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Cite as: [2003] ScotCS 322

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Shimkova, Re Application for Judicial Review [2003] Scot (23 December 2003)

OUTER HOUSE, COURT OF SESSION

OPINION OF LADY PATON

in the petition of

OLGA SHIMKOVA

Petitioner;

for

judicial review of a decision of an Immigration Appeal Adjudicator and a decision of the Home Department communicated by letter dated 13.6.2002

________________

Petitioner: Melvin Farr, Advocate; Drummond Miller W.S.

Respondent: Webster, Advocate; Advocate General's Office

23 December 2003

Whether asylum-seeker a member of a particular social group
[1] The petitioner is a citizen of the Ukraine. She was born on 25 December 1981. The respondent is the Secretary of State for the Home Department.

[2] On 3 May 2002 the petitioner entered the United Kingdom illegally, hidden in the back of a lorry. She applied for asylum in terms of the Geneva convention, on the basis that she had a well-founded fear of persecution in the Ukraine. In her Statement of Evidence dated 27 May 2002, in answer to the question "Please explain why you are applying for asylum in the UK, describing any specific events which have happened to you, and, where possible, giving the date or dates on which each event occurred", the petitioner responded:

"I suffered persecution from my boyfriend as I refused to sell myself for him. I was beaten up by him severely and when I could not receive help from the police, I decided to leave the country."

[3] Later in her statement she gave further details as follows:

"My boyfriend forced me to earn money for him immorally. On my refusal I was beaten up by him and his friends. Lastly, I was beaten up by him and his friends in front of a disco, whilst I was waiting for my friend to come out. My friend saw them but later on she refused to witness as she received threatening calls. My boyfriend harassed me and said if I would not listen to him he would put me in trouble. He once again beat me up. I then left my house and went to live with my friend whom my boyfriend did not know. I then found out that my boyfriend has registered a case of adultery for me and police is looking for me. After this incident I decided to leave."

[4] In a decision letter issued on behalf of the respondent dated 13 June 2002, the petitioner's application for asylum was refused. The petitioner's Statement of Evidence was referred to, and the following observations made:

"7... the Secretary of State considers that the reason you have given for claiming a well founded fear of persecution under the terms of the 1951 United Nations Convention relating to the Status of Refugees is not one that engages the United Kingdom's obligations under the convention. Your claim is not based on a fear of persecution in Ukraine because of race, religion, nationality, membership of a particular social group or political opinion.

8. You claim that you fear persecution from your boyfriend and his colleagues in Ukraine, however, the Secretary of State would point out that, in general, he takes the view that such individuals cannot be regarded as "agents of persecution" within the terms of the 1951 United Nations Convention relating to the Status of Refugees. In order to bring yourself within the terms of the convention, you would have to show that the alleged incidents against you were not simply the random actions of individuals but were a sustained pattern or campaign of persecution directed at you which was controlled, sanctioned or condoned by the authorities, or that the authorities were unable, or unwilling to offer you effective protection. In the opinion of the Secretary of State, this has not been established in your case. He considers that you could and should have attempted to seek redress through the proper authorities before seeking international protection ..."

[5] The petitioner appealed. As part of her appeal, she lodged a precognition dated 24 September 2002, responding to the decision letter of 13 June 2002. In relation to paragraph 8 of the decision letter, she commented:

"It is not true that I did not approach the state authorities looking for protection against attack and harm. Twice I raised the issue with the militia (police) and twice they said that they would not proceed against my boyfriend because there was no proof that the alleged [incident] took place. I was refused help firstly on 13 November 2001 and the second time on 4 February 2002. The perpetrators were not to be found therefore there was no possible way to secure a prosecution.

Because the militia could not prosecute for me I went to the Regional Administration of Justice. When I got a response from them it was just that I could go to the higher authorities. I then wrote to the High Council of Justice of the Ukraine. There I was told it could [not] possibly consider all applications from all citizens and check if the facts as stated were real.

