ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
THE IMMIGRATION APPEAL TRIBUNAL
APPEAL NO: AA/01314/2005
 UKAIT 00046
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CARNWATH
LORD JUSTICE THOMAS
| PO (Nigeria)
|- and -
|Secretary of State for the Home Department
Miss Susan Chan (instructed by Treasury Solicitors) for the Respondent
Hearing date : 12 January 2011
Crown Copyright ©
Lord Justice Maurice Kay :
"5. It is further agreed that the issues of
(a) whether or not the appellant would be exposed to a real risk of persecution from her former trafficker in her home town; and
(b) whether the appellant was a member of a 'social group'
had been determined in the appellant's favour by the first Immigration Judge and were not matters which fell to be reconsidered at the second stage.
6. The parties are therefore agreed that the matters for redetermination on remittal should consist of
(a) whether or not the Nigerian authorities could offer a sufficiency of protection to the appellant, whether in her home town or elsewhere in Nigeria;
(b) whether internal relocation would be unduly harsh;
(c) whether the appellant's claim under Article 8 and/or 3 should succeed
7. It is further agreed that the AIT's findings at paragraph 12.1 and 12.2 of the first Determination should stand "
"(a) I find the appellant is a woman of 26, of basic education and no qualifications. She gave me the impression of being meek, vulnerable and generally unable to cope with the harsh situation in which she finds herself and possibly, too, with situations less harsh;
(b) the appellant has no family at all in Nigeria
(c) the appellant came willingly to the UK in total ignorance of the true purpose of her journey arranged by Mr Osagie but rather expecting to secure mainline employment to improve her life and that of Aunt Becky then still living
(e) that the man who so efficiently arranged the appellant's trafficking is a professional violent criminal with a power base in Nigeria and probably in the UK and with easy ingress to and egress from the UK however arranged ...."
Paragraph 12.2 also incorporated at (e) part of the report of Ms Bisi Olateru-Olagbegi, an expert witness relied upon by the appellant, to which I shall return later.
The Determination of the AIT
The present position and the grounds of appeal
"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."
Ground 1: the guidance on shelters
"There are medical and counselling facilities available in the shelters from trained social workers and nurses who are clearly very familiar with dealing with the victims of trafficking suffering from post-traumatic stress disorder. We believe that in the event that the appellant or her baby should require any medical facilities, these will be provided, either by the medical doctor on call at the shelter or by her being transferred to the nearest hospital.
On her return to Nigeria, the appellant could, if she wished, be met at the airport and be taken to a NAPTIP shelter where she will be proved with the care and protection she needs, together with medical facilities and counselling suitable for her and her baby The evidence clearly shows that she will be permitted to remain in the shelter for as long as is necessary to secure her protection and that facilities are in place to offer her training to enable her to earn a living "
"NAPTIP lacks facilities for mental-health counselling which is much-needed by the returnee victims and which has greatly affected their results in the reintegration of victims."
She and others differed in their accounts of how long a woman could stay in a shelter.
"2.2.16 Although NAPTIP offers counselling and provides some medical services for deportees in their shelters the level of expertise and personnel for counselling or therapy for victims is still very low if not non-existent in these shelters."
It is a lengthy document and I refer only to the minimum amount necessary to deal with this ground of appeal.
"Would a returning victim with a young baby be admitted to a NAPTIP centre? I should add that it has been suggested that NAPTIP would not admit such a victim as NAPTIP centres do not have adequate relevant facilities. Please comment.
Would a returning victim of trafficking with a baby be met at an airport?
Do NAPTIP centres have counselling and/or medical facilities for victims who suffer from post-traumatic stress disorder?"
"(i) Yes, a returning victim with a young baby will be admitted to a NAPTIP shelter without delay. It is erroneous to suggest that the Agency would not admit such a victim in her shelters presently the Agency also works in collaboration with the Federal Ministry of Women Affairs if the need for temporary fostering arises.
(ii) Yes, a returning victim of trafficking with a baby will be met at the Airport. The Agency has been receiving victims from Airports if it is necessary.
(iii) Yes, NAPTIP shelters have resident Nurses and Clinics and work in collaboration with both private and public Hospitals. We also have a Medical Doctor on call at all the shelters.
