ADVICE
Introduction
1. I have been instructed to provide legal advice to the Migrant Legal Project (‘MLP’) as part of
a research project on the implications of being re-trafficked for unaccompanied asylumseeking children (’UASC’) who have previously been recognised to have been trafficked.
2. The research project arose from the cases of three recognised trafficked UASC who were retrafficked. The short facts of their cases are as follows:
(a) HT. HT is a national of Vietnam who was trafficked into the UK as a child for the
purposes of cannabis cultivation. He was encountered in a cannabis factory, and then
prosecuted, convicted and sentenced to a six-month detention and training order (a
category of criminal sentence that may be imposed only on minors) for cultivating
cannabis. He was served notice of liability to removal as an illegal entrant, after
which he claimed asylum.
The Secretary of State commenced deportation
proceedings against him. A positive reasonable grounds trafficking decision was
made by the Secretary of State and, accordingly, HT was granted 45 days’ leave to
remain. Subsequently, a positive conclusive grounds trafficking decision was made
by the Secretary of State (though he was not granted the one year residence permit
which can, and often does, follow such a decision). On release from custody, he was
almost immediately re-trafficked. The Secretary of State withdrew his asylum claim
on the basis that he was an absconder. His conviction was subsequently quashed by
the Court of Appeal before he re-emerged in a cannabis factory in Cork, Ireland. He
is presently awaiting sentence having once again been convicted of cannabis
cultivation.
(b) TN. TN is a national of Vietnam who was trafficked into the UK as a child for the
purposes of cannabis cultivation. He was encountered in a cannabis factory, and then
prosecuted, convicted and sentenced to a 12-month detention and training order for
cultivating cannabis. He was served notice of liability to removal as an illegal entrant,
after which he claimed asylum.
The Secretary of State commenced deportation
proceedings against him. A positive reasonable grounds trafficking decision was
made by the Secretary of State and, accordingly, TN was granted 45 days’ leave to
remain. On release from custody, he was almost immediately re-trafficked. The
Secretary of State withdrew his asylum and trafficking claims on the basis that he was
an absconder. His conviction was subsequently quashed by the Court of Appeal. He
has now re-emerged and has made further asylum and trafficking claims.
(c) TT. TT is a national of Vietnam who was trafficked into the UK as a child for the
purposes of cannabis cultivation. He was encountered in a cannabis factory, and then
remanded in custody and served notice of liability to removal as an illegal entrant,
after which he claimed asylum. In the event, he was not prosecuted for cannabis
cultivation (at this stage). His asylum claim was refused by the Secretary of State but
he was granted a period of discretionary leave to remain until the age of 17½ in
accordance with the Secretary of State’s policy on UASC. It is not clear whether an
appeal against this decision was lodged (i.e. an ‘upgrade appeal’ under section 83
Nationality, Immigration and Asylum Act 2002). A positive reasonable grounds
trafficking decision was made by the Secretary of State (it is not clear whether this
was before or after TT was granted discretionary leave; if it was before then I presume
that he was granted 45 days’ leave to remain as a consequence of the reasonable
grounds trafficking decision). TT was then re-trafficked and the Secretary of State
withdrew his trafficking claim on the basis that he had absconded. If an appeal
against the refusal of his asylum claim was lodged, it was never heard. Subsequently,
TT was encountered in a cannabis factory, and then prosecuted, convicted and
sentenced to a 16-month term of imprisonment for cultivating cannabis.
The
Secretary of State commenced deportation proceedings against him. TT made an
application for further leave to remain, including an asylum claim and a trafficking
claim.
He was then re-trafficked again, following which the Secretary of State
withdrew his asylum and trafficking claims on the basis that he was an absconder.
His conviction was subsequently quashed by the Court of Appeal. He has now reemerged and has made further asylum and trafficking claims.
3. In short, MLP is concerned that being re-trafficked causes significant and undue prejudice to
recognised trafficked UASC.
4. I am instructed to answer the following questions:
(a) What is the legal basis for withdrawing the asylum claims of recognised trafficked
UASC, and what are the repercussions of doing this?
(b) What is the legal basis for treating recognised trafficked UASC as absconders, and
what immigration consequences does this have?
(c) How does withdrawing the temporary admission of and/or a protection application
from recognised trafficked UASC on the basis that they have absconded co-exist with
the UK’s duties under the Trafficking Directive (2011/36/EU), for example, Article 8
thereof (Non-prosecution or non-application of penalties to the victim)?
(d) Is there any way to challenge a decision on behalf of missing recognised trafficked
UASC without their prior consent?
Each question is considered in turn.
What is the legal basis for withdrawing the asylum claims of recognised trafficked UASC, and
what are the repercussions of doing this?
