United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

Upper Tribunal (Immigration and Asylum Chamber) Appeal Number: AA/00556/2016

 

 

THE IMMIGRATION ACTS

Heard at Bradford	Decision & Reasons Promulgated
On 8 June 2017	On 23 June 2017

 

 

Before

 

UPPER TRIBUNAL JUDGE HANSON

 

 

Between

 

YA

(anonymity direction made)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the Appellant: Mr Tetty instructed by Howells Solicitors

For the Respondent: Ms Petterson Senior Home Office Presenting Officer

 

 

DECISION AND REASONS

 

1.                   This is an appeal against a decision of First-tier Tribunal Judge Saffer ('the Judge') promulgated on 30 November 2016 in which the Judge dismissed the appellant's appeal on all grounds.

2.                   Permission to appeal was initially refused by another judge of the First-tier Tribunal although granted on a renewed application by Deputy Upper Tribunal Judge Chapman in the following terms:

 

1.        The Appellant is a national of Ghana, born on [ ] 1972. She seeks permission to appeal to the Upper Tribunal against a decision of First-tier Tribunal Judge Saffer dated 30 November 2016, in which he dismissed her appeal against the Respondent's decision to refuse her asylum.

 

2.        The grounds in support of the application for permission to appeal assert that the First-tier Tribunal Judge erred materially in law: (i) at [21] in his consideration of the risk of re-trafficking; (ii) in his finding at [26] that the Appellant could live with her mother again in Ghana; (iii) at [28] in misdirecting himself by failing to apply the guidance set out in EK (article 4) Tanzania [2013] UKUT 313 (IAC).

 

3.        I consider that the decision of First-tier Tribunal Judge Saffer does disclose arguable material errors of law in respect of the second and third reasons he has provided at [21] for not accepting the Appellants evidence that the men who trafficked her reappeared at her mother's village looking for her, for the reasons set out in the first ground of appeal. It follows that, with respect to ground 2, the Judge's findings at [26] is arguably flawed on the basis that if the Appellant is at risk of persecution from her former traffickers she would not be able to stay with her mother. In respect of the third ground of appeal, whilst it is not clear whether the decision in EK (Article 4 ECHR: Anti-Trafficking Convention) Tanzania [2013] UKUT 313 (IAC) is applicable, given that the Appellant has been granted discretionary leave and has thus arguably had " the benefit of the recovery aspect of the reparation to which she is entitled arising from the breach of Article 4 of the Convention" it is arguable that to return her while she is still in receipt of counselling would " not be in conformity with the obligation to return with due regard for her dignity" [67]. I also observe that at [22] the Judge failed to give any reasons as to why he did not accept the evidence of Dr Fumati.

 

4.        Permission to appeal is granted for the reasons set out at [3] above.

 

3.                   The grant of permission is opposed by the Secretary State who asserts the First-tier Judge directed himself appropriately, that it had previously been found that the appellant could return to her mother and that the Judge rejected the latest assertion that the appellant's traffickers had reappeared at her mother's house which it is stated has been adequately reasoned. In relation to EK it is asserted the appellant's circumstances are very different from those in that case where that appellant had very serious health issues. It is not disputed the appellant had received counselling but the respondent refers to the fact it was limited to two sessions over five months and that her circumstances were not such as to amount to a threat to her dignity as found in EK. It is stated in the Rule 24 response in respect of the appellant's behaviour on return, that the Judge was entitled to reject the evidence of Dr Fumati and that following Devaseelan this was a position properly open to him.

 

Background

 

4.                   The decision under challenge before the First-tier Tribunal is the refusal of an application for leave to remain on human rights grounds dated 24 March 2016. The appellant's immigration history is set out in Annex A of the reasons for refusal showing she entered the United Kingdom illegally on 1 November 2009 after which she was convicted and a deportation orders signed on 2 March 2010. On 16 June 2010, the applicant claimed asylum and on 10 July 2010 a referral was made on the basis the appellant was a potential victim of trafficking. On 9 December 2010, a conclusive decision was reached and on the 20 September 2011 asylum was refused. The appellant's appeal against the refusal was dismissed and she became appeal rights exhausted on 20 January 2012. The appellant was, however, granted three years' discretionary leave as it was accepted she is a victim of trafficking to give her the opportunity to remain in the UK and take advantage of the support open to her and to enable her to pursue her asylum claim.