(iv) Yes, NAPTIP shelters have social workers and Nurses who have undergone series of training in areas of psychosocial and psychotherapy and are ready to counsel and treat any victim who is suffering with post-traumatic stress disorder."
"In reaching findings on the care services that were likely to be provided to the appellant in the NAPTIP shelters, the [AIT] erred in law in that (1) it preferred without rational justification email 'evidence', which was obtained during the hearing and which was unverified by a statement of truth or expertise and contested by cross-examination to the oral and written testimony of the appellant's expert witness and the objective country evidence. This was a conclusion to which no Tribunal could rationally have come; and (2) it found that the appellant was likely to receive rehabilitation services and training in those shelters. This too was a conclusion to which no Tribunal could rationally have come."
Although the appeal is therefore put on irrationality grounds, it seems to me that, if made out, it could also be put on the basis of procedural unfairness, at least in relation to the email. Either way, I do not accept Miss Chan's submission that it is an appeal simply on facts but dressed up as points of law.
"as a campaigner, we believe her evidence was not as objectively based as it might otherwise have been."
and that, on this issue, it found her evidence to be "at odds with the weight of the background evidence before us" (paragraph 179). However, it does not necessarily follow that, because her evidence on one or more issues was considered to lack objectivity and was rationally discounted, the same applied to her evidence on other issues. Indeed, the AIT did not say that she was totally unreliable. It accepted that she is "expert in issues of human trafficking in Nigeria" (paragraph 166) and her evidence was found to be "very helpful" (paragraph 172) on one matter which is not the subject of this appeal. Moreover, she was accepted in the Danish report as an important contributor of source material.
"while Nigeria assisted an increased number of victims, the quality of care provided was compromised by inadequate funding to shelters."
"often lack specialised training in trafficking-related trauma."
"I find it disturbing that a document as bland and jejeune as the letter which was relied upon by the Home Office when deciding something as important as the safe return of a child to another country. The letter is plainly a recital of a formal answer obtained from the Vietnamese authorities."
Ground 2: the "gang" point
"197. In considering whether or not this appellant is likely to face reprisals from her trafficker, it is important to bear in mind that the appellant was not trafficked by members of a gang. There is no evidence that Mr Osagie was himself a member of a gang in Nigeria, or that he employed gang members when the appellant was duped into travelling to the United Kingdom. Indeed, there is no evidence that Mr Osagie was involved with any third party in Nigeria; his only associates 'Mark' and 'Philip' appear to have been employed only in the United Kingdom. The appellant travelled willingly to the United Kingdom in total ignorance of the true purpose of her journey arranged by Mr Osagie. This is not, therefore, a situation where the appellant is at risk from unidentified members of a trafficking gang as opposed to identified gang members
199. There is no evidence that Mr Osagie has any other associates [apart from 'Mark' and 'Philip'].
200. It has been suggested that were [the appellant] to be returned to Benin she would be at risk from Mr Osagie and his 'network'. We do not accept that."
"192 .It must always be remembered that within Nigeria there are gangs of people traffickers operating who generate enormous sums of money from their activities. The evidence seems to us to be clear that where a victim escapes the clutches of her trafficker before reaching the target earnings, then the traffickers are very likely to go to extreme lengths in order to locate the victim or members of the victim's family to seek reprisals.
In the absence of evidence that a trafficked victim has been trafficked by an individual, it should be borne in mind that it is likely that the trafficking will have been carried out by a collection of individuals, many of whom may not have had personal contact with the victim."
There followed an illustrative account of how different members of a gang may carry out different tasks in their nefarious enterprise but that they may each have a contingent interest in the target earnings and an incentive to seek reprisals if it is not forthcoming.
"The Tribunal 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."
"There is in general no real risk of a trafficking victim being retrafficked on return to Nigeria unless it is established that those responsible for the victim's initial trafficking formed part of a gang whose members were to share in the victim's earnings or a proportion of the victim's target earnings in circumstances where the victim fails to earn those target earnings. It is essential that the circumstances surrounding the victim's initial trafficking are carefully examined."
"There is no evidence that Mr Osagie was himself a member of a gang in Nigeria "
"the man who so efficiently arranged the appellant' trafficking is a professional violent criminal with a power base in Nigeria and probably in the UK."