I had a lawyer. He said it would be pointless to deal with my problem so I started to deal with it myself. I was a member of a Human Rights Organisation that gave me the capacity to deal with state authorities ... I wrote to the Supreme Soviet or Council of the Ukraine. They said that my case was not liable to be looked at. They told me to approach the relevant law protection agencies. After that I wrote to the procurator general and the president of the Ukraine. Their responses were equally indifferent ..."

[6] In relation to another paragraph of the decision letter (paragraph 9), the petitioner stated:

"... My [boyfriend] was a lawyer but he was involved in prostitution he was a pimp. I met him in June 2001. At first I did not know about his business until he started proposing that I prostituted myself. I lived with this man until the end of July 2001. I left 1 December 2001. I managed to avoid being prostituted however my boyfriend started seriously harassing me from October 2001. I believed that he worked in a number of areas in the Ukraine gathering girls to work in the capital. I don't believe that there was an establishment in our town. He was Russian having come to our town about ten years ago ..."

[7] The petitioner's appeal was heard in Glasgow on 23 October 2002 before John G Macdonald, adjudicator. The petitioner was represented by M Khan, solicitor, and the respondent by P Laverty.

[8] The petitioner gave evidence at the hearing. The adjudicator noted her evidence. In particular, in his determination promulgated on 19 November 2002, he noted her evidence as follows:

"20. She had never told the police that her husband had wanted her to prostitute herself. She had only told them that he had beaten her up. She had been terrified to tell them the truth. Her boyfriend had told her that her family would suffer if she said anything to the police. Her father was dead and her family consisted of her mother and brother and there was nobody to protect them.

21. She did not think it would have made any difference if she had told the police about her boyfriend wanting to force her into prostitution ...

29. She confirmed that she did not tell the police about the prostitution issue and had only told them that her boyfriend had beaten her up ...

33. She had not told members of her family about what had happened. It was suggested to her that the police in Kiev might have treated her better and she said that they might have helped her if she had told them about the prostitution ...

38. In re-examination she said that her boyfriend had lots of friends who visited him from countries such as Germany. She was sure that his business was selling girls because she had heard him talking about it ..."

[9] The adjudicator noted the submissions for the petitioner as follows:

"47. For the appellant it was said that she was a member of a particular social group following the case of Dzhygun appeal number 00TH00728 ... the tribunal found that the appellant in that case was a member of a particular social group defined as "Women Trafficked from the Ukraine to other Countries for Sexual Exploitation and Detained under a Threat of Violence".

48. The state was unwilling and unable to offer protection.

49. With reference to the country report under paragraph 5.15 the law prohibited trafficking on persons but trafficking on women and girls was a significant problem. Efforts to deal with the problem were hampered by a number of factors as outlined in paragraph 5.17.

50. The documentation in the appellant's bundle confirmed the risk of trafficking. In particular I was referred to the International Helsinki Federation for Human Rights Annual Report dated 2002.

51. This appellant would continue to be at risk.

52. I was asked to allow the appeal under the 1951 convention and also under Article 3 of the ECHR."

[10] The adjudicator ultimately refused the appeal. He stated inter alia:

"53. I have no difficulty in accepting the appellant as a credible and reliable witness. Her account is internally consistent. It is also consistent with the objective evidence.

54. I do not consider that I need to rehearse the objective evidence but it is very clear as mentioned in the CIPU report that trafficking in women is a significant problem. Ukraine is a major country of origin and transit country for women and girls trafficked abroad for sexual exploitation.

55. I note in the report "Trafficking in Women: Moldova and Ukraine" that on page 9 senior police officials in Ukraine reported that there are multiple international organised rings involved in trafficking cases.

56. I am accepting that this appellant was put under pressure by her boyfriend to become a prostitute and that because she declined to do that, he assaulted her. That is the complaint which the appellant took to the police and the other authorities.

57. She made no mention to the police of the fact that her boyfriend was trying to compel her to a life of prostitution. I note on page 6 of the appellant's statement that she says "My brother was a lawyer but he was involved in prostitution he was a pimp". Although not corrected at the hearing I consider ... that the word "brother" is a typographical error for her boyfriend.

