government of the United Kingdom that the applicant should not be removed until further notice.
2. The second applicant
The applicant applied for and was granted a six month visit visa in December 2007 and entered the United Kingdom in January 2008. Her visa expired on 9 August 2008 but the applicant did not come to the attention of the authorities until 5 November 2009 when she was arrested for shoplifting. She was referred to the immigration authorities due to her having overstayed her visa and she claimed to have been trafficked to the United Kingdom. She also claimed asylum.
The applicant stated that she had met a man in Sierra Leone who claimed to work for a charitable organisation and to be able to help her. He arranged for her visa but when she arrived in the United Kingdom, he forced her into prostitution. She eventually escaped with the assistance of one of the man’s friends, but was afraid to go to the authorities and so lived with the aunt of a friend. She feared that she would be re-trafficked if she were returned to Sierra Leone. She also claimed that she had been partly circumcised as a child and had been told that the procedure would be completed when she became twenty-four. She also claimed to have mental health problems as a result of her experiences.
The applicant was assessed as required by the United Kingdom’s obligations under the Council of Europe Convention on Action Against Trafficking in Human Beings (see International law, below) but, by letter dated 15 November 2010, was found not to have been a victim of trafficking. Her account was found to be vague and unsupported by evidence, and she had claimed on her visa application to be married with a child in Sierra Leone, but now claimed to be single. There was nothing to indicate that she had reported her situation to the police.
The applicant’s asylum claim was refused on 16 February 2011. Her claim to fear circumcision was not plausible as the background country evidence indicated that if girls were circumcised in Sierra Leone, it was done at a young age to prepare them for marriage. There was no mention of “part” circumcisions such as the applicant claimed to have suffered. Her claim to have been trafficked had already been rejected as incredible and her general credibility was undermined by the fact that she had entered the United Kingdom on a counterfeit passport. It was accepted that, if she had been a victim of trafficking, the Sierra Leonean authorities could not provide adequate protection against re-trafficking and it would be unreasonable to expect the applicant, as an uneducated single woman without family or support, to relocate and re-establish herself. However, since she was not believed, her asylum claim was rejected. It was accepted that she had attempted to self harm whilst in detention and claimed to have suicidal thoughts. However, this was not found to amount to unequivocal evidence that she would kill herself if removed to Sierra Leone.
The applicant appealed against the decision to refuse her asylum claim, and her appeal was heard by the Tribunal on 2 March 2011. The Immigration Judge found the applicant to be wholly inconsistent as to how she had obtained her passport and visa for the United Kingdom. It was implausible that she would not have sought assistance from the police or medical treatment after her escape. Her whole account was considered to be vague and lacking in detail and she had not provided any medical evidence to support her claim to have undergone partial circumcision or not to have borne a child. Nor was there any medical evidence of her alleged mental health problems. Based on the background evidence, there was no real risk of her, as an adult, being circumcised. The lateness of her claim for asylum undermined her credibility in general. The Immigration Judge found that she had not established that she faced a real risk from trafficking or from circumcision.
An application for permission to appeal to the Upper Tribunal was refused on 9 March 2011, on the basis that the Tribunal had reached cogent and sustainable findings.
The applicant then obtained new legal representatives, who made representations to the Secretary of State on her behalf on 30 March and 4 April 2011, enclosing a report from the Poppy Project, a non-governmental organisation which assists victims of trafficking, and a medical report. Concern was also expressed about the quality of the applicant’s previous legal representation. The Poppy Project report, dated 28 March 2011, stated that the applicant’s account of being recruited transported and held was consistent with that of many other trafficking victims and that her clearly traumatised state further supported her account. It also stated that it was common in women who had been sexually exploited to be too ashamed or frightened to seek help or to contact the authorities, and to find it difficult to give an account of their experiences, which sometimes rendered them disjointed or inconsistent.
The representations were rejected on 4 April 2011 as not amounting to a fresh asylum claim. The Secretary of State found that the applicant was attempting to restate a claim which had already been found to be incredible. Although the medical report stated that the applicant had undergone female genital mutilation and was unlikely to have given birth, it was not accepted that the fact that she had suffered female circumcision in the past meant that she would be at risk in the future. Moreover, the Immigration Judge had found that the applicant had been married in Sierra Leone, and the fact that she had not had a child did not refute this finding. The Poppy Project report did not address the factors which led to the previous adverse credibility findings made against the applicant, such as her failure to contact the authorities when she escaped from her captors. The applicant’s mental health was taken into account; however, it was not believed that she needed to remain in the United Kingdom for medical treatment or that her circumstances were exceptional. She was being monitored in detention.
An application for judicial review of the decision to refuse to treat the applicant’s further representations as a fresh claim was refused on 4 April 2011. On the same day, the applicant sought interim measures from this Court and on 5 April 2011, the Acting President of the Section decided to apply Rule 39 of the Rules of Court and indicated to the Government of the United Kingdom that the applicant should not be removed until further notice.
B. Relevant domestic and international law
1. Domestic law
(a) Asylum and human rights claims
Sections 82(1) and 84 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against an immigration decision made by the Secretary of State for the Home Department, inter alia, on the grounds that the decision is incompatible with the Convention. Appeals in asylum, immigration and nationality matters are heard by the First Tier Tribunal (Immigration and Asylum Chamber).
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 in so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. Section 6(1) of the same act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(b) Fresh asylum and human rights claims
Sections 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:
“353. When a human rights or asylum claim has been refused 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 SSHD [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. If representations are not accepted as amounting to a “fresh claim”, the applicant’s only recourse will be an application for judicial review of the decision.
(c) Trafficking offences
Section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 criminalises the trafficking of persons into, around or out of the United Kingdom. The offence of trafficking consists of arranging or facilitating the entry to, departure from or travel within the United Kingdom of a person, with the intention to exploit them or the belief that they are likely to be exploited by another. A person found guilty of an offence under Section 4 is liable to a prison term of up to fourteen years, a fine, or both.
2. 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 10 of that Convention provides that each Party shall adopt such legislation as is necessary to ensure the identification of trafficking victims, and staff its competent authorities with persons trained in the prevention and combating of trafficking and the identification and assistance of victims.
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.
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 15 provides that each Party shall ensure that victims have access to information on relevant judicial and administrative proceedings and shall provide in its internal law for the right to legal assistance and free legal aid for victims under the conditions provided by its internal law and for the right of victims to compensation from the perpetrators.
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.
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.
COMPLAINTS
The applicants complain that their removal to Ghana and Sierra Leone respectively would put them at risk of ill-treatment in breach of Article 3. They further complain that their removal from the United Kingdom would breach Article 4.
QUESTIONS TO THE PARTIES