AA (Iraq), R (on the application of) v Secretary of State for the Home Department [2012] EWCA Civ 23

[2012] EWCA Civ 23

Case No C4/2010/2823

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM MRS JUSTICE THIRLWALL

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 24 th January 2012

Before

LORD JUSTICE MAURICE KAY-VICE PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION

LORD JUSTICE LONGMORE

SIR DAVID KEENE

Between

THE QUEEN ON THE APPLICATION OF AA (IRAQ)Appellant

Ms Kathryn CRONIN and Ms Louise HOOPER (instructed by Hammersmith & Fulham Community Law Centre) for Appellant

Ms Julie ANDERSON (instructed by Treasury Solicitors) for Respondent

INTERVENER – Mr Shahram TAGHAVI - The AIRE Centre (Advice on Individual Rights in Europe) instructed by Bates Wells & Braithwaite London LLP

Hearing Hearing dates: 14 TH& 15 TH November 2011

Judgment

Sir David Keene:

[1]This case raises a number of issues. The first concerns the meaning and application of the 2005 Council of Europe Convention on Action against Trafficking in Human Beings (“the Trafficking Convention”). This was signed by the United Kingdom in March 2007 and ratified on 17 December 2008. So far there appears to have been little litigation about it in this jurisdiction. The appellant claims to be a victim of trafficking within the meaning of the Trafficking Convention. Somewhat more familiar issues that also arise concern the Home Secretary’s certification of the appellant’s asylum claim on “safe third country grounds”, with an accompanying decision to return her to Belgium in accordance with the Dublin II Regulation, and the certification that the appellant’s claim that her return to Belgium would breach her ECHR rights was clearly unfounded. Finally, it is contended that her return to Belgium would breach her rights under the Charter of Fundamental Rights of the European Union (“the Charter”).

[2]Originally, the appeal was brought from decisions of Thirlwall J. made on 26 November 2010, whereby she refused permission to seek judicial review of the decisions by the “Competent Authority” in the United Kingdom under the Trafficking Convention and by the Home Secretary in respect of the asylum and human rights claims. Thirlwall J’s decisions were made at an oral hearing on a renewed application for permission after refusal on the papers by Collins J. Permission was granted by this court to seek judicial review, with the judicial review proceedings to be retained in the Court of Appeal. I shall nonetheless refer to the claimant as the appellant.

[3]The decisions by Thirlwall J related to a number of decisions by the Competent Authority and the Home Secretary, but since that time further decisions have been made by way of reconsideration, and the permission granted to seek judicial review concerns the most recent decisions. Those are two in number. On 1 June 2011 the Home Secretary in a lengthy decision letter again pronounced herself satisfied that the appellant’s human rights claim was clearly unfounded and certified it under paragraph 5 (4) of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (“the 2004 Act”). In addition she declined to exercise her discretion so as to deal with the substance of the asylum claim in the United Kingdom as opposed to returning the appellant to Belgium under the Dublin II Regulation. The following day the Competent Authority for the purposes of the Trafficking Convention issued its decision that there were no reasonable grounds to believe that the appellant was a victim of trafficking to the United Kingdom. Those then are the two decisions at the heart of these judicial review proceedings.

[4]The AIRE Centre was given permission at a hearing on 26 July 2011 to intervene in these proceedings, and brief submissions have been made on its behalf by Mr Taghavi. In the course of the hearing he sought permission to enlarge the scope of the intervention so as to contend that judicial review does not provide an adequate remedy within the terms of Article 47 of the Charter where section 92 of the Nationality, Immigration and Asylum Act 2002 applies so as to limit any in-country right of appeal against an immigration decision in a case where Charter rights are allegedly infringed. It was also sought to argue that section 92 might be incompatible with European Union law. For reasons given at the time, the court refused to grant permission so as to extend the scope of the issues under consideration.

The Factual Background

[5]The appellant is an Iraqi Kurdish woman now aged 21. She seems to have arrived in the United Kingdom clandestinely in or around early May 2009. Certainly she claimed asylum here on 12 May 2009.

[6]She had earlier arrived in Belgium, where she claimed asylum on 9 October 2007. She gave the Belgian authorities a name different from the one she later used in the United Kingdom and told them that she was from Baghdad. That is now admitted to have been false. She also pretended that she was an adult and that her adult brother, who was with her, was a minor. She and her brother were placed in an accommodation centre in Antwerp.

[7]Not all of her account of subsequent events is accepted by the respondent and I shall turn to that account as it now stands later in this judgment. But certain facts do not appear to be in dispute. It is established that while in Belgium she became pregnant and in October 2008 had an abortion there. Earlier in December 2007 she had suffered a physical assault which led to facial and eye injuries. On 9 January 2009 she submitted a fresh claim for asylum in Belgium, again based on an alleged fear of reprisals from her family.

[8]Her claim for asylum in the United Kingdom on 12 May 2009 was made at the United Kingdom Border Agency’s premises in Croydon, where a screening interview took place the same day. During that interview she claimed to fear persecution in Iraq. She gave her name as that in which these proceedings were brought, different from that provided to the Belgian authorities. Asked how she had travelled to the United Kingdom, she replied that she had left Iraq on 28 April 2009 and arrived in Turkey by car on 30 April 2009 where she stayed until 7 May 2009. She then left Turkey, and arrived in an unknown country the same day by lorry. She left that country the following day by lorry and arrived in the United Kingdom on 12 May 2009. She said that the only time she had been fingerprinted was when she had applied for her Iraq ID card.

[9]She went on to say that she had come to the United Kingdom because her life was in danger from her father and brothers in Iraq. They wanted to kill her because she had had an intimate relationship with a Kurdish man working for the U.S. forces in Iraq. She had become pregnant and had had an abortion without her family’s knowledge. Asked if she had ever claimed asylum in any other country before, she replied no. She said that her boyfriend, who was still in Kirkuk, had arranged for her to come to the United Kingdom, paying an agent to arrange her travel.

[10]It is now conceded that this account given in interview involved extensive fabrication. Not merely did it omit mention of her 18 months stay in Belgium and her asylum claims there, but it put forward a positive and detailed account of her travels and her pregnancy which was wholly false.

[11]Her fingerprints had been taken as part of the screening process in the United Kingdom, and investigations established that she had previously been fingerprinted and claimed asylum in Belgium. At a further interview this was put to her. She initially denied that she had ever been there but eventually accepted that she had. A request was made to the Belgian authorities by UKBA under the terms of Dublin II, and on 20 May 2009 Belgium accepted responsibility for dealing substantively with her asylum claim. The following day the Home Secretary certified her claim under paragraphs 4 and 5 of Schedule 3 of the 2004 Act, to the effect that she was not a national or citizen of Belgium, that being a state included in the list of “safe countries” set out in that Schedule. The consequence of that was that she could not bring an immigration appeal from within the United Kingdom. Removal directions to Belgium were then set for the 29 May 2009.

[12]Representations on her behalf by Refugee and Migrant Justice (“RMJ”), relying on Articles 3 and 8 of the ECHR, were however made on 24 May 2009, following an interview with her of just over one hour. These representations stated that she had arrived in Belgium in October 2007 with her brother, who was older than her, but they had swapped their ages in the belief that he would stand a better chance of obtaining asylum if he was believed to be younger. Both of them were sent to an accommodation centre for asylum seekers in Antwerp, where there were other Iraqis. During her stay there she had begun a relationship with an African man, but she had hidden it from her brother because he would have been very angry about it. Some Iraqi men did find out about it and forced her to have sex with them by threatening to tell her brother. She became pregnant around the end of 2008 and had an abortion. Her brother got to hear of this and beat her a number of times. She was also beaten by a group of her brother’s friends, causing a serious injury to her eye. This she reported to the police but they only told her to call them if she saw the men again. Eventually because of the sexual harassment and her fears about her brother she fled to Calais.

[13]There she found a smuggler who agreed to bring her to the United Kingdom. However, she did not have enough money to pay him. He said that she would have to sleep with him if he was to help her and she did, although she did not want to. She felt he would protect her against the possibility of being raped by other men around the port. She stayed with him for three months, after which he smuggled her into the United Kingdom. She had not told UKBA that she had been in Belgium because she was terrified of being sent back there to suffer further sexual harassment, physical assault and even death.

[14]The Home Secretary rejected these human rights claims. A letter from UKBA on her behalf dated 26 May 2009 did not accept the credibility of this new account of events, stated that Belgium was regarded as a safe third country, and pointed out that the appellant had made a fresh asylum claim in Belgium as late as January 2009, which rendered implausible her account of being in fear for her life there. The claim under Article 8 was also rejected. Finally the Home Secretary certified the appellant’s human rights claim as clearly unfounded, again preventing an appeal from within the United Kingdom. It is unnecessary in the light of later decisions to deal with this decision letter at any greater length.