5.                   The decision-maker concluded that the conditions of the previous grant no longer prevail and proceeded to consider whether the applicant qualified for leave to remain in the United Kingdom on any other basis.

6.                   It was noted by the decision-maker that the applicant was granted discretionary leave from 25 November 2011 to 24 July 2014 and that the further application was submitted in time. Having considered the matter in detail, the decision-maker was not satisfied the appellant was entitled to any further period of leave.

7.                   The Judge noted the nature of the appellant's claim which is set out in the decision under challenge in the following terms:

 

9. The appellants claim is set out in the letter with her application, and her statement and oral evidence. I will not summarise the evidence that predated the determination following the hearing on 14 December 2011 (AA/11118/2011) although I note from the report from Catherine Bell a detailed summary of the appalling treatment to the appellant suffered during the 6 years she was forced to work as a prostitute in Holland, Spain and Britain.

 

10. I note from the refusal letter that it is accepted she entered the United Kingdom in March 2009. She was jailed for 12 months for using a false passport whilst trying to leave the country for Holland. That resulted in deportation proceedings which were followed by an asylum claim on 10 June 2010. She was found to be a potential victim of trafficking. Her asylum claim was refused and the appeal dismissed. She was granted discretionary leave to remain on 25 November 2011.

 

11. It was found at the 2011 hearing that she remained in regular communication with her mother and daughter. She conceded that she would be able to return to live with them. Her mother lived in a village close to a city a significant distance from where she met the men who trafficked her. It was found that she would have family support available. It was not accepted that anyone would be aware other than her mother that she had worked as a prostitute. She would not tell anyone it is not reasonably likely anyone would find out about it will therefore have any negative views on her. There was therefore no real risk from the general population or traffickers who would not be aware that she had returned given the lack of time they spent in the country and distance they were from her mother's village.

 

12. In the letter with her application (23 July 2014) she sought an extension of the discretionary leave to remain. She has a well-established private life here as she has worked, goes to church regularly, and has established social relationships. She is receiving ongoing treatment for hepatitis.

.

13. In her statement (24 June 2016) she said she is scared about being returned to Ghana. She thinks of her traffickers all the time. They took her son away while she was in Holland. She is happy here. She found work as a cleaner at a college but had to stop working when her conviction was discovered. She is studying English, goes to church, and has friends. She would not have the equivalent support in Ghana. The people who trafficked her say that she owes €45,000 and they will try and find her.

.

14. In her statement (22 November 2016) she said that she is receiving help for low mood, anxiety, and depression from a psychological well-being practitioner she has been seeing every 2 weeks since July 2016 for counselling. She takes regular medication for diabetes, hepatitis, high blood pressure, and a vitamin D deficiency. She rarely leaves the house unless she has to attend appointments as she feels isolated as a friend works full-time. She had been introduced to a volunteer befriender to help as a companion. She finds work difficult because of her illnesses. She is worried about her son and being sent back to Ghana.

 

15. In evidence she said that her mother, daughter, and brother live in Ghana. She is in contact with them. She could not live with them due to her problem with people there. About a year ago the men came looking for her. She did not mention it in her statement as she was not asked and did not realise it was not relevant. From the description given by her mother she knew it was the same men. Her mother said she had not heard from her for a while. Her mother has just one room and is 80. Her (i.e. the appellants) daughter is 26 and works as a nurse. They last spoke yesterday and speak maybe every 2 weeks. She rents a room where she works and has a child. She (i.e. the appellant) would work if she had permission to do so. She studied English for six months up until one and a half months ago. Her mother, daughter, and brother live in different provinces or towns quite apart from each other. Her brother does not work and cares for his 2 children.