The preserved findings also included a passage from the report of Miss Olateru-Olagbegi to the effect that Nigerian traffickers
"especially for international trafficking, usually move with syndicated gangs with different categories of criminal players."
This was and remains uncontradicted.
Lord Justice Carnwath:
"The Tribunal anticipates that the appeal may be used to give country guidance on risk of trafficking/re-trafficking in Nigeria."
We have also been shown Miss Chandran's skeleton argument (dated 28th September 2008) which indicates her understanding that the case had been set down to give Country Guidance on "human trafficking in Nigeria, sufficiency of protection and internal relocation". Inevitably the focus of the evidence and submissions may change or develop during the course of the hearing. Indeed a case may emerge as a suitable case for country guidance only during the proceedings. However, for the purposes of the Practice Direction it is important that at least by the stage of the final determination there is clarity as to the precise scope of the issue on which formal country guidance is being given.
Lord Justice Thomas:
Ability and Willingness of the Nigerian Authorities to offer Protection to Victims of Trafficking
(a) The Danish Information Service Report: The Protection of Victims of Trafficking in Nigeria: a Fact Finding Mission to Lagos, Benin City and Abuja, 9/26 September 2007 (April 2008) points out that the government of Nigeria have recognised the problem of traffickers and, since 2003, the legal and institutional foundation for combating trafficking and, equally important, support for victims of trafficking, have been in place in Nigeria.
(b) The National Agency for the Prohibition of Traffic in Persons and other related matters (NAPTIP) is the principal organisation created by the Nigerian government to combat trafficking. The Trafficking in Persons (Prohibition) Law Enforcement Administration Act, 2003 established NAPTIP and was enacted as a direct result of Nigeria wishing to fulfil its international obligations under the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.
(c) NAPTIP's own Legal and Prosecution Department were said in the April 2008 report, to have concluded six cases and another five were said to be pending. 58 victims of trafficking have been rehabilitated, while another 24 were waiting rehabilitation. We accept that with more funds, NAPTIP could do more to help victims, but the same could be said of any government agency with a finite budget.
(d) The US State Department Report suggests that whilst Nigeria is not complying with minimum standards, it is "making significant efforts" to do so and has "demonstrated a solid commitment to eradicating trafficking". It also spoke of NAPTIP making solid efforts to investigate and prosecute trafficking cases, although the numbers of convicted traffickers remained low. There are clearly several reasons for that, but not, on the evidence before us, any lack of governmental effort or desire.
Risk to Victims of Trafficking in being Re-trafficked on Return to Nigeria
(a) A very careful examination of the circumstances in which the victim was first trafficked must be undertaken and careful findings made. If a victim has been told that she is required to earn a particular sum of money ("target earnings") for the trafficker or gang, before being free of any obligation to the trafficker or gang, then, if the victim should escape before earning the target sums, there may well be a risk to the victim that on return to Nigeria she may be re-trafficked if found. The extent of the risk of the trafficking will very much depend on the circumstances in which the victim was originally trafficked.
(b) It must always be remembered that within Nigeria there are gangs of people traffickers operating who generate enormous sums of money from their activities. The evidence seems to us to be clear that where a victim escapes the clutches of her traffickers before earning the target earnings, then the traffickers are very likely to go to extreme lengths in order to locate the victim or members of the victim's family, to seek reprisals.
(c) In the absence of evidence that a trafficked victim has been trafficked by an individual, it should be borne in mind that it is likely that the trafficking will have been carried out by a collection of individuals, many of whom may not have had personal contact with the victim. Within trafficking gangs, individual members perform different roles. One might, for example, be a photographer who takes the photograph which is used within the victim's passport, whether or not the passport is a genuine one. One gang member may, for example, be a forger who is involved in the preparation of false passports or other documents for use by the victim; one might be a corrupt police official, or a border guard, whose role is to assist in facilitating the victim's passage in some way. Gang members may perform any number of different roles but it is essential to bear in mind that if a victim has been trafficked by a gang of traffickers, as opposed to a single trafficker, then the risk of re-trafficking may be greater for someone who escapes before earning the target earnings set by the trafficker, because the individual gang members will have expected to receive a share of the target sum and will, therefore, be anxious to ensure that they do receive that share or seek retribution if they do not.