[15]The removal directions were, however, cancelled because the appellant became disruptive, and they were re-set. But in the meantime RMJ raised the point on 6 June 2009 that he appellant “may well have been trafficked into the UK”, thus making her a victim of trafficking, and they sought a reference of her case to the Competent Authority in the United Kingdom. That was done, but on 28 July 2009 the Competent Authority decided that there were not “reasonable grounds to believe” that she had been trafficked, that being the test under the Trafficking Convention. The decision letter of that date stated that a number of fundamental matters led the Competent Authority to consider her account of events, as put forward by RMJ, to be false, and it identified those matters. In any event it was not considered that the events she described met the criteria of the Trafficking Convention (even if true), as she had consented to sex in exchange for being brought into the United Kingdom rather than seeking the protection of the French authorities. The letter added:

“Furthermore there is no evidence to suggest that assisting your client into the UK was part of any scheme to exploit her once in the country.”

[16]There were then further representations by RMJ on 25 August 2009 in support of the claim that she was a victim of trafficking. These added a number of factual allegations to the material previously put before the Competent Authority. It was said that the injury to her eye in Belgium in December 2007 had happened when she had sought to intervene when the African man with whom she had formed a relationship was attacked by some Iraqi men. The letter also alleged that, while in France with the people-smuggler, she had been forced by him to sleep with some Albanian associates of his. She had also been informed by him that she would be taken to Glasgow where arrangements would be made for her. Medical and psychiatric reports were enclosed with this letter, as was a report from Klara Skrivankova of Anti-Slavery International. Shortly afterwards a witness statement made by the appellant was also submitted.

[17]It is convenient to take that witness statement first before turning to the reports. In it the appellant sets out details about her parents and siblings in Iraq, admitting that she had not given an accurate account about them in the screening interview because “I thought if I told them accurately, then they would know I had been in Belgium.” She states that her brothers and her father used to beat her. They had moved to Baghdad after the fall of Saddam Hussein, but they were living in a Shia neighbourhood. Eventually she left Iraq with two brothers and a sister-in-law and travelled to Greece. Then one of her brothers, J, and she went via Italy and France to Belgium, arriving there in October 2007. She was then 17, and her brother J older, but they were advised to pretend that he was younger than her when claiming asylum.

[18]Her witness statement describes how she and J were put into an accommodation centre in Antwerp. She missed her mother and father. She was beaten by J, who disapproved of her clothes and other things. She began a relationship with a Cameroonian man, L, in the accommodation centre but hid it from her brother. Iraqi men there found out and forced her to have sex with them. They raped her on a number of occasions. She could not think of going to the police because her head was “messed up”. She describes being beaten by some men when she tried to stop them beating up L, suffering a serious eye injury. The police came to the hospital and took details but the problem was that she did not know the names of the men involved. The police said that for that reason they could not taken any action but she should call them if she saw the men again. She did so but the police took too long to arrive.

[19]She found out that she was pregnant on 16 October 2008 and knew it was by L. He would not marry her, and so she had an abortion in a hospital on 29 October. She and her brother were able to get themselves moved to a place in Belgium called Wargem. But after two weeks they left and went to Calais and found a smuggler, but were caught by the police. They then went back to Wargem, but she moved out to stay with a friend because of threats from her brother. She re-applied for asylum in Belgium in January 2009 but left for France again after having been abused in the accommodation found for her. This time she left alone and caught trains to Calais. There she asked some men if they knew of any Iraqi people who were smugglers. She says that she was told to go to a place and ask for Omar. She did, and told him everything, hoping that he would feel sorry for her. He said that she needed to give him 500 euros to take her to the United Kingdom. She only had 150 euros, but he said that if she slept with him he would take her. In the beginning she refused, but after a night back at the station she went back to him and said that she would do it. He took 100 euros from her and left her 50 euros to buy food.

[20]In her witness statement the appellant describes the people Omar was smuggling and states that she was the only girl. Some of his helpers were Albanian, with whom Omar made her sleep. She did not go to the United Kingdom immediately, but had to stay with him and sleep with him. Sometimes she refused and he beat her. At paragraph 64, her statement says:

“The French police did find me on a few occasions but they let me go because I was young and only 18 at the time. Sometimes I just felt like claiming asylum in France but I did not. I heard from people in Belgium that in the United Kingdom they treated asylum seekers well.”

She also states that she thought it would be difficult for her brother to get into the United Kingdom. After about three months she was put into a lorry, with Omar saying she would be taken to Glasgow and a house and would be taken to the Home Office. In fact, when eventually the lorry stopped the driver pointed to a building with a flag and said “Home Office - refugee.” He kept saying this, so she went in and claimed asylum. (This was in fact Croydon). She did not say at her interview that she had been in Belgium because she was terrified of being sent back there.

[21]She was then detained in Yarlswood Reception Centre. She states that while there she could not sleep because “things keep going round in my head”, and that she fears that, if returned to Belgium, her brother will kill her and Iraqi men will abuse her and view her as a prostitute. “I will never go back to Belgium alive.”

[22]That then was and is her witness statement. The medical report by Dr. Mason which accompanied the letter of 25 August 2009 details a number of scars on the appellant - two on her face are said to be typical of a punch in the vicinity of the right eye, as described by her in the course of the fight in December 2007. There are other scars to her arms and legs which are impossible to date but “are likely to have occurred at different times over the past years.” One is said to be typical of a deep burn and was said by the appellant to have resulted from an act of her father’s. Two are typical of scars resulting from deep abrasions, and the remainder are described as non-specific ones which could result from any small wounds but which are consistent with her account.

[23]The psychiatric report dated 20 August 2009 by Dr. David Bell begins with a brief history as he understood it to be. It is clear that he understood that the appellant’s pregnancy had been the result of rape rather than a consensual relationship, a point later picked up by UKBA. He interviewed her on 29 July 2009, the day after she had been discharged from Yarlswood, where she had felt well-treated by the staff. He described her as traumatised by the events she described to him, including having had an abortion one month before the interview. She became very distressed during the interview. Dr Bell records that she bites her arms, pulls hair from her head, and is frightened of other people, especially men. She told him that she had a deep hatred of her father, of whom she lived in terror.

[24]Dr Bell concluded that the appellant was in an acutely disturbed psychiatric state, best diagnosed as a complex traumatised state, and was in need of urgent psychiatric assessment. He opined that the fact that she was under the threat of removal from the United Kingdom was itself a “very major stressor”, and that it was not realistic for her to embark on any appropriate counselling/psychotherapeutic help “until her context is more secure,” He also concluded that the risk of suicide/self-harm was moderately high but would become very high if she were informed that she was to be returned to Belgium or Iraq. Her psychiatric state would deteriorate seriously it if were decided to deport her. Dr. Bell commented that her non-disclosure to the UK authorities of the fact that she had been in Belgium would be understandable, given her fear of being returned to that country.

[25]Ms Skrivankova is currently the Trafficking Programme Co-ordinator in Anti-Slavery International. She expressed in her report dated 24 August 2009 the opinion, based on what the appellant had told her and the appellant’s behaviour during interview, that there were reasonable grounds to believe that she might have been trafficked to the United Kingdom for sexual exploitation (para. 34). The report emphasises, rightly, that such exploitation need not have been achieved: it is enough that action was taken for such a purpose with that intention. It is said that the actions by Omar could be seen as amounting to “grooming” of the appellant and that her decision to enter into a relationship with him cannot be seen as a free choice. The situation can be seen as one of “circumstantial coercion” or “circumstantial pressure”. Ms Skrivankova goes on to criticise the assessment by the Competent Authority on a number of grounds and concludes that the appellant is a very vulnerable young woman who is at a high risk of being targeted by traffickers in the future.

[26]These contentions that there were reasonable grounds to believe that the appellant was a victim of trafficking were not accepted by the Competent Authority. In a letter dated 23 September 2009, it concluded that her own evidence was that she had initially refused Omar’s proposition that he would take her to the U.K. if she slept with him but had returned the following day and agreed to do so. He used no coercion or deception. She had made an informed decision to sleep with him. Moreover, on arrival in the UK she had been taken to a Home Office building where she could claim asylum. In response to a further letter from Ms. Skrivankova, the Competent Authority re-iterated its view as to the lack of credibility in the appellant’s account, pointing out that according to her statement the French police had found her on a few occasions but had released her, allegedly bruised from beatings by Omar, without immigration status or of any fixed abode, because she was young and only 18 years old. She had allegedly chosen to return to her abuser rather than seek protection from the French authorities.

[27]By letter dated 22 October 2009, the Home Secretary decided not to exercise discretion so as to allow the determination of the asylum claim in the United Kingdom.

[28]That decision was re-iterated in a lengthy decision-letter from UKBA dated 26 January 2010, after the case had been “reviewed in its entirety.” It maintained the refusal to accept the reliability of the appellant’s account, spelling out the reasons for that refusal, but it went on to conclude that even if the account were true, her rights under Articles 3 and 8 of the ECHR would not be breached by a return to Belgium. The letter noted a number of factual “misunderstandings” in Dr. Bell’s report, including the understanding that the appellant had become pregnant as the result of rape, that she had undergone a termination of pregnancy one month before his July 2009 interview, when it had taken place in October 2008, and that he had stated that she had been held captive and systematically abused. No allegation of being held captive had been made to UKBA and was inconsistent with her account of having such freedom of movement as enabled the French police to find her on a number of occasions.