 

16. Dr Mattia Fumanti wrote (20 July 2016) that he is an anthropologist who has undertaken research relating to Ghana for 16 years. He notes the US State Department report that Ghana is a source, transit, and destination country for women subjected to sex trafficking. They are recruited and sent abroad. The government does not meet the minimum standards for eliminating trafficking but is making significant efforts to do so. He adds that the police are corrupt. She left home at 18 and would be seen as someone who cut important cultural and social ties with her family. Her lack of contribution through sending remittances would have an impact on her moral standing within the family and community. She would face destitution and would experience animosity in the village. She would feel compelled to divulge her personal circumstances overseas and give a reason for her sudden return. Her psychological well-being will be placed under extreme strain. There is no real welfare provision and great competition for jobs. She would have difficulty setting up a business. Access to good quality healthcare in rural areas remains a problem. She would not have access to adequate health care for hepatitis unless she had a secure and well-paid job. Mental health services are woefully inadequate with only 12 psychiatrists for 24 million people, three public psychiatric hospitals, and no form of social assistance for mental patients. Outreach programs are very scarce.

.

17. Rachel Mullan-Feroze, service manager at Ashaina Sheffield, wrote (undated) that the service works with women who have been trafficked. Colleagues have worked with the appellant to identify her needs. The appellant remains distressed, tearful, and agitated due to her circumstances, and requires ongoing support. Letters of support were written by Pastors in the Church and Jean Conroy.

 

18. Payslips, certificates relating to courses in relation to studying English and cleaning and hygiene, and medical referral letters noting her diabetes, and correspondence relating to her attendance as an outpatient for hepatitis infection treatment and psychological counselling were noted.

 

8.                   It is not suggested in the grounds of appeal that the Judge's summary of the appellant's claim is in anyway inaccurate or misleading. Having considered the evidence in the round the Judge considers the merits of the claim by reference to the protection element, the Immigration Rules, Qualification Directive and on human rights grounds.

9.                   In relation to the protection element the Judge finds at [21 - 23]:

 

21. I do not accept that it is reasonably likely those who previously trafficked the appellant tried to find her last year for the following reasons. Firstly, despite her knowing the importance of this to her claim to be able to remain here she chose not to mention it until the hearing. It was not in her application. It was not in her statements. It was not even in her evidence in chief. She has been through the court process before and in my judgment would have been aware of the significance of that evidence. Secondly, I do not accept it is reasonably likely that out of the blue many years after she had fled from the clutches of the people who trafficked, they would suddenly appear at her mother's village. The fact that re-trafficking occurs in Albania does not necessarily mean it is reasonably likely to occur in Ghana. Thirdly, she is in touch with her mother but has not obtained a letter from her confirming what had occurred despite this happening a year ago. Whilst I accept that there is no obligation to obtain evidence from a persecutory home country, she does not fear her mother, is in touch with her, and this evidence would have been readily available.

.

22. It is not reasonably likely anyone will have an adverse interest in her. I do not accept the evidence of Dr Fumanti that she would feel compelled to disclose what she had been doing since she left the village when she was 18, what she had been doing in Europe, and why she had returned. While she does not have to lie about her circumstances, I do not accept she would have any intention of telling anybody what happened. She would not therefore have to change her behaviour or lie. I do not therefore accept that she would need to seek police protection or internally relocate away from her mother's.

 

23. The appellant has failed to establish that she is a refugee.

 

10.               The appellant claimed in the grounds that the Judge made a number of errors in [21] by substituting the reasoning of the appellant and replacing it with his own reasoning and omitting to provide adequate reasons.

11.               The Judge does not err by requiring the appellant to corroborate her claim and not accepting it unless she does. The Judge acknowledges there is no duty to corroborate a claim. The Judge makes a factual comment that despite being aware of the ongoing proceedings the appellant failed to produce evidence which would have been readily available. This finding has to be read in conjunction with other observations regarding the claim made by the appellant at the very last minute, and during the hearing, that the men who trafficked her previously had visited her mother's property looking for her. The Judge was fully entitled to express concern about such an important statement made very late in the day when ample opportunity had existed for this matter to be raised previously.