5. If an asylum applicant withdraws a claim for asylum, or is treated as having done so
implicitly, consideration of the claim will cease and no decision on it will be made. The legal
basis for this is paragraph 333C Immigration Rules, which provides:
‘333C. If an application for asylum is withdrawn either explicitly or implicitly, consideration of it may be
discontinued. An application will be treated as explicitly withdrawn if the applicant signs the relevant
form provided by the Secretary of State. An application may be treated as impliedly withdrawn if an
applicant leaves the United Kingdom without authorisation at any time prior to the conclusion of his or
her asylum claim, or fails to complete an asylum questionnaire as requested by the Secretary of State, or
fails to attend the personal interview as provided in paragraph 339NA of these Rules unless the applicant
demonstrates within a reasonable time that that failure was due to circumstances beyond his or her
control. The Secretary of State will indicate on the applicant’s asylum file that the application for asylum
has been withdrawn and consideration of it has been discontinued.’
There is no specific provision for implicitly withdrawing the asylum claims of recognised
trafficked UASC; the same provisions apply regardless of the characteristics of the asylum
claimant.
6. The Asylum Policy Instruction ‘Withdrawing Asylum Claims’ (26 February 2015) provides
useful guidance on implicit withdrawals at section 4. For present purposes, the following
excerpt is material:
‘4.6.2 Implicitly withdrawing asylum claims from children
It is important to exercise discretion when handling non-attendance at asylum interviews by children.
Greater sensitivity should be used and if an acceptable explanation for non-attendance is not received the
caseworker should establish all the relevant facts. This may include (but is not limited to) contacting the
child’s responsible adult, representative, social services or accommodation provider for information on
the reasons for non-attendance. If the child has failed to attend more than one substantive interview and
the caseworker is satisfied they are deliberately not attending, the claim should be treated as implicitly
withdrawn.’
While there would appear to be a discretion to find that UASC who have been re-trafficked
are not ‘deliberately’ not attended, I cannot envisage circumstances where this discretion
would be exercised where is has not been established that the child in question has, in fact,
been re-trafficked.
The ‘Withdrawing Asylum Claims’ guidance is silent on implicitly
withdrawing the asylum claims of trafficked persons.
7. The ‘Withdrawing Asylum Claims’ guidance makes it clear that provision for implicit
withdrawal under paragraph 333C Immigration Rules is based on Article 20 Procedures
Directive (2005/85/EC) which provides:
‘Article 20
Procedure in the case of implicit withdrawal or abandonment of the application
1. When there is reasonable cause to consider that an applicant for asylum has implicitly withdrawn or
abandoned his/her application for asylum, Member States shall ensure that the determining authority
takes a decision to either discontinue the examination or reject the application on the basis that the
applicant has not established an entitlement to refugee status in accordance with Directive 2004/83/EC.
Member States may assume that the applicant has implicitly withdrawn or abandoned his/her application
for asylum in particular when it is ascertained that:
(a) he/she has failed to respond to requests to provide information essential to his/her application in terms
of Article 4 of Directive 2004/83/EC or has not appeared for a personal interview as provided for in
Articles 12, 13 and 14, unless he applicant demonstrates within a reasonable time that his/her failure was
due to circumstances beyond his control;
(b) he/she has absconded or left without authorisation the place where he/she lived or was held, without
contacting the competent authority within a reasonable time, or he/she has not within a reasonable time
complied with reporting duties or other obligations to communicate.
For the purposes of implementing these provisions, Member States may lay down time-limits or
guidelines.
2. Member States shall ensure that the applicant who reports again to the competent authority after a
decision to discontinue as referred to in paragraph 1 of this Article is taken, is entitled to request that
his/her case be reopened, unless the request is examined in accordance with Articles 32 and 34.
Member States may provide for a time-limit after which the applicant’s case can no longer be re-opened.
Member States shall ensure that such a person is not removed contrary to the principle of nonrefoulement.
Member States may allow the determining authority to take up the examination at the stage where it was
discontinued.’
8. Where an asylum claim is implicitly withdrawn, though consideration of the claim will cease
and no decision on it will be made, an immigration decision will still need to be made in order
to enable to person’s removal from the UK. The ‘Withdrawing Asylum Claims’ guidance
provides:
‘4.1.1 Making an immigration decision
Following implicit withdrawal of the claim for asylum, if the claimant does not have legal status to
remain in the UK (i.e. granted leave on other grounds following a separate application or has an
outstanding application), an immigration decision should be made and removal action taken.’