58. This appellant has not engaged in the activities of a prostitute. The attitude of the authorities to her appears to be that they could not bring a case against her boyfriend because there was a lack of evidence. The appellant confirms that there was a lack of evidence in that the first assault was not witnessed and in the second assault the witness was not prepared to testify.

59. The appellant was quite open that she considered that ... she would have received better treatment from the police in Kiev had she sought protection there.

60. In my view this case falls to be distinguished on its facts to the tribunal case of Dzhygun where the appellant there had been attracted to work abroad and once in Budapest had been taken to a flat where she had been raped, sexually assaulted and then forced to work as a prostitute for two months.

61. The difference is that this appellant was not encouraged to work abroad. She has not been a victim of trafficking. She has not acted as a prostitute.

62. With those differences in mind it does not seem to me that this appellant can form a part of a particular social group similar to the appellant in Dzhygun or to any other particular social group.

63. The only complaint to the police is that she was assaulted by her boyfriend and the police were not able to bring charges against the boyfriend because of lack of evidence. That does not seem to me to fall within the convention ..."

Submissions for the petitioner
[11] Mr Melvin Farr, counsel for the petitioner, invited the court to sustain the petitioner's first plea-in-law, to declare that the adjudicator had erred in law, and to reduce the adjudicator's determination promulgated on 19 November 2002. The central issue was whether the petitioner was part of a particular social group of women being trafficked from the Ukraine. In paragraph 53 of his determination, the adjudicator expressly recorded that he found the petitioner credible and reliable. He had not qualified that finding of credibility and reliability, and accordingly he should have accepted the whole of her evidence. Paragraph 55 of the determination, together with the report "Trafficking in Women: Moldova and Ukraine" (pages 9 and 16 in particular), demonstrated that the adjudicator also accepted that there was a practice of trafficking women in the Ukraine.

[12] Bearing in mind the evidence accepted, the adjudicator had erred in distinguishing the case of Dzhygun, cit. sup. It was not necessary that the petitioner should have been driven into actual prostitution. The fear of being forced into prostitution was enough. The adjudicator had heard the petitioner's evidence and read her precognition. It could be inferred from the petitioner's precognition that she had told the police about being compelled into prostitution. The adjudicator had misconstrued or misunderstood the evidence. Having given the petitioner a badge of credibility in paragraph 53 of his determination, the adjudicator erred in concluding that the petitioner did not fall within the social group of women being trafficked from the Ukraine. Guidance about membership of a particular social group could be found in R. v. Immigration Appeal Tribunal, ex parte Shah [1999] 2 A.C. 627, particularly in the opinions of Lord Hoffmann and Lord Hope. The standard of proof was as set out in R. v. Secretary of State for the Home Department, ex parte Sivakumaran [1988] 1 A.C. 958. Numbers 7/6 and 7/7 of process were reports about trafficking from the Ukraine, upon which the adjudicator was entitled to rely. A fear of being trafficked was sufficient for the purposes of the Geneva convention.

[13] Counsel accepted that trafficking involved taking a woman to a country other than her own and forcing her into prostitution. Being forced into prostitution within one's own country did not amount to trafficking. Counsel submitted that the petitioner was in fear of being trafficked. The adjudicator had erred in that he appeared not to have taken into account the guidance in Shah, cit. sup. He had wrongly distinguished Dzhygun, cit. sup., as it was not necessary for the petitioner actually to have become a prostitute. Following R v Secretary of State for the Home Department, ex parte Bugdaycay [1987] 1 AC 514, Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449, [2000] INLR 122, and Nasim Sittar, 2001 S.C.C.R. 748, the adjudicator should have taken all the evidence into account. But the adjudicator appeared to have accepted only parts of what the petitioner had said, and had failed to indicate which parts of her statement he definitely did not believe. He had accordingly erred by taking into account matters which he should have left out of account, and by leaving out of account matters which he should have taken into account. As a result his decision was irrational and unreasonable in the Wednesbury sense. The petitioner's first plea-in-law should be sustained, and the matter remitted to the Immigration Appeal Tribunal.