12.               There are a number of reported decisions relating to the impact of a failure to mention earlier matters which are later relied upon, including ND (Afghanistan) v Secretary of State for the Home Department [2006] EWCA Civ 1363 in which the Court of Appeal said the adjudicator was entitled to take the view that injuries were not inflicted in the circumstances described by the appellant, particularly in light of the fact that he only revealed the incidents of torture during a consultation his doctor rather than at an initial interview. At interview the appellant had failed to mention being hung up by the wrists for a long time and hung up by the heels for four or five hours.

13.               In AM (Iran) v Secretary of State for the Home Department [2006] EWCA 1813 the Iranian appellant did not mention problems arising from his possession of the satanic verses until after the asylum interview. The Court of Appeal upheld the judge's decision to reject the appellant's account on that basis and observed that the appellant had given a detailed and comprehensive account of why he had left Iran at interview, an account which differed entirely from the explanation he proffered five weeks later: this was not a case in which the appellant had been silent and the reasons for his asylum claim only became clear later.

14.               In HN v Sweden (Application no. 30720/09) ECtHR (Fifth Section) the Swedish Migration Board had found the appellant was not credible for various reasons. That was upheld by the ECtHR who noted that many of his statements were vague and lacking in detail and had he been subjected to the events alleged, it would be reasonable to assume that he could provide more specific information. In particular, it was thought remarkable that, although he had escaped from prison, where he had allegedly been tortured, just about two weeks before his arrival in Sweden, he apparently made no attempt to draw the migration authorities' attention to possible injuries, for instance by undergoing an initial health examination.

15.               The Judge was fully entitled to make an adverse credibility finding in relation to the claim the men the appellant had been trafficked by had called at her mother's property looking for her.

16.               In relation to the Judges rejection of the evidence of Dr Fumanti, a judge is entitled to depart from the evidence of an expert but must give adequate reasons for doing so. The Judge did not accept that the appellant will be required to tell those in her village or elsewhere that she had been re-trafficked and what had occurred to her. It has not been made out that there will be any compulsion to do so that the appellant could not properly resist. The Judge notes there will be no obligation upon the appellant not to lie. This is a situation that normally only exists in relation to a fundamentally held belief such as a person's religion, ethnicity, or sexual identity, which it has been accepted a person cannot be expected to lie about, or hide, if the reason for doing so is to avoid persecution - HJ (Iran) refers. This is not a case, however, in which the appellant was trafficked or forced into prostitution as a result of a fundamentally held belief. The appellant is a victim of crime and of the intention of the criminal gangs who are those who should be properly sentenced for their activities. As the appellant would not seek to change her behaviour or have to admit what she does not need to admit the Judge was entitled to find that she would not be at risk from those within the family and community, such as to entitle her to a grant of international protection. No arguable legal error is made out in relation to this element of the case.

17.               As the finding the appellant was at risk from her traffickers has not been found to be credible, for sustainable reasons, the conclusion of the Judge at [26] that the appellant could stay with her mother was also reasonably open to the Judge, where there will be no real risk of being discovered by the men who previously trafficked her.

18.               It is not disputed that if a person has been trafficked in the past there may be a possibility of re-trafficking, but the issue in the appeal before the Judge was whether the appellant had discharged the burden of proof upon her to the required lower standard to show there was a real risk that she would be re-trafficked. The new evidence before the Judge was the claim that people had been to the appellant's mother's house. The remaining material was that considered and rejected by the original judge of the First-tier Tribunal. As the Judge considered the evidence with the required degree of anxious scrutiny and has given adequate reasons for the findings made with regard to this piece of evidence, the weight to be given to the evidence was a matter for the Judge.