9. A person who has claimed asylum in the UK cannot be removed while the claim is pending,
i.e. until he or she is given notice of the Secretary of State’s decision on the claim (section 77
Nationality, Immigration and Asylum Act 2002; paragraph 329 Immigration Rules). Nor may
the person be removed while: (a) an appeal against an immigration appeal is ongoing (section
78 Nationality, Immigration and Asylum Act 2002); or, (b) the Secretary of State decides
whether or not to treat further submissions as a fresh claim for asylum (paragraph 353A
Immigration Rules).
10. Therefore, the most significant repercussion of an asylum claim being implicitly withdrawn is
that a removal decision may be made in respect of the person in question and he or she may
become removable summarily (it is to be noted that this cannot happen immediately if the
person has extant leave to remain – for example, if they have been granted a one year
residence permit following a positive conclusive grounds trafficking decision – in which case
that leave will continue unless curtailed).
11. Of course, when a person who has been re-trafficked re-emerges, they are entitled to make
further asylum and trafficking claims and, in respect of the latter, to invite the Secretary of
State to reopen the earlier asylum claim. A refusal to do so could be challenged by way of
judicial review relying, inter alia, on the provisions of Article 20 Procedures Directive
(2005/85/EC), set out above. At the very least, the Secretary of State would have to treat the
further asylum claim as further submissions purporting to constitute a fresh claim for asylum.
As set out above, the person could not be removed until the further asylum claim had been
disposed of.
12. A further repercussion of an asylum claim being implicitly withdrawn is that asylum support
will be discontinued (though this is unlikely to be of particular, immediate concern where a
person has been re-trafficked).
13. Finally, a possible repercussion of an asylum claim being implicitly withdrawn is that,
depending on the particular facts of the case, the person might be considered to have
committed a criminal offence (e.g. knowingly entering the UK without leave to enter, contrary
to section 24(1)(a) Immigration Act 1971). However, if a person who had been re-trafficked
were to re-emerges and make further asylum and trafficking claims, and were to be successful
in establishing that they had been re-trafficked, I consider that it would be highly improbable
that they would be prosecuted for any such offence (indeed, such a prosecution would breach
Article 8 Trafficking Directive (2011/36/EU)).
What is the legal basis for treating recognised trafficked UASC as absconders, and what
immigration consequences does this have?
14. As set out above, where a person claims asylum he or she cannot be removed while the claim
is being considered. Where he or she does not have leave to enter or remain, he or she can
either be detained (which is irrelevant for present purposes) or granted temporary admission.
15. Temporary admission may be granted under Schedule 2 paragraph 21 Immigration Act 1971.
Under Schedule 2 paragraph 21(2) Immigration Act 1971, various conditions may be attached
to a grant of temporary admission, such as a requirement that the person resides at a particular
address or regularly reports. Absconders and those in breach of other conditions of temporary
admission may be detained, refused leave and summarily removed (Schedule 2 paragraphs 6,
8, 21(1) and (4) Immigration Act 1971).1
16. The legal basis for treating recognised trafficked UASC as absconders is quite simple: where,
in breach of the conditions of his or her grant of temporary admission, a person fails to
maintain contact with the Secretary of State, he or she will be classified as an absconder.
Unfortunately, the fact that the person’s legal representatives harbour an overwhelming
1
Further, depending on the facts of the case, it is possible that the person may be treated as an illegal entrant, either on the
basis that he or she was seeking entry by deception or that by breaking conditions of temporary admission he or she has
‘otherwise entered’ the UK without obtaining leave to enter (see Akhtar v Governor of Pentonville Prison [1993] Imm AR
424, CA).
suspicion that he or she has been re-trafficked is likely to be wholly irrelevant to the question
of whether or not he or she is an absconder (because, at the point of absconding, it cannot be
established that the person has been re-trafficked).
17. It is to be noted that if, before he or she is re-trafficked, the trafficked person has been granted
a one year residence permit following a positive conclusive grounds trafficking decision, then
the above consequences would not follow (because he or she would not be in the UK pursuant
to a grant of temporary admission and would not, therefore, have absconded in breach of
conditions at law).
18. Where a person who has been re-trafficked but has been treated as an absconder re-emerges, it
is possible that he or she will be detained (though neither children nor persons who have been
identified as victims of trafficking should not be detained: chapter 55.10 Enforcement
Instructions and Guidance) and, more significantly, that steps will be taken to effect summary
removal. In such circumstances, it would be necessary immediately to make further asylum
and trafficking claims and seek a further grant of temporary admission or immigration bail.
19. Though in ordinary circumstances absconding can have a catastrophic impact on an asylum
claim, if a person were to be successful in establishing that they had not absconded but, rather,
had been re-trafficked, I consider it to be highly unlikely that any negative immigration
consequences would flow from the person having been re-trafficked (of course, if they were
not successful in establishing this then, at law, they would not have been re-trafficked and,
accordingly, they would be treated as ordinary absconders).