[29]The letter referred to the threat of suicide or self-harm. It emphasised that, should she be returned to Belgium, every effort would be made to ensure her safety throughout the procedure, including any necessary monitoring prior to her removal, together with liaison with the Belgian authorities. Given the availability of psychiatric services in Belgium, it was considered that her rights under

Article 3 of the ECHR

would not be breached by lack of health care and treatment nor by any potential risk of suicide. There was no reason to believe that her alleged abusers in Belgium would be able to seek her out on her return or that there would be any absence of protection by the Belgian authorities. Once again the Secretary of State certified the appellant’s human rights claim and decided not to exercise her discretion to deal substantively with the asylum claim in this country.

[30]Another lengthy letter bearing the same date again concluded that there were not reasonable grounds for believing that the appellant was a victim of trafficking. The Competent Authority re-iterated the point that her account was not regarded as truthful and accurate because of her false account to the Belgian authorities and her fabricated account in her screening interview in the UK, but it added that, even if true, her account did not demonstrate that she was a victim of trafficking. Similar points were made to those set out in the earlier letter of 23 September 2009, summarised in paragraph 26 of this judgment. It was noted that she seems to have maintained a degree of independence from Omar while with him and that, though arrested by the police on a number of occasions, actively chose to pursue her objective of coming to the Unite Kingdom rather than seeking asylum in France. The suggestion by Ms Skrivankova that the appellant had been groomed by Omar was rejected. His actions towards her were likely to have been simply for his own personal gratification. Moreover it was highly unlikely that she would have been brought to the UKBA premises at Croydon if the purpose of transporting her to this country had been for exploitation.

[31]Judicial review proceedings were by now under way. Prior to the oral hearing of the renewed application for permission to seek judicial review, a further letter was submitted in November 2010 from Dr. Bell, in which he sought to respond to the criticisms of his report by UKBA. In essence he said that any factual misunderstandings might be the result of confusion on the part of the appellant and in any event they did not alter his diagnosis.

[32]Finally, after permission had been granted by this court in March 2011 to bring judicial review, the Competent Authority and the Home Secretary reviewed the claim under the Trafficking Convention and the human rights claims, as well as the request for discretion to be so exercised as to keep the asylum decision within the United Kingdom. This process produced the decisions dated 1 and 2 June 2011 which are now the subject of these proceedings. Those decisions need, however, to be seen in the context of the numerous previous decisions to which I have referred. I will turn to the reasoning in the June 2011 decisions after having set out the legal framework. The Legal Framework A. The Trafficking Convention

[33]The Trafficking Convention, which came into force in this country on 1 April 2009, imposes a number of obligations on the member States of the Council of Europe, obligations which in the United Kingdom have largely been implemented by the adoption of policies by the government minister mainly responsible, the Home Secretary. The identification of a person as a victim of trafficking provides no automatic right to remain on a long term basis in this country, although as will be seen there are provisions dealing with periods of time for the person concerned to recover and escape the influence of traffickers and also dealing with the grant of residence permits in certain circumstances. But decisions on claims by a person to be a victim of trafficking are not immigration decisions for the purposes of the immigration legislation and there is thus no statutory process for appeals. Judicial review would seem to be the only remedy.

[34]The Convention itself aims to prevent and combat trafficking in human beings, to identify, protect and assist victims of trafficking and to protect their rights, and to promote international co-operation on action against such trafficking: see Article 1. It did not emerge full-grown, Athene-like, from the head of the Council of Europe, but followed on a series of international agreements on the topic, of which perhaps the most important was the United Nations Palermo Protocol 2000, much of the wording of which is reflected in the Council of Europe Convention. The latter defines a “victim” of trafficking as being:

“any natural person who is subject to trafficking in human beings as defined in this article”: Article 4 (e). One finds what is meant by “trafficking in human beings” at sub-paragraph (a) of the Article: “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.” 36.

(a) have been used;”

[35]As the Explanatory Memorandum to the Trafficking Convention emphasises, the process of identifying victims of trafficking has two stages to it, an initial decision and a final decision. This is provided for by Article 10, entitled “Identification of the victims”, which in its passages relevant for present purposes states:

“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 the 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.”

[36]Thus there is a “reasonable grounds to believe" stage, from which point the person must not be removed from the territory of the state, and then there is the completion of the process stage. As paragraph 132 of the Explanatory Memorandum puts it:

“The Convention does not require absolute certainty – by definition, impossible before the identification process has been completed – for not removing the person concerned from the Party’s territory. Under the Convention, if there are “reasonable” grounds for believing someone to be a victim, then that is sufficient reason not to remove them until completion of the identification process establishes conclusively whether or not they are victims of trafficking.”

[37]As Article 10 (2) indicates, once it has been concluded that there are “reasonable grounds” for believing a person to be a victim of trafficking, that person is entitled to receive certain forms of assistance as set out in Article 12 (1) and (2), in order to assist their recovery, including at least appropriate and secure accommodation, material assistance, access to emergency medical treatment and advice on their rights. Also at that stage there must be provided a “recovery and reflection period” of at least 30 days, during which any expulsion order against the person may not be enforced: Article 13 (1). The Unite Kingdom has in fact adopted a period of 45 days for this purpose.

[38]If the matter proceeds to a conclusive decision, and that decision is that the person is such a victim, then a renewable residence permit is to be issued if the competent authority considers that their stay is necessary owing to their personal situation or for the purpose of their co-operation in investigation or criminal proceedings: Article 14 (1).

[39]The definition of “trafficking in human beings” can be seen, as was also true of the Palermo Protocol definition, to involve three basic elements – what the Explanatory Memorandum identifies as “action, means and purpose”. As paragraph 74 of the Explanatory Memorandum analyses it:

“74. In the definition, trafficking in human beings consists in a combination of three basic components, each to be found in a list given in the definition: • the action of. “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, which includes ”at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, force labour or services , slavery or practices similar to slavery, servitude or the removal of organs”

. It goes on to elaborate further in paragraph 83 on what is meant by abuse of “a position of vulnerability”, saying that by those words “is meant abuse of any situation in which the person involved has no real or acceptable alternative to submitting to the abuse.” (emphasis added) That wording which I have emphasised is also to be found in the travaux preparatoires to the Palermo Protocol and, subsequent to the Trafficking Convention, in EU Directive 2011/36, Article 2 (2). • the action of. “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, which includes ”at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, force labour or services , slavery or practices similar to slavery, servitude or the removal of organs”.

[40]The government’s policies for complying with the Trafficking Convention are to found, at least in part, in Guidance for the Competent Authorities, there being two such authorities, one for cases involving a UK or EEA national and the other, relevant for present purposes, where the case arises as part of an asylum claim or in the context of another immigration process. In the latter situation the Competent Authority is to be found within UKBA. The Guidance suggests that the “reasonable grounds to believe” test can be applied by asking whether the statement “I suspect but cannot prove” would be true. Some attention is paid to the assessment of the credibility of the potential victim, emphasising the need for assessors to be properly sensitive to the effects of traumatic experiences on the person concerned, but adding:

“However, the need to be sensitive does not remove the need to assess all information critically and objectively”

B. The Schedule 3 Certificates

[41]The Home Secretary, as pointed out at the beginning of this judgment, has issued two types of certificates in respect of the appellant. The first was issued under paragraph 5 (1) of the 2004 Act, Schedule 3, which relates to a certificate by the Secretary of State that:

“(a) it is proposed to remove a person to a State to which this Part applies, and (b) in the Secretary of State’s opinion the person is not a national or citizen of the State.”

The Part of the Schedule referred to applies to a list of states, described as “safe countries” in the heading, being states which are other member states of the European Union together with Norway and Iceland. Belgium is one of the listed states referred to in paragraph 2 of the Schedule. Paragraph 3 provides that, for the purposes of determining whether a person who has made an asylum claim or a human rights claim may be removed from the United Kingdom to a state of which he is not a national, a state in the list shall be treated as a place: “(a) where a person’s life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion, (b) from which a person will not be sent to another State in contravention of his Convention rights, and (c) for which a person will not be sent to another State otherwise than in accordance with the Refugee Convention.” (para. 3 (2)) The “Convention rights” referred to in (b) of paragraph 3 (2) are those under the ECHR.

[42]This provision reflects the procedures set up under Dublin II, in cases where such a state is regarded as responsible for determining the substantive merits of an asylum claim because it was the first Member State in which the claimant arrived. In the present case, Belgium has accepted such responsibility. The effect then of paragraph 5 (3) is to remove the right to an in-country appeal in reliance on an asylum claim which asserts that removal to that state would breach the U.K’s obligation under the Refugee Convention or in reliance on a human rights claim in so far as it asserts that such removal would be unlawful because of the possibility of “refoulement” to another State. What the provisions so far identified do not prevent is an in-country appeal where the allegation is that the removal to one of those listed states would breach the claimant’s rights under the ECHR other than because of “refoulement”.

