Asylum appeal finds young Vietnamese man a victim of trafficking for the purposes of forced labour

28 September 2015

In a recent asylum appeal Lucy Mair of Garden Court North Chambers represented a young Vietnamese man whose trafficking and asylum claims had been refused by the Home Office. Relying upon AS (Afghanistan) v Secretary of State for the Home Department [2013] EWCA Civ 1469 the applicant asked the tribunal to decide the trafficking for itself.

In a determination promulgated today the FTT accepted that there were reasonable grounds (RG) to believe that the appellant was a victim of trafficking (VOT) in the UK for the purposes of forced labour. The judge found that there were “obvious errors” in the reasonable grounds (RG) trafficking decision made by the Competent Authority referring to “The most obvious factor which was not taken into account” as the Appellant’s age. He was just 16 at the time he was trafficked to the UK and thus as a child VOT did not need to demonstrate the “means” which were used to traffic him.

Furthermore, the judge rejected the Competent Authority’s conclusion in the RG decision that the appellant was not a VOT because he had worked without “menace of any penalty” (which is the language used in the Forced Labour Convention of 1930, drafted by the International Labour Organization (ILO)). The appellant provided the FTT with a number of more recent definitions of forced labour from the ILO including that “Forced labour refers to situations in which persons are coerced to work through the use of violence or intimidation, or by more subtle means such as accumulated debt, retention of identity papers or threats of denunciation to immigration authorities.” In the instant case the appellant had been forced to work to pay off the purported debt of having brought him to the UK and the tribunal accepted that he therefore met the definition of forced labour.

Finally, the appellant relied upon the case of R (Hoang Anh Minh) v SSHD [2015] EWHC 1725 (Admin) to successfully convince the FTT that the Competent Authority had unlawfully applied too high a threshold at the RG stage. The judge in the instant case found that: “The correct guidance is the objective question ‘whether the evidence provides grounds upon which a reasonable observer could believe that this person is a trafficking victim, applying the low threshold of suspicion but not proof, and bearing in mind the non-exhaustive list in the Guidance of possible reasons for absence of detail or inconsistency.”

The judge concluded: “The Appellant is a victim of trafficking on the basis of the evidence that he has produced.”

This case represents another recent example of the FTT recognizing an appellant as a VOT where the Competent Authority had made a negative decision further to a similar case last week.

Lucy was instructed by Prolegis Solicitors.

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