How does withdrawing the temporary admission of and/or a protection application from
recognised trafficked UASC on the basis that they have absconded co-exist with the UK’s duties
under the Trafficking Directive (2011/36/EU), for example, Article 8 thereof (Non-prosecution
or non-application of penalties to the victim)?
20. Article 8 Trafficking Directive (2011/36/EU) provides for non-prosecution and nonapplication of penalties to established trafficked persons in respect of crimes and penalties that
occurred as a direct consequence of the established trafficking situation that he or she
experienced:
‘Member States shall, in accordance with the basic principles of their legal systems, take the necessary
measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on
victims of trafficking in human beings for their involvement in criminal activities which they have been
compelled to commit as a direct consequence of being subjected to any of the acts referred to in Article
2.’
21. At the point that the temporary admission and/or protection applications of recognised
trafficked UASC are withdrawn, it has not been established that they have been re-trafficked
or committed crimes/incurred penalties as a direct consequence of an established trafficking
situation that they have experienced. An overwhelming suspicion that a person has been retrafficked is simply not sufficient to seek to rely on the provisions of this Article.
22. Of course, once the person who has been re-trafficked re-emerges, he or she can rely on the
provisions of Article 8 Trafficking Directive (2011/36/EU) in respect of any crimes and
penalties that occurred as a consequence of the re-trafficking (as long as the re-trafficking is
established).
23. Further, depending on the facts, it is possible that clear breaches of the protection provisions of
the Trafficking Directive (2011/36/EU)2 might assist the re-trafficked person in making a civil
claim for damages on re-emergence (though a detailed consideration of this is beyond the
scope of this advice).
24. For the most part, however, like Article 8, the provisions of the Trafficking Directive
(2011/36/EU) are retrospective in that they concern how to deal with established trafficked
persons and the consequences of that established trafficking situations that they have
experienced.
Is there any way to challenge a decision on behalf of missing recognised trafficked UASC
without their prior consent?
25. The short answer to this question is no.
26. If an asylum claim is implicitly withdrawn before a decision on it has been made, then it
would not be possible to bring an appeal (because there would be no decision to appeal
against). In theory, the remedy would be a judicial review challenge to the decision to
implicitly withdraw the asylum claim. The requirement that legal representatives must act
with their clients’ authority and on their clients’ instructions is a fundamental principle of our
legal system. Therefore, putting to one side the questionable merits of such a challenge in
2
For example, Article 13 (General provisions on assistance, support and protection measures for child victims of trafficking
in human beings) or Article 16 (Assistance, support and protection for unaccompanied child victims of trafficking in human
beings).
circumstances where the person in question has – in law at least – absconded (i.e. where is
cannot be established that the person has, in fact, been re-trafficked), it is not permissible for a
legal representative to issue a claim for judicial review without a client.
27. While a person’s legal representatives might harbour an overwhelming suspicion that he or she
has been re-trafficked, and might, accordingly, wish to challenge a decision to implicitly
withdraw his or her asylum claim (or the decision to treat the person as an absconder), the
reality is that the fact that he or she has been re-trafficked simply this cannot be established
until he or she re-emerges.
28. If a decision refusing an asylum claim has been made and appeal proceedings are underway, I
consider that it would be possible to continue to represent the re-trafficked person, at least as
far as his or her First-tier Tribunal hearing and, depending on the facts and particular
circumstances, possibly further.3 However, I cannot envisage a situation where this approach
would be in the best interests of the re-trafficked person: first, because he or she would not be
able to give live evidence (something which is catastrophic when one considers where the
burden of proof lies in asylum appeals, i.e. that the appellant must establish that he or she is
entitled to the protection of the Refugee Convention); and, secondly, because without
instructions his or her absence could not properly be attributed to having been re-trafficking
(rather, he or she would be considered by the Tribunal to be an absconder).
29. In my opinion, in such circumstances, it would be preferable for the asylum appeal to be
withdrawn, and for further asylum and trafficking claims to be made on re-emergence.
Conclusion
30. Recognised trafficked UASC are undoubtedly caused significant and undue prejudice when
they are re-trafficked. However, given that it cannot be said with certainty that the person has
been re-trafficked until he or she re-emerges, I cannot see how the Secretary of State’s current
approach can be said to be unlawful.
31. While it would be open to the Secretary of State to take a different, fairer approach (for
example, by freezing asylum and trafficking claims made by recognised trafficked USAC who
disappear, at least for a period), it seems to me that this is a campaigning issue rather than
grounds for a legal challenge.
3
Presuming that he or she had provided a detailed and comprehensive letter of authority.
32. Please contact me for further assistance or clarification of the matters set out in this advice.
Bijan Hoshi
Garden Court Chambers
2 June 2015