19.               Mr Tetty asserted in his submissions that as the appellant was granted discretionary leave and had been honest in relation to risk, the Judge needed to do more. It was also asserted that there was risk on return to the appellant's daughter i.e. a risk to the mother and in the alternative to her daughter. Mr Tetty stated the Judge erred in failing to assess the risk to the daughter too.

20.               Whether if the alleged risk exists other family members will be affected is not the determinative factor. What is determinative is whether the evidence established there was a credible real risk to the appellant on return in the first place, of which it was found there was no evidence.

21.               Mr Tetty also submitted the Judge erred as the appellant claimed she could not support her daughter and the Judge should have made clear whether this element of the claim was accepted or rejected. It was asserted the Judge failed to consider the daughter's circumstances. [8] of the grounds seeking permission to appeal asserted the Judge erred and failed to make clear findings having regard to the account of the mother's circumstances and to determine whether the appellant could reasonably be required to re-join her mother in Ghana.

22.               In reply to questioning from the Tribunal, it was established that the daughter being referred to is an adult in Ghana. There is reference to a daughter being a qualified nurse in Ghana and it has not been made out the conclusion by the Judge, based upon the evidence made available to him, establishing it would not be unreasonable for the appellant to return to her mother's address where she had lived previously is infected by arguable legal error.

23.               In the reasons for refusal the Secretary of State found there will be no significant obstacles to the appellant's reintegration into Ghana, a country where the appellant had spent the majority of her life and where she had family including her children. It was not found that exceptional circumstances existed to warrant a grant of leave outside the Rules. It was clearly an issue in the appeal that the respondent proposed returning the appellant to Ghana on the basis of the available support and the fact it was her country of origin. It is not disputed that the appellant could physically return to Ghana, as the Judge found, and thereafter if she was claiming that it will be unduly harsh or unreasonable she had to establish a basis on which she was entitled to a grant of leave to remain where no other right to make such a claim existed. The only available ground will be in relation to Article 3 destitution or Article 8 on the basis of moral and physical integrity, neither of which were adequately established before the Judge.

24.               The Judge considered the appellant's position and the existence of accommodation as well as her mother, daughter, and brother and his children, all of whom live in Ghana [32]. The evidence did not support a finding that the appellant will be without support or assistance on return.

25.               In relation to the EK point, it was argued that the case law supports a finding it is not acceptable to compromise a person trafficked and that such a person is able to benefit from support available in United Kingdom. It was accepted there was some interruption to the appellant's treatment in the United Kingdom but stated this was because she moved accommodation and thereafter could not get access to support, although subsequently obtain the same. It is argued that the ongoing support amounted to a continuity of care.

26.               Mr Tetty argued the Judge erred as there should not be discrimination against people who were moved by the Secretary of State which caused a break in their care to occur.

27.               The medical evidence before the Judge showed ongoing therapy which was a form of intervention from which the appellant has benefited.

28.               It was argued on the appellant's behalf that the decision in Devaseelan did not tie the hands of the Judge and that the Judge failed to consider this decision in context.

29.               The Judge was aware of the support the appellant was receiving, finding in [28]:

 

28. The medical conditions plainly come nowhere near the relevant thresholds established in cases such as N (see [20]) and GS (India) and others v SSHD [2015] EWCA Civ 40. Indeed, Mr Tetty did not argue that it did. I am satisfied given that she can work, should be able to obtain some treatment for her medical ailments. It would not be as good as here, but I am satisfied that she could get it. Once she realises that there is no real risk from those who trafficked, I am satisfied that it is reasonably likely she will not need the level of counselling currently provided. I am satisfied that should she choose to live with or near her daughter, she will be able to be provided with additional support required as her daughter is a nurse.

 

30.               Within the appellant's evidence before the Judge was a letter from Touchstone (Psychological Therapies) dated 30 August 2016 referring to the appellant attended a mental health assessment on 7 June 2016 and that she was suitable for 1:1 guided self-help sessions (low intensity therapy) and had her first appointment on 28 July 2016. It is said the appellant's main problem is low mood and anxiety symptoms spending a lot of time thinking about her difficult past experiences. It is stated appointments are every fortnight for one hour duration with an interpreter present.

31.               There is evidence of support regarding physiological services at the Sheffield Teaching Hospitals and a note confirming that the counselling the appellant was receiving at that time occurred as a result of the end of a relationship he had formed in the United Kingdom which it was submitted by Mrs Petterson separated these issues from any continuing support due to trafficking which had been completed and finished in 2009.

32.               It is not made out the Judge misapplied or failed to understand the application of the Devaseelan principle. All bar the claim that the men came to the appellant's mother's property in Ghana are issues that were adequately considered by an earlier judge. The Judge gave proper reasons for dismissing the appellant's claim which, as it has not been found to be credible, can only be viewed as evidence introduced to try and establish that a place to which the appellant could go would not be available to her.

33.               It is important to read the decision as a whole. It is not disputed the appellant may have a subjective fear of return on account of the fact she was trafficked from Ghana. This point is not disputed. It is not disputed the appellant left Ghana as a young woman before being trafficked to various countries in Europe which would have had an adverse impact upon her which, again, is not disputed. It is accepted it is unreasonable to expect the appellant to be 'healed' in the same way physical injury or a cut may heal as part of the mending process as psychological trauma and hurt can take a considerable period of time to resolve.

34.               Although the appellant may have been reluctant to make disclosure with regard to what happened to her in the past, what was not made out was that there was any reason why the new element of the claim considered and rejected by the Judge could not have been mentioned before, if true.

35.               It is not disputed that the appellant's relationship in the United Kingdom ended and she may have suffered upset and or distress when this occurred. The suggestion by Mr Tetty that this cannot be treated in isolation but rather needs to be viewed as a continuation of the appellant's need for ongoing support as per EK is not made out. There is insufficient evidence before the Judge to warrant such a finding being made.

36.               Whilst parts of Ghana have been identified as areas where trafficking exists, the Judge considered whether this particular appellant is at risk of being re-traffic on return to Ghana. The conclusion she is not is, on the evidence, one fully open to the Judge.

37.               Whilst the appellant may have needs, and has received support from counselling services, it has not been made out any credible issues have arisen such that the extent of the need requires a granted discretionary leave to enable the appellant to engage with the Trafficking Convention by way of avoiding being removed. It was submitted that if the appellant has more time in the United Kingdom the Convention is not likely to be engaged. Mr Tetty submitted the need for a short period of discretionary leave should have been recognised and granted by the Judge, but it has not been made out any such need was proved or when any such period of leave was likely to end or when the appellant will 'recover'.

38.               If the matters for which the appellant was last receiving support relate to the impact of the breakdown of a relationship, even though the appellant herself has been affected by what occurred in the past, Ms Peterson's submissions that what has been described does not relate to the trafficking incident but rather associated domestic concerns, may have arguable merit. If they are not trafficking issues but issues arising from the breakdown of the relationship any right to remain falls to be considered as a normal medical case pursuant to Article 3 of Article 8, as indeed the Judge did. The conclusion that the required threshold had not been breached on the evidence, such as to warrant a finding the appellant was entitled to a grant of leave on this basis, has not been shown to be arguably irrational or contrary to the evidence.

39.               In AA (Uganda) [2008] EWCA Civ 579, a case involving relocation on return of a young woman trafficked from Uganda, where the evidence indicated that in consequence of a lack of support in the place of relocation a woman might be obliged to resort to prostitution to survive, Lord Justice Buxton said "... Even if that is the likely fate of many of her countrymen I cannot think that either the AIT or the House of Lords that decided AH(Sudan) would have felt able to regard enforced prostitution as coming within the category of normal country conditions that the refugee must be expected to put with. Quite simply there must be some conditions in the place of relocation that are unacceptable to the extent that it would be unduly harsh to return the applicant to them even if the conditions are widespread in the place of relocation."

40.               The finding by the Judge that the appellant had not established that conditions in the place of relocation were unduly harsh was a finding arguably open to the Judge and one not shown to be affected by arguable legal error.