[43]That last situation is dealt with by paragraph 5 (4) of Schedule 3, which states:

“(4) The person may not bring an immigration appeal by virtue of section 92 (4) (a) of that Act in reliance on a human rights claim to which this sub-paragraph applies if the Secretary of State certifies that the claim is clearly unfounded, and the Secretary of State shall certify a human rights claim to which this sub-paragraph applies unless satisfied that the claim is not clearly unfounded.”

[44]These provisions in Schedule 3 are the reason why the appellant’s arguments have concentrated, first, on the certificate that her ECHR claim is clearly unfounded and, secondly, on the refusal of the Home Secretary to exercise her discretion so as to deal with the asylum claim substantively in this country. That latter possibility undoubtedly exists as a matter of law under the Dublin II Regulation.

[45]The current state of the law dealing with certificates that a claim is “clearly unfounded” is now reasonably well-established after a series of decisions. First of all, the court’s role in such cases is to apply normal judicial review principles, though with the addition of “anxious scrutiny”, to the Secretary of State’s decision to certify, rather than substituting its own view as to whether the claim is clearly unfounded: see ZT (Kosovo) v Secretary of State for the Home Department

[2009] UKHL 6

;

[2009] 1 WLR 348

, paras. 55, 65, and82. This approach, however, will rarely produce a different result from the court arriving at its own view on the issue, at least where the primary facts are not in dispute: ibid, paras. 23, 66, 67, 75 and

83. The test is whether the Secretary of State’s decision to certify was irrational, but if the court concludes that a claim is not “clearly unfounded”, it is hard to think of circumstances where the court would regard the decision as a rational one.

[46]The apparent shifting of the burden of proof as a result of the duty on the Secretary of State to certify unless she is satisfied that the claim is not clearly unfounded is unlikely in itself to be significant. Nonetheless, it can be deduced from the legislation that Parliament’s assumption is that in general in each of the listed states there will be no serious risk of Article 3 ill-treatment. That is not a conclusive presumption, but a claimant alleging such a risk will need to have cogent evidence such as: “to raise an arguable case that he has experienced persecution, with the systematic involvement or want of protection on the part of the state…., rather than random ill-treatment by non-state agents which does not engage the responsibility of the state.” per Lord Phillips of Worth Matravers, M.R., in R (L) v Secretary of State for the Home Department

[2003] EWCA Civ. 25

at paragraph 46. L was an asylum case where a certificate had been issued under section 115 (6) of the Nationality, Immigration and Asylum Act, 2002, but the same principles would apply to a certificate that a claim that there would be a breach of ECHR rights in the “safe third country” was clearly unfounded. As it was put by the House of Lords in R (Nasseri) v Secretary of State for the Home Department

[2009] UKHL 23

, at paragraph 41: “Other member states [of the European Union] are entitled to assume – not conclusively presume, but to start with the assumption – that other member states will adhere to their treaty obligations. And this includes their obligations under the European Convention to apply Article 3 ….” - per Lord Hoffmann

[47]What is meant by “clearly unfounded” can be deduced from what was said by Lord Bingham of Cornhill in R (Yogathas) v Secretary of State for the Home Department

[2002] UKHL 36

;

[2003] 1 AC 920

at paragraph 14, even though that was a case dealing with the phrase “manifestly unfounded”:

“No matter what the volume of material submitted or the sophistication of the argument deployed to support the allegation, the Home Secretary is entitled to certify it if, after reviewing the material, he is reasonably and conscientiously satisfied that the allegation must clearly fail.”

[48]This approach requires caution where issues of the claimant’s credibility arise. As Lord Phillips of Worth Matravers, M.R., said in the L case at paragraph 60:

“Where an applicant’s case does turn on an issue of credibility, the fact that the interviewer does not believe the applicant will not, of itself, justify a finding that the claim is clearly unfounded. In many immigration cases findings on credibility have been reversed on appeal. Only where the interviewing officer is satisfied that nobody could believe the applicant’s story will it be appropriate to certify the claim as clearly unfounded on the ground of lack of credibility alone.”

That, of course, emphasises that a different and more generous approach to issues of credibility is required in cases of certificates that a claim is “clearly unfounded” from that appropriate when a Competent Authority is assessing a claim under the Trafficking Convention.

[49]Issues are also raised as to the Charter and about

Article 4 of the ECHR

(as well as Articles 2 and 3), but I shall deal with the law on those matters in due course. It is unnecessary to set out the relevant provisions at this stage.

[50]One of the points made on behalf of the appellant is that the trafficking issues and the human rights/asylum issues are interrelated. I can see that a possible risk that the appellant would be trafficked if returned to Belgium is relevant to her human rights claim. Nonetheless, the question of whether she is or has been the victim of trafficking within the meaning of the Trafficking Convention does raise distinct and separate issues from those under the human rights claim and, as I have already observed, the approach to the topic of credibility is not the same. It is therefore appropriate to take the trafficking claim separately and I propose to deal with it first.

The Decision by the Competent Authority dated 2 June 2011

[51]This decision, like the accompanying decision by the Home Secretary on the human rights and asylum claims, resulted from a review of the claims after the grant of permission in March 2011 to seek judicial review of the earlier decisions. It is the two decisions of June 2011 which now form the subject matter of these proceedings.

[52]On 2 June 2011 the Competent Authority wrote to the appellant’s representatives to inform them that it had been decided that there were no reasonable grounds for believing that she was a victim of trafficking. Although this decision-letter is of some considerable length, some seven pages in all, it emphasises at the outset that, even if an individual document is not expressly referred to, all the evidence which has been submitted on her behalf has been carefully considered. The first point then made, after some of the history has been set out, is that it had been concluded that the appellant could not be relied on to provide a truthful and accurate account. The letter refers to the false account which she had given to the Belgian authorities and to the fact that she had “sought to deceive the UK immigration officials when making her claim in the U.K.” She had stated that she had travelled to the United Kingdom via Turkey and an unknown country. “Routine fingerprints checks revealed that she had previously sought asylum in Belgium. When this was put to your client, she denied having been fingerprinted there. Later she accepted that she had been in Brussels.”

[53]Reference is made to the delay in raising the trafficking allegation, even though she had shown that she was capable of approaching the authorities and seeking assistance, as she had done in Belgium, both by way of her asylum claim and by her reporting the assault by her brother’s friends to the police. The letter acknowledges that her explanation that at her initial screening interview in the U.K. she did not mention that she had been trafficked for fear of others overhearing might have some merit, but she had chosen not to raise it at subsequent interviews. Her account alleged that she had been repeatedly attacked and abused in Belgium, but she had apparently only reported one of the alleged attacks to the Belgian authorities, despite being prepared to make a second asylum claim to them.

[54]The letter also doubts the credibility of her account of her time in France, noting that it was unlikely that a young woman with bruises and other injuries, picked up by the French police on several occasions amongst potential illegal immigrants, would simply have been released by them and that it was unlikely that she would not have sought their assistance: para 21.

[55]The letter states:

“However, even if the accuracy of your client’s account was accepted in its entirety, which for the avoidance of doubt it is not, it is plain that it does not demonstrate “reasonable grounds” that she was the victim of trafficking.”

Reference is then made to the various reports submitted on her behalf. On Dr. Bell’s report, while accepting that the appellant could be a vulnerable young woman, the decision letter observes that that does not mean that she was trafficked to the United Kingdom for the purposes of exploitation. Insofar as Dr. Bell indicated that he did not consider that she could present a false account, it is noted that she had accepted that she had consistently lied and maintained a false account to both the Belgian and British authorities in order to achieve her objective. So far as the scars observed by Mr Mason were concerned, it is accepted by the Competent Authority that the appellant may have been attacked while in France, but not that such accounts were part of a “grooming” process nor that they were evidence of trafficking.

[56]The letter then deals with Ms Skrivankova’s report. It emphasises that the appellant had, by her own account, sought out the man Omar, to help her to travel to the United Kingdom and that initially she had refused to sleep with him in return. However, the next day she had returned to him and accepted his terms:

“From Ms Skrivankova’s report and from your client’s own statement dated 7 September 2009, it would appear that your client made a conscious decision to return to Omar and to sleep with him in order to achieve her object of reaching the United Kingdom. In her statement your client states that she knew she did not have enough money to pay to be smuggled to the United Kingdom but took the conscious decision to tell Omar her whole story in the hope that he would feel sympathy for her and help her. When he did not, but asked for sexual favours in return for passage to the Unite kingdom, there is no evidence to suggest that she was prevented from leaving him if she would not agree to his request. Your client, having considered her position and the terms offered for passage to the United Kingdom accepted them and voluntarily returned to Omar. There is no indication in either Ms Skrivankova’s or your client’s statement that she was either forced or otherwise coerced into returning and accepting Omar’s terms. Having returned to Omar your client does appear to have maintained some degree of independence. At paragraph 63 of her statement she has said that she refused to smoke hashish with him and would refuse to sleep with him, although she states this resulted in severe beatings. Nevertheless it does indicate that your client retained her own will and was not wholly controlled by Omar. In her statement paragraph 64, your client also states that although she was arrested by the police on a number of occasions she actively chose not to seek asylum in France but preferred to pursue her objective of coming to the United Kingdom. This indicates that your client had a good clear understanding of what she was doing and what she wanted rather than simply complying with the instruction of Omar. At paragraph 38 of her report Ms Skrivankova states that it is irrelevant that your client agreed to be brought to the United Kingdom if she was being trafficked. However this statement appears to ignore your client’s consistent assertion that she actively wished to get to the United Kingdom because she had been told that asylum seekers were well treated here. At no point has your client stated that coming to the United Kingdom was suggested to her by Omar, nor that she was subject to any form of persuasion or coercion from Omar in order to “consent” to come to the United Kingdom. You client appears to have entered into the arrangement with Omar for the sole purpose of achieving her object of gaining entry to the United Kingdom. Whilst not wishing to minimise the abuse and distress that your client alleges that she suffered from Omar, there is no evidence to suggest that he instigated or otherwise suggested the plan that your client should come to the United Kingdom.”

[57]The letter notes that at no time had the appellant asserted that Omar was “known” for anything other than facilitating illegal entry into the United Kingdom and that his actions towards her could have been simply for his personal gratification. When brought to the United Kingdom she had been taken directly to the UK Border Agency in Croydon and not to the third party in Glasgow she alleged she was going to be taken to. “Had your client been brought to the United Kingdom for the purpose of exploitation by one of Omar’s colleagues as is suggested it would seem highly unlikely that this colleague would take her to UK Border Agency, tell her that was where she could claim asylum and thereby give her an opportunity to seek assistance rather than be taken to the third party in Glasgow. This action on the part of the lorry driver can also be seen as an indication that Omar was simply a facilitator of illegal entrants rather than an experienced trafficker of women for exploitation as implied by Ms Skrivankova. Furthermore having claimed asylum in the United Kingdom your client has not alleged any abuse in this country nor has she alleged any attempts to contact her by Omar or any of his colleagues. Again had your client been “groomed” for exploitation as suggested by Ms Skrivankova it seems unlikely that she would have been permitted to avoid such exploitation without any resistance from her traffickers. Ms Skrivankova provides no consideration of how the accepted facts of your client’s circumstances in the United Kingdom bear on her hypothesis.”

[58]Consequently the Competent Authority concluded that there were no reasonable grounds for believing that the appellant was a victim of trafficking to the United Kingdom.

The Challenge to the Trafficking Decision

[59]Perhaps understandably, it is the trafficking decision which is described by the appellant as the “core decision”. It is submitted first by Miss Cronin on her behalf that the Competent Authority has misunderstood the meaning of “reasonable grounds” for believing a person to be a victim of trafficking, and she draws attention to the way the test is put in the Guidance issued to Competent Authorities: “I suspect but cannot prove”, and whether a reasonable person would be of the opinion that, having regard to the available information, there were reasonable grounds for such a belief. It is argued that the Competent Authority has here applied a test more appropriate to the eventual “conclusive decision” stage, rather than the “reasonable grounds” stage.

[60]On credibility, it is emphasised that the Trafficking Convention does not expect all victims to self-identify. Article 27, dealing with the investigation and prosecution of criminal offences, requires states to ensure that such procedures are not dependent on the report or accusation made by the victim. Miss Cronin contends that, in situations such as this, it is not uncommon to have initial falsehoods from a claimant, because they may be reluctant to say what has happened to them. As has been accepted, there was at the initial interview a risk of being overheard, and the second interview followed only two days later.

[61]So it is submitted that there were reasonable grounds for believing that the appellant was a victim of trafficking and that it was irrational to decide otherwise. The Competent Authority had before it an expert report from Ms Skrivankova, concluding that here were such reasonable grounds for belief. Emphasis is placed on the words in the Article 4 (a) definition, “abuse … of a position of vulnerability”, it being said that this is what happened in Calais. The appellant had “no real and acceptable alternative” to submitting to Omar’s abuse, because her brother could easily get to France and she really had no choice in the matter. Finally it is contended that the Competent Authority failed to address the issue of whether the appellant had become a victim of trafficking while still in France, irrespective of her being conveyed to the United Kingdom,. Miss Cronin points out that the “action” part of the definition includes “harbouring” as well as “transportation” and that the appellant did not have to be brought to the United Kingdom in order to qualify under the Convention. Yet that was the only basis on which the Competent Authority had considered the matter.

[62]The representations made by the intervener did not add materially to these submissions as to whether the Competent Authority’s decision was one made in breach of the usual Wednesbury principles or was otherwise wrong in law.

Discussion of the Trafficking Decision Challenge

[63]Logically one begins with the rationality of the view taken by the Competent Authority as to the appellant’s credibility. The Authority attached some weight to the false accounts which she had given to the Belgian and the UK authorities. While I can see some force in Miss Cronin’s point that at the screening interview in this country the appellant may have been reluctant to speak about the alleged sexual abuse for fear of being overheard, that point only goes a very limited way. It does nothing to deal with the fact that she had given a false story to the Belgian authorities. It does not explain why she made no mention of such abuse at her second interview in the UK. It also needs to be borne in mind, as Miss Anderson for the respondent emphasises, that the appellant had been prepared at the screening interview to tell a story about having had a sexual relationship in Iraq, about her pregnancy there as a result and about an abortion there. The risk of being overheard does not seem to have had any marked inhibiting effect on her in those respects.

[64]In addition, according to her own witness statement, she had been prepared to tell a complete stranger, Omar, at their first meeting all about her sexual experiences in Belgium: her relationship with an African man, the resulting pregnancy and her abortion, and the sexual abuse allegedly suffered at the hands of Iraqi men, and “everything”. She did so in the hope of eliciting sympathy. Again, that does not sit easily with the argument that she was too embarrassed to tell the UKBA about her experiences in France, when seeking asylum in this country.

[65]Moreover, while one might understand that in some circumstances some matters might be omitted from her account of events because of embarrassment or the psychological impact of events, the fact remains that she produced to the UK authorities an elaborate fabricated account of what had brought her to the United Kingdom, with a lot of positive invented facts. She would seem to have had a certain ability to tell such a story. I also see some justification for the point made in the decision-letter that it is unlikely that the French police, having picked up this young woman on a number of occasions, would in the circumstances described simply have let her go.

[66]The Competent Authority appears to have taken into account the matters relevant to the question of credibility. It accepted that the appellant could be vulnerable. It referred to the various medical and other reports on her and accepted that she may have been attacked while in France.

[67]It seems to me that the Competent Authority was entitled to conclude that the appellant could not be relied upon to give a truthful account. The Authority appears to have considered her credibility in the round, and it was in my judgment not irrational or perverse of it to conclude that her account of events in France, which lies at the heart of her claim under the Trafficking Convention, could not be relied upon to establish “reasonable grounds” for believing her to have been trafficked.

[68]That in itself is sufficient for a conclusion on my part that her claim for judicial review of the Competent Authority’s decision must fail. But, like the Authority, I propose to go on to consider whether, if her account were to be accepted, “reasonable grounds” would have been established. I begin with the question of whether there would then be reasonable grounds for believing her to have been trafficked to the United Kingdom, since that is the thrust of Ms Skrivankova’s report. As she puts it at paragraph 34 of that report, she believes there are a number of indicators that the appellant was:

“in the process of being trafficked to the U.K. for sexual exploitation. I consider these to be sufficient to conclude reasonable grounds to believe (sic) that she might have been trafficked to the U.K. Therefore, I will refer to her as a victim of trafficking.”

(emphasis added) The same approach is adopted in her conclusions at paragraph 118. I shall deal subsequently with whether there were reasonable grounds for believing that she had been trafficked within France.

[69]It is important at the outset to note the distinction between trafficking in human beings and the smuggling of migrants, a distinction emphasised by the Explanatory Memorandum to the Convention itself. At paragraph 7 it states:

“While the aim of smuggling of migrants is the unlawful cross-border transport in order to obtain, directly or indirectly, a financial or other benefit, the purpose of trafficking in human beings is exploitation.”

That is one reason why the definition of trafficking in Article 4 (a) contains the three component elements of the action, the means and the purpose, as referred to in paragraph 39 of this judgment, all three of which need to be present.

[70]There can be no doubt that the conveying of the appellant to the UK amounted to the transportation of her and so met the “action” requirement in the first part of the Article. But the appellant’s problem arises in respect of the other two components, even on her own account. The “means” element requires that the action be:

“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.”

I can see no evidence that the appellant was transported to the UK by any of those means. The closest she might come to showing reasonable grounds in this respect would be by an alleged abuse of her position of vulnerability. But as Miss Cronin accepts, that requires the person to have had “no real and acceptable alternative to submitting to the abuse”. That is not the situation indicated by the appellant’s own witness statement. The reason why she decided, on reflection overnight, to sleep with Omar was that she wanted to get to the United Kingdom. But there was a real and acceptable alternative to that, in the shape of making an asylum and human rights claim to the French authorities. France is as much a signatory to the Refugee Convention, the ECHR and indeed the Charter as is this country. There is no reason to believe, and certainly no evidence put before the Competent Authority, to show that France would not have complied with its obligations under those international agreements and would not have afforded the appellant adequate protection. She could have advanced the various arguments under the human rights and asylum headings that she seeks to rely upon in these proceedings.

[71]The Competent Authority was therefore fully entitled to conclude, as it did, that she chose to pursue her objective of coming to the United Kingdom and voluntarily returned to Omar in order to do so. It was she who sought him out because she had been told that he was a people-smuggler. Moreover she was subsequently in contact with the French authorities on several occasions and yet chose to return to Omar in order to pursue her objective.

[72]As for the ‘purpose’ part of the definition, I cannot see that there is any evidence that the purpose of her transportation was that of exploitation of her. There was no evidence put before the Competent Authority that Omar was engaged generally in the trafficking of people for such a purpose. Her own witness statement, when referring to the people he smuggled, says that she was the only girl: paragraph 60. It also says that she would be taken to Glasgow, where she would be taken to the Home Office. In the event, she was conveyed to the Home Office premises of UKBA in Croydon, with the driver pointing the building out to her and saying “Home Office – refugee”. That does not accord with the purpose of her transportation having been exploitation. Nor is there any evidence of any subsequent attempt to contact her in the United Kingdom for such purposes.

[73]Certainly, according to her account, she slept with Omar and with some of his friends, but all of that seems to have been something she accepted as part of the price of getting to the United Kingdom because she had heard “that in the United Kingdom they treated asylum seekers well”: paragraph 64 of her witness statement. For the reasons I have set out, that is insufficient to show reasonable grounds for regarding her as a victim of trafficking to the United Kingdom.

[74]I do not accept that the Competent Authority misdirected itself as to the meaning of “reasonable grounds”. There is no evidence to support that proposition or to believe that it applied a test more appropriate to the “conclusive decision” stage. The mere fact that it had before it Ms Skrivankova’s report expressing the opinion that the appellant may have been a victim of trafficking does not render its decision irrational. The Competent Authority had to evaluate that report and decide how far it stood up to a proper evaluation. It did so, and its ultimate decision was not irrational, even if the appellant were regarded as credible.

[75]It is true that the Authority does not appear to have addressed, at least not expressly, an argument that the appellant was a victim of trafficking irrespective of her transportation to the U.K., i.e. simply while in France. The argument now advanced is that the first part of the definition of trafficking in Article 4 (a), the ‘action’ part, includes “harbouring” and that what she alleges happened to her while with the man Omar could come within that expression. Further, it is said that there was sexual exploitation of her while being so “harboured”.

[76]As I have already indicated, that was not the basis on which the claim to be a victim of trafficking was made on her behalf, nor was it a basis supported by Ms Skrivankova’s report (paragraph 68, ante). It was, however, a point taken in these proceedings at a stage before the decision of 2 June 2011 and it can no doubt be said that the Competent Authority should have dealt with it.

[77]Nonetheless, it is quite clear that the same decision would and should have been reached on that argument as on the one advanced by Ms Skrivankova. Even if the meaning of “harbouring” is sufficiently wide to encompass the appellant’s time with Omar (when she was, according to her account, sufficiently free to move about as to be picked up by the police on several occasions), the argument was bound to fail because it could not meet the requirement as to the “means” set out in the definition in Article 4 (a). There was no force, fraud or coercion used to keep her there and, while she may have been vulnerable, she had a real and acceptable alternative available to her, as described in paragraph 70 of this judgment.

[78]Consequently, even if the Competent Authority had regarded the appellant as credible – and it was entitled not to – its decision that there were not reasonable grounds to believe her to be a victim of trafficking cannot be impugned. It was one which it was entitled to make.

The Home Secretary’s Decision dated 1 June 2011

[79]By this decision the Home Secretary, after a further review of the case, certified under Schedule 3 of the 2004 Act that the appellant’s human rights claims were clearly unfounded and declined to exercise her discretion so as to consider the merits of the asylum claim in the United Kingdom. Again, it is a lengthy decision-letter extending to some eleven pages and covering the matter in some considerable detail.

[80]It states that the appellant’s account of events is not accepted and sets out the reasons for this, largely similar to those set out by the Competent Authority in its letter of 2 June 2001. That ground need not be covered again, but the Home Secretary’s letter does also question more fully her account of what had happened in Belgium, in particular the extent of the alleged harassment, given her failure to seek assistance from the authorities there or to seek to move away, as well as her making of a second and subsequent application for asylum in Belgium only shortly before apparently going to France and then the United Kingdom.

[81]The letter notes that, even if her account of events in Belgium were true, it did not demonstrate a lack of protection in that country, in that the police were willing to assist. The problem had been that she had been unable to identity the alleged assailants. Moreover, though the report by Mr Mason could not date most of her scars, the majority would seem to have occurred in France rather than Belgium, to which she would be returned. Thus it was considered that her Article 3 concerns were not objectively well-founded:

“On your client’s account her abusers appear to be transient persons seeking asylum in Belgium and it is likely that they may have voluntarily or involuntarily left the country. In any event, there is no indication that they could or would be able to seek out your client. Further, if your client has any concerns she could seek assistance and it is not accepted that there would be a deliberate refusal to act by the Belgian authorities. Your client’s account in her witness statement says that the reasons the police did not act when she first reported the assault by her brother’s friends was because she did not know who the people were and there was no other evidence of her account upon which the police could act. Nevertheless she was told to contact the police if she saw these individuals again. Whilst your client’s concerns are noted, for the reasons given above it is considered that they are not objectively well founded and she will not suffer ill treatment or be refused protection by the Belgian authorities in breach of their obligations under the ECHR.”

[82]The letter referred also to the reports from Ms. Skrivankova and Dr. Bell and to the concerns expressed therein. Insofar as Ms. Skrivankova had made a number of recommendations to assist in maintaining the appellant’s safety upon her return to Belgium, the U.K. Border Agency was “content to liaise with the Belgian authorities so that appropriate reception arrangements can be made for your client”, although her agreement to passing the details of her alleged abuse and health issues to the Belgian authorities would need to be given and so far this had not been forthcoming (paragraph 22). Dr. Bell’s report was again criticised for the factual misunderstandings in it, and the letter commented:

“Dr. Bell concludes that your client would not be able to avail herself of the protection of the Belgian authorities or seek medical assistance in the light of the alleged leak of information about her termination. However, he does not seem to take account of the fact that your client has already made 2 asylum claims in Belgium and sought medical assistance in Belgium after her termination without the assistance of others.”

[83]As for the risk of suicide or self harm, the letter continued:

“The UK Border Agency takes very seriously any threat of suicide or self harm and Dr. Bell’s comments on this issue in relation to your client have been noted. As you are already aware, when your client was previously detained under immigration powers she was carefully monitored in order to ensure her well being. Should your client be returned to Belgium every effort will be made to ensure her safety throughout the procedure as indicated below.”

[84]The proposed procedure is then set out:

“Steps taken to ensure no breach of ECHR on return to Belgium The UK Border Agency will take all reasonable steps to ensure your client’s safety during the process of return to Belgium and would be content to pass on her allegation with regard to the abuse she states she suffered while in Belgium and details of any medical treatment she was receiving in the United Kingdom provided that she consented to this being done. If your client were content for such information to be passed to the Belgian authorities it would enable them to make appropriate provision ready for her upon her return. Prior to your client’s removal to Belgium arrangements will be made to ensure that removal is implemented in an appropriate manner including consideration of prior detention and monitoring as necessary. As indicated with your client’s consent, as much information as possible concerning your client’s medical records will be given to the Belgian authorities prior to her return in order that they can make the provisions they deem necessary, available to your client upon arrival. A copy of her witness statement detailing the abuse she alleges that she suffered in Belgium and France and details of her assertion to have been trafficked will also be forwarded to the Belgium authorities. This will allow the Belgium authorities to consider the very specific circumstances of your client’s case and put in place any additional arrangements considered necessary for her protection and support while in Belgium. Appropriately trained medical escorts will accompany your client on the journey to the airport and on the short flight to Belgium in order to ensure her safety during this period and until she has been received by the Belgian authorities. As is well known, Belgium has very good health services, including psychiatry, available through the country. Further, additional assistance and support is available from non governmental organisations similar to those in this country. The United Kingdom has no reason to believe that Belgium would breach its obligations to your client under the terms of the Council Directive 2003/9/EC of January 27 2003 which laid down minimum standards for the reception of asylum seekers. Article 15 of that Directive provides that asylum seekers will be provided with essential health care. Article 20 provides that those seeking asylum who have been the victim of torture, rape or other serious acts of violence will receive the necessary treatment for the damage caused by such acts. In light of this the United Kingdom has reasonable grounds to believe that there will no infringement of your client’s rights under Article 3 of the ECHR by way of lack of health care including treatment that she may require for any mental health problems she may experience. The UK Border Agency believes that its view is supported by the medical reports which you have provided from Belgium via the Red Cross there. These documents show that the health issues raised by your client were investigated, for example your client’s unexplained weight loss, and treated appropriately.”

[85]In the light of authorities such as J v Secretary of State for the Home Department

[2005] EWCA Civ 629

and Tozlukaya v Secretary of State for the Home Department

[2006] EWCA Civ 379

, from which the letter quotes extensively, it was concluded that the evidence about the risk of suicide did not reach “the high standard of proof required to establish a breach of Article 3”.

[86]Consequently the Home Secretary certified the human rights claim. The letter also said that there was no reason for discretion to be so exercised as to deal with the asylum claim in the United Kingdom. It observed that there was no compelling evidence justifying not adhering to the normal system. The appellant had alleged no strong ties to the UK and had spent a considerable amount of time in Belgium.

The Challenge to the Home Secretary’s Decision

[87]The appellant contends that the Home Secretary’s decision to certify was irrational. It is said that the decision turned on the appellant’s credibility, which is not a sound basis for certifying a claim as being clearly unfounded. The authorities show that the test is whether the claim might succeed before an Immigration Judge on an appeal, and the decision in L (ante) shows that the Secretary of State should not certify the claim on the ground of lack of credibility unless satisfied that nobody could believe the appellant’s story.

[88]Miss Cronin emphasises that the Home Secretary has accepted that the appellant may be vulnerable. She is a young woman, who has undeniably been attacked while in Belgium, who had an abortion there and who, on the expert evidence, could well be at risk of Article 3 ill-treatment there from her brother or other Iraqis. Attention is particularly drawn to Ms Skrivankova’s conclusion that the appellant is at a high risk of being targeted by traffickers in future. In the United Kingdom, according to Ms. Skrivankova, the authorities would ensure the full protection of the appellant against this, whereas if returned to Belgium she would need to be protected against the Iraqi community. A number of measures for her protection, if returned to Belgium, are recommended by Ms. Skrivankova and there is no evidence that they would be taken. An Immigration Judge could properly find that there is a real risk of her being trafficked if returned to Belgium and that would amount to a breach of her rights under Article 3, 4 and 8 of the ECHR.

[89]Miss Cronin seeks to rely on correspondence between UKBA and the Belgian authorities after the decision now under challenge, in order to demonstrate that those latter authorities might well not provide the necessary protection and support. That, however, is not a line of argument open to her on judicial review, since this court must, as was pointed out in R (YH) v Secretary of State for the Home Department

[2010] EWCA Civ 116

;

(2010) 4 All ER 448

, judge the issue on the material available to the Secretary of State at the time: paragraph 21, per Carnwath L.J.

[90]Reliance is also placed on the evidence of Dr. Bell about the risk of suicide, were a decision to be made to return the appellant to Belgium. Her fear of being returned there may be irrational, but the risk of her acting because of that fear must be taken into account, as the decision in Y (Sri Lanka) v Secretary of State for the Home Department

[2009] EWCA Civ 362

shows. Miss Cronin also contends that the Home Secretary’s decision-letter nowhere refers to Dr. Bell’s later comments in November 2010 and consequently must have failed to take it into account, in breach of the normal Wednesbury principles.

[91]As for the asylum decision, it is accepted that the Home Secretary had a discretion in the matter, but it is argued that, if transfer of an asylum-seeker to another Member State would expose that person to a serious risk of a breach of his or her fundamental rights, there is then a duty on the first Member State to examine the asylum application substantively itself. For that proposition Miss Cronin relies on the opinion of the Advocate General in NS v Secretary of State for the Home Department [2011] EUECJ C-411/10. That opinion was based in part on the provisions of the Charter. Thus the discretion may become a duty to act in a particular way. The appellant also submits that the Home Secretary’s exercise of discretion is, in any event, perverse. Mr. Taghavi supported the submission, based on the Charter.

Discussion on the Challenge to the Home Secretary’s Decision

[92]Miss Cronin is clearly right in law in emphasising the very limited extent to which the Home Secretary is entitled to certify a claim as “clearly unfounded” simply on the basis of a lack of credibility on the part of a claimant. I say “simply”, because the decision in L was to the effect that it was only where nobody could believe the claimant’s story that it would be appropriate to certify “on the ground of lack of credibility alone”: paragraph 60, emphasis added. It is quite clear that, in the present case, the Home Secretary has not certified on the basis solely of a lack of credibility. Her letter at paragraph 13 states in terms that “your client’s case has also been considered on the alternative basis as though her account is reliable”, but the human rights claim has still been rejected. I propose to proceed on the basis that her account might be accepted by an Immigration Judge as true. That is the first preliminary point I would make.

[93]Secondly, I cannot see that the argument about the exercise of discretion over the asylum claim and the reliance on the Charter adds anything material to the case. The submission depends upon there being a serious risk of a breach of the asylum-seeker’s fundamental rights if transferred to the other Member State. It is, in consequence, parasitic upon it being shown that there is a serious risk of a breach of human rights if so transferred. That in truth is what this part of the case is all about. If there is no such risk, the asylum argument falls with the human rights argument. I can see no proper basis either for regarding the decision about the exercise of discretion as irrational. It appears to have applied a proper approach under Dublin II.

[94]Thirdly, it is accepted by the appellant that there is a rebuttable presumption under the 2004 Act that other European Union Member States like Belgium will observe their obligations under the ECHR and under the Trafficking Convention. It is not a conclusive presumption, but the Home Secretary is, in a Schedule 3 deemed safe country case, entitled to start with that assumption, as Nasseri (ante) makes clear. In the present case there is no evidence that in general Belgium falls short of a proper observance of those obligations. The appellant’s case turns on factors specific to her, and it is those which the Home Secretary was then required to consider.

[95]With those preliminary points, I turn to the appellant’s submission of irrationality, bearing in mind that it is essentially for this court to form a view on whether her human rights claim is bound to fail. It is a claim which is based on several separate alleged risks. The first is that she may be at risk of physical harm in Belgium from her brother or physical and/or sexual harm from other Iraqi men. The second is that there is a risk of her being trafficked if returned to Belgium, that being a higher risk than if she remains in this country. Thirdly, it is said that there is a risk of suicide if it is decided to return her to Belgium, a risk which could engage Articles 2, 3 and 8 of the ECHR. I will consider each of these propositions in turn.

[96]One has to approach the assessment of risk to the appellant from her brother or other Iraqi men in Belgium on the basis that an Immigration Judge might accept her account of physical assault and rape during the time she was previously in that country. Indeed, there is no doubt that she suffered a blow to the eye while there, and she is to be seen as a vulnerable young woman. The fact that such harm was suffered not at the hands of the police or other State authorities but at the hands of third parties, non-State entities, does not prevent the possibility of a breach of

Article 3 of the ECHR

. As the Strasbourg Court said in HLR v France

[1998] 26 EHRR 29

, an expulsion case where the threat was said to be from drug traffickers, “the Court does not rule out the possibility that

Article 3 of the Convention

may also apply where the danger emanates from persons or groups of persons who are not pubic officials. However, it must be shown that the risk is real and that the authorities in the receiving state are not able to obviate the risk by providing appropriate protection.” (paragraph 40)

[97]The evidence does not indicate any unwillingness on the part of the Belgian police or other authorities to provide protection for the appellant. On her own evidence, the police seem to have been ready to take steps to follow up the assault on her, visiting her in hospital, but they were handicapped by the fact that she could not identify her assailants. As for whether the police and other authorities in Belgium would be able to provide adequate protection, there is no evidence that there is not a proper system in place there for maintaining law and order or that the Belgian system is in any way inferior to that in the United Kingdom. Moreover, I see force in the point made in the Home Secretary’s letter and reiterated in Miss Anderson’s submissions that the physical and sexual assaults were committed by Iraqi asylum-seekers and (in the case of physical assault) by the appellant’s brother back in 2007-2008 and early 2009, and that it is likely that by now those involved will no longer be in Belgium.

[98]One has to add to this the fact that the Belgian authorities did in due course provide her and her brother with a house in Wagrem, away from Antwerp, where there do not seem to have been any problems from Iraqi men. There is no suggestion that any of them found her there. It would seem that Belgium does have facilities, other than accommodation centres like that in Antwerp, where the appellant could be housed, and one would expect the Belgian authorities to take the necessary steps to achieve that while her asylum and any other claims were being considered. Nor is there any reason to believe that her brother, if he is still in Belgium, would be able to trace her, any more than he could in the United Kingdom. I cannot see that the appellant has shown that the Belgian authorities would be unwilling or unable to provide adequate protection for her from the type of assault she has described.

[99]The argument about the risk of future trafficking of the appellant is largely based on Ms. Skrivankova’s report, which identifies her as a potential victim of such future trafficking. It seems to me that two things need to be borne in mind in assessing this claim. The first is that there is no suggestion that the appellant has ever been a victim of trafficking while in Belgium. The allegations of trafficking all related to her experiences in France. Secondly, Ms Skrivankova’s opinion is significantly based on her conclusion that the appellant was indeed trafficked from France to the United Kingdom. But as I have already concluded, even on the appellant’s own version of the facts, what happened to her in France did not amount to trafficking, however disgraceful the man Omar’s conduct may have been. If she has not been a victim of trafficking in the past, one is bound to ask why she should become one now if returned to Belgium.