Submissions for the respondent
[14] Mr Webster, counsel for the respondent, drew attention to paragraphs 12, 20, and 29 of the adjudicator's determination. In paragraph 12, the petitioner was noted to have "adopted her statement as her evidence-in-chief". In paragraph 20, the adjudicator noted that the petitioner "had never told the police that her husband had wanted her to prostitute herself. She had only told them that he had beaten her up. She had been terrified to tell them the truth ...". In paragraph 29, the adjudicator recorded that the petitioner "confirmed that she did not tell the police about the prostitution issue and had only told them that her boyfriend had beaten her up". It was quite clear therefore, from the petitioner's own evidence before the adjudicator, that she had not told the police that her boyfriend was trying to force her into prostitution.

[15] The criticism made of the adjudicator was that he had erred in finding that the petitioner was not part of a particular group, namely women being trafficked from the Ukraine to other countries for sexual exploitation and being detained abroad under threat of violence. That criticism was unfounded, for the reason that the petitioner's evidence contained no reference, express or implied, to the petitioner having been trafficked from the Ukraine, or being in fear of being trafficked from the Ukraine. Having accepted the petitioner as wholly credible, the only question was whether her evidence showed that she fell within the social group of women trafficked from the Ukraine. That was the social group for which the petitioner and her legal advisers had contended (not any other social group, for example women forced into prostitution within the Ukraine, which, if the appropriate evidence and submissions had been before the decision-maker, might conceivably be regarded as forming a social group facing persecution in terms of the Geneva convention: cf. dicta in Dzhygun, cit. sup.). In none of the documents submitted on behalf of the petitioner, nor in the petitioner's own evidence to the adjudicator, was there any hint that the petitioner was in fear of being trafficked. Yet the submissions made to the adjudicator focused on a particular social group, namely women being trafficked, or at risk of being trafficked, from the Ukraine. It had not been suggested to the adjudicator that the petitioner was a member of any other relevant social group. The reports relied upon related to the trafficking of women and girls from the Ukraine. The authorities to which the adjudicator's attention was drawn related to the trafficking of women from their own country to another country for sexual exploitation.

[16] In the circumstances, bearing in mind the lack of evidence suggesting that the petitioner had been trafficked or was at risk of being trafficked, the adjudicator's decision could not be criticised. The respondent's first, third, and fourth pleas-in-law should be sustained, and the orders sought in paragraph 3 of the petition should be refused.

Opinion
[17] Counsel were agreed that the concept of trafficking women from the Ukraine involves taking Ukrainian women from the Ukraine to a foreign country for the purpose of sexual exploitation, and detaining them abroad under threat of violence. One crucial element of trafficking is accordingly the removal of the women from their own country to a foreign country.

[18] The petitioner and her advisers presented her application for asylum on the basis that she was a member of that social group, namely women being trafficked from the Ukraine to a foreign country for the purpose of sexual exploitation. The petitioner had legal representation at the hearing before the adjudicator, and her application was presented on the basis that she was part of that social group in that she was at risk of, or in fear of, being trafficked from the Ukraine to a foreign country for the purpose of sexual exploitation.

[19] The difficulty for the petitioner is that there was no suggestion at any stage of her application for asylum that she was in fact in fear of being removed from the Ukraine to a foreign country for the purpose of sexual exploitation. The adjudicator found the petitioner wholly credible: but, having accepted her entire evidence, he was unable to conclude, on the basis of that evidence together with the relevant productions and the submissions made to him, that the petitioner was, or had been, a member of a social group of women either being trafficked or at risk of being trafficked from the Ukraine for sexual exploitation.

[20] Bearing in mind the evidence before the adjudicator, and the social group of which it was contended that the petitioner was a member, I am unable to accept that the adjudicator erred in reaching the conclusion he did, or that his decision was irrational or Wednesbury unreasonable. On the contrary, accepting (as the adjudicator did) everything which the petitioner said, his decision fell well within the range of decisions open to a reasonable decision-maker in the circumstances.

Conclusion
[21] For the reasons given above, I shall repel the petitioner's first plea-in-law, sustain the respondent's first, third and fourth pleas-in-law, and refuse the orders sought in paragraph 3 of the petition. I reserve all questions of expenses to enable parties to address me on that matter.