41.               In EK (Article 4 ECHR: Anti-Trafficking Convention) Tanzania [2013] UKUT 313 (IAC) the Tribunal held that (i) Trafficking, as defined in Article 3(a) of the Palermo Protocol of 2000, falls within the ambit of Article 4 of the ECHR (prohibition of slavery and forced labour), as held in Rantsev v Cyprus and Russia [2010] ECHR 22. (ii) There is no distinction, for the purposes of Article 4, between a domestic worker who was trafficked by way of forced labour and one who arrived voluntarily and was then subjected to forced labour. (iii) Quite apart from the duties arising under Article 4, which in particular are set out in IDIs, the Secretary of State's duty to provide assistance under the Anti-Trafficking Convention is engaged no later than the point at which a decision is made that there are conclusive grounds to believe a particular appellant to be a victim of trafficking. (iv) The duties arising under the Convention include an obligation to adopt such measures as may be necessary to assist victims in their physical, psychological and social recovery (Article 12 paragraph 1) and to issue a renewable residence permit to victims if their stay is necessary owing to their personal situation (Article 14), which must include consideration of his or her medical needs. (v) The immigration decision in the present case was made without taking account of (a) the link between the appellant's precarious state of health and the breach of the respondent's protective obligations, in terms of her policy regarding foreign domestic workers and Article 4 of the ECHR; and (b) the duties engaged under Articles 12, 14 and 16 of the Anti-Trafficking Convention. As a result, that decision was not in accordance with the law. (vi) Where there is no error of law in a First-tier judge's conclusions on a discrete issue or issues, the conclusion that there is an error in respect of another issue or issues does not require a re-visiting of the issue(s) where no error was found, when the decision is re-made. Kizhakudan [2012] EWCA Civ 566 distinguished.

42.               In this appeal the respondent was aware of her duties arising under the Convention and granted the appellant a period of discretionary leave as was deemed necessary to assist the appellant in her physical, psychological and social recovery (Article 12 paragraph 1). The therapy the appellant received as a result of the assistance provided did not require the respondent to renew a residence permit as it was not found the appellant's continued stay is necessary owing to her personal situation (Article 14), which includes consideration of her medical needs. There is clearly a connection between the Convention identifying the need for assistance to be provided to victims of trafficking to aid physical, psychological and social recovery arising from their previous experiences. As the appellant was granted an initial period of discretionary leave, together with the ability to apply for an extension, albeit that it was refused leading to the impugned decision challenged by way of appeal, it is arguable as Deputy Upper Tribunal Judge Chapman identified in the grant permission that it is not clear whether EK is applicable to this case.

43.               It was not made out before the Judge that even if the appellant was not able to continue with the counselling services arising as a result of the breakdown of her relationship in the UK there would a lack of conformity with the obligation to return with due regard to the appellant's dignity.

44.               Having considered the challenge to the decision with great care, in light of the previous history, it is clear the appellant's claim to have been a victim of trafficking for sexual exploitation was accepted and that the period of discretionary leave granted was appropriate to enable the appellant to access support services in the United Kingdom. It is also clear the appellant was given the opportunity to apply to extend such period of discretionary leave but that application was rejected by the respondent as the appellant had not established that she was entitled to any further grant of leave on the facts. It is clear the appellant was provided with an effective remedy to challenge the decision by way of appeal to the First-tier Tribunal. It is clear the Judge considered the evidence made available with the required degree of anxious scrutiny and that, although the appellant clearly disagrees with the Judges findings, she has failed to establish any arguable legal error material to the decision to dismiss the appeal.

45.               The appellant may wish to stay in the United Kingdom but fails to establish any legal obligation upon the Secretary of State to facilitate the same.

 

Decision

 

46.               There is no material error of law in the First-tier Tribunal Judge's decision. The determination shall stand.

 

Anonymity.

 

47.               The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005. I make such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

 

 

 

 

Signed.......................................................

Upper Tribunal Judge Hanson

 

Dated the 20 June 2017