Amidst the harrowing tales of human trafficking, a beacon of hope emerges with the outcome of a successful asylum appeal case of an individual who had endured the horrors of modern-day slavery. The Upper Tribunal’s landmark decision overturns a previous ruling. This new ruling recognises the plight of our client, a Chinese national who was trafficked into the country under the guise of debt repayment.
The appellant’s journey from victim to survivor is a testament to her resilience and the pursuit of justice. This article delves into the details of her ordeal, the legal battle for asylum, and the implications of this victorious asylum appeal for future trafficking survivors seeking refuge and redemption in the United Kingdom.
Background of the case
The individual appealing is a Chinese national, born in 1975, who was trafficked into the United Kingdom in December 2013 under the guise of repaying a debt incurred by her husband. She was trafficked into prostitution by the trafficker and forced to perform unpaid sex work. After a police raid on the brothel where she was held, she was rescued and freed.
Subsequently, she claimed asylum, citing ongoing fear of the loan sharks responsible for her trafficking. While she was recognised as a victim of modern slavery after a referral to the Single Competent Authority in January 2022, her asylum application was initially refused on 02 April 2022. However, upon appeal, the First-Tier tribunal’s decision on 14 June 2023 was found to contain a legal error. The Upper Tribunal granted permission to appeal, leading to a decision in favour of the appellant on 10 October 2023.
Facts of the case
The appellant lived in China with her ex-husband and son before being trafficked to the United Kingdom. The ex-husband had struggled with employment, drinking, and gambling since 2006, often becoming abusive when intoxicated. His financial troubles escalated, leading him to borrow large sums of money. This escalated to the point where he eventually owed 100,000 RMB to the loan shark with interest payable. To repay this debt, he borrowed even more, placing the appellant in a precarious situation. Loan sharks began harassing the appellant regularly, visiting and damaging her home, frightening her son, and physically harming her.
In 2013, the idea of going to the UK for work was proposed by the loan sharks, promising high-paying jobs. They arranged for the appellant to travel with a man to the UK, where upon arrival, she was introduced to a couple who forced her into prostitution where she was taken to a brothel. Despite initial refusal, she was coerced through violence, citing her inability to repay her ex-husband’s debt as justification.
Following a police raid on the brothel in 2014, the appellant was taken to the police station but did not seek asylum due to fear and lack of knowledge about the asylum process. After leaving the station, she found herself homeless until meeting another Chinese national who offered her shelter and food in exchange for household help.
The appellant claimed to fear returning to China, believing the loan sharks will locate and harm her for escaping the brothel and failing to repay the debt. Additionally, she fears further abuse from her ex-husband upon her return.
The issues of the case
The issues in disputes were whether:
1. The Appellant has a well-founded fear of persecution or faces a real risk of serious harm in China.
2. The Appellant can obtain sufficient protection in China from the identified risks.
3. The Appellant can reasonably internally relocate to escape those risks.
4. The Appellant would face very significant obstacles to integration.
5. The Appellant’s removal is a disproportionate interference with Article 8 ECHR.
How we dealt with the issues
Although it was acknowledged that the appellant had fallen victim to modern slavery due to outstanding debt owed to a loan shark, we have facilitated the appellant in providing clear evidence to explain the disputed aspects of her case.
Initially, the Home Office contended, under Section 8 of the Asylum and Immigration Act 2004, that the appellant arrived in the UK in December 2013 but did not seek asylum until April 22, 2020, following her arrest by the police on June 13, 2014. The Home Office questioned why she did not regularize her status during the six years following her release from the police station, attributing this delay to behaviour they deemed unreasonable. While it was acknowledged that trauma may have contributed to her delay in seeking asylum, particularly given her support network’s inquiries about her immigration status, the Home Office deemed a six-year delay unreasonable.
While it was reasonable for the Home Office to present such arguments, it is important to recognize that recovery from traumatic experiences, such as those endured by the appellant, cannot be expected within a set timeframe. Furthermore, as a non-professional, the appellant may not have been fully aware of the asylum claiming process. Her continued post-traumatic symptoms, such as sleep difficulties and depression, further attest to her ongoing mental health struggles.
Expert report provided evidence
We relied on a country expert report detailing the challenges the appellant would face upