United Kingdom – Upper Tribunal delivers ruling on international protection status determination in case of human trafficking

Thursday, September 6, 2018

On 6 September, the UK Upper Tribunal ruled on the correct approach to determining whether a person claiming to be a victim of trafficking is entitled to asylum.

The case concerned an Albanian national, who was a victim of trafficking in both Italy and her home country. In 2015 she escaped and paid to be smuggled into the UK. Upon claiming asylum she was also referred to the national framework for identifying and supporting victims of trafficking (National Referring Mechanism – NRM). Six months later the authorities made a decision on a balance of probabilities, finding that the applicant had not established that she had been a victim of human trafficking. The findings in this decision formed the basis of the subsequent decision to refuse her asylum. The applicant sought to appeal this decision.

First, the Tribunal ruled that a previous decision made within the NRM is not of primary relevance to the determination of an asylum appeal, despite previous findings by the Court of Appeal. The Tribunal referred to the Council of Europe Convention on Action against Trafficking in Human Beings, which states that nothing in the Convention shall affect the rights, obligations and responsibilities of States and individuals in international law, including the Refugee Convention.

Consequently, the UK remains obliged to act in accordance with the Refugee Convention and not to restrict the appellant's access to protection under the Refugee Convention even if she had previously had a negative trafficking decision. Moreover, the NRM’s adoption of a balance of probabilities standard of proof, rather than the lower one applicable in asylum cases, indicates that it did recognise that the two processes were to be distinguished from each other. The Tribunal then went on to apply the requisite low standard of proof (reasonable degree of likelihood or a serious possibility) for considering an asylum appeal, instead of relying solely on the trafficking decision.

Notably, the applicant’s status as a vulnerable witness, which may have affected her ability to give evidence, was also taken into account.  After considering the evidence provided by the applicant and applying this lower standard of proof, the Tribunal found that the appellant was a victim of human trafficking and therefore a member of a particular social group. It was further found that there would not be a sufficiency of protection for the appellant in Albania and that she could not relocate internally. The appeal against her asylum refusal was allowed.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.



Credibility assessment
Trafficking in human beings