[100]Of course, she is a vulnerable young woman, and that is true of her while in the United Kingdom. The basis on which Ms. Skrivankova’s report suggests that the appellant may be at greater risk of trafficking in Belgium than here is that there are Iraqi men in Belgium who would be able to exploit her vulnerability, whereas she enjoys considerable protection already in the United Kingdom. I do not find that reasoning persuasive. There is an Iraqi community in this country as well as in Belgium. There is no reason to believe that the Belgian authorities, liaising with UKBA, would not take the necessary steps upon her return to afford her a similar degree of protection against such exploitation as she receives here. In neither country would that protection be absolute. It cannot be. But there is no basis for believing her to be at any greater risk of trafficking in Belgium than she is in the United Kingdom.

[101]I note that Ms. Skrivankova does not assert in her report that the Belgian authorities would not act appropriately or have failed to do so in any such cases in the past. Belgium is a signatory to the Trafficking Convention, and there is no evidence that it does not meet its obligations thereunder. The Home Secretary’s letter also makes it clear that the Belgian authorities will be provided with a copy of the appellant's witness statement describing the abuse she alleges she suffered both in Belgium and France. In all these circumstances I conclude that it has not been shown that there is a real risk of a breach of her Article 3, 4 or 8 rights because of the possibility of her being trafficked on return to Belgium.

[102]As for the risk of suicide or serious mental problems, I accept that it is necessary to take account of the appellant’s fears of a return to Belgium, however irrational they may be. That seems to me to be an appropriate addition to the emphasis placed in the case of J v Secretary of State for the Home Department

[2005] EWCA Civ 629

on whether the fear is objectively well-founded, it being said there (at paragraph 30) that if it was not, that would weigh against there being a real risk that removal would be in breach of Article 3. But in the present case the Home Secretary has proceeded on the basis that the appellant does have such a fear. Although Dr. Bell’s report was criticised, the decision-letter makes it clear that any threat of suicide or self-harm is taken very seriously and that various measures to prevent such acts would be taken if she were returned to Belgium.

[103]That is very relevant in the light of one of the other matters highlighted in the case of J by Dyson L.J., giving the judgment of the court. At paragraph 31, he said this:

“A further question of considerable relevance is whether the removing and/or the receiving State has effective mechanisms to reduce the risk of suicide. If there are effective mechanisms, that too will weigh heavily against an applicant’s claim that removal will violate his or her Article 3 rights.”

[104]In principle, Article 3 may be breached if there is a real risk of suicide as a consequence of a decision to remove, whether that risk arises on being informed of the decision, in the course of removal or after arrival in the other country. That is clear from this court’s decision in J. But one needs to distinguish, as that case shows, between “domestic” cases, where the risk is of suicide in this country on being told of the decision or of suicide in transit, and “foreign” cases, where the risk relates to the situation after arrival in the receiving country. Any Immigration Judge is entitled to take the view that the risk of suicide in the UK upon learning of a final decision to remove her would be adequately managed in this country by the relevant authorities: see J, ante, paragraph 57. There is no evidence of any suicide attempt so far in the UK by the appellant, despite the various removal directions. Moreover, the Immigration Judge would be entitled to assume that the Home Secretary would take appropriate measures to guard against any suicide attempt during the relatively brief transit to Belgium, including the provision of appropriately qualified escorts: see J, paragraphs 61 and 62. This was indeed the approach endorsed by this court in the case of Tozlukaya

[2006] EWCA Civ 379

, relied on by the Home Secretary in her decision. The decision-letter in the present case confirms that that would happen: paragraph 31. So the Home Secretary, when considering whether or not to certify, was entitled to take the view that such an approach would be adopted by an Immigration Judge on any appeal.

[105]Where the risk of suicide by the appellant is to be treated as a “foreign” case, the test is whether “substantial grounds have been shown for believing in the existence of a real risk of treatment contrary to Article 3” (see Soering v United Kingdom

[1989] 11 EHRR 439

, paragraph 91) or, as Lord Bingham of Cornhill put it in Ullah v Secretary of State for the Home Department

[2004] UKHL 26

;

[2004] 2 AC 323

, whether the appellant can show “strong grounds” for believing that she faces a real risk of Article 3 ill-treatment. The threshold is thus particularly high.

[106]The appellant places some reliance on the House of Lords’ decision in 2004 in Razgar, that is R(Razgar) v Secretary of State for the Home Department

[2004] UKHL 27

;

(2004) 2 AC 368

, where (by a majority of three to two) the House held that the Home Secretary was wrong to have certified a claim where it was properly arguable that the claimant would not receive the medical help in Germany which he needed, thus giving rise to an arguable breach of his Article 8 rights. However, as this court pointed out in J, that is a decision very much based on its own facts, and indeed one notes that there was evidence in Razgar that in Germany the claimant would not have been entitled to psychiatric treatment: see paragraph 12. In the present case, it is not asserted that the appellant would not receive any necessary psychiatric help in Belgium; Dr. Bell doubts whether such help would be obtainable in Iraq but does not question their availability in Belgium,

[107]That really takes one back to the principle set out in J and cited at paragraph 103 above, namely whether the receiving state has effective mechanisms to reduce the risk of suicide. Quite apart from Belgium’s obligations under the ECHR, Articles 2, 3 and 8, there is now in force the Reception Directive, 2003/9/EC, dealing with minimum standards for asylum seekers, which obliges that country to ensure that such persons receive the necessary health care and “other assistance to applicants who have special needs”: Article 15. Given the complete absence of any evidence to cast doubt upon the ability and willingness of the Belgian authorities to take appropriate measures to protect against the risk of suicide and to provide for the appellant’s mental health needs, it seems to me plain that the risk of suicide in Belgium or of a severe deterioration in mental health is not such as to bring this case up to the high Article 3 threshold. As Richards L.J. put it in Tozlukaya, in a passage quoted in the decision-letter in this case, it could not be said to be “an affront to fundamental humanitarian principles to return” the appellant to Belgium.

[108]The only remaining point is the somewhat subsidiary one raised by Miss Cronin as to the absence of any reference in the decision-letter to Dr. Bell’s later response to the criticisms of his report. I cannot see that that casts any real doubt on the Home Secretary’s decision. It is a well-established principle of administrative law that a decision-maker is not required to make reference to every piece of material or every document placed before him or her. The absence of such an express reference does not of itself give rise to an inference that the material or document has been overlooked and not taken into account. In any event; the Home Secretary, while critical of Dr. Bell’s report, was prepared to proceed on the basis that there was a risk of suicide or self-harm, against which risk various measures would have to be taken, I can see no force in this subsidiary point.

[109]That being so, I have come to the conclusion that the Home Secretary was entitled to certify the human rights claim as clearly unfounded. It was one which was bound to fail if put before an Immigration Judge on appeal, even if the Judge regarded the appellant as a credible witness.

Conclusion

[110]One cannot escape a feeling of some sympathy for the appellant, who on any version of events is young, vulnerable, far from most of her family and who has both experienced an abortion (albeit as a result of a consensual relationship) and suffered at least some physical assaults. But sympathy alone is not a basis for quashing the decisions by the Competent Authority and the Home Secretary. I am satisfied that those decisions were lawful and sound, and consequently for the reasons I have set out I would refuse judicial review.

A Procedural Post-Script

[111]This judgment is longer than I would have liked. That is in part due to the fact that this is technically not an appeal but the hearing of an application for judicial review. That is the result of the order, when permission to seek judicial review was granted, that the matter be retained in the Court of Appeal rather than be returned for hearing in the Administrative Court. That may well, in some cases, be an appropriate order, particularly when there is a reasonably full judgment available from the Administrative Court when that court refused permission to seek judicial review. I intend no criticism whatsoever of Thirlwell J’s judgment, which was appropriate to the then situation. But much has happened since then, and this court has found itself sitting as a court of first instance to deal with a challenge to decisions which were not even in existence when Thirlwell J. gave her judgment. It has meant that this court has had to deal at greater length than normal with the facts and with the applicable law, and with the benefit of hindsight one is bound to wonder whether that has been a sensible use of scarce resources. It also means, of course, that the appellant has effectively lost one of the possible stages of appeal. I would respectfully suggest that those dealing with applications for permission to appeal against refusals of permission to seek judicial review proceed with some caution before deciding to retain the substantive proceedings in this court.

Lord Justice Longmore:

[112]I agree.

[113]Ms Cronin’s submissions on trafficking effectively amount to saying that a woman whose ambition to get to the United Kingdom and claim asylum here can only be accomplished by having sex with the man who undertakes to transport her to the United Kingdom is ipso facto a victim of trafficking for the purpose of the Trafficking Convention. That situation (unpleasant though it is) does not, to my mind, constitute transportation or harbouring for the purpose of the exploitation of prostitution or practices similar to slavery or servitude within Article (a) of the definition in the Convention. However unpleasant the experience, it cannot be said to approach prostitution, slavery or servitude. Nor can it be justifiable to treat a woman in that situation more favourably than any other asylum seeker whose claim falls to be assessed on its own merits. Lord Justice Maurice Kay: I agree with both judgments

Cited in 14 later judgments

and 5 more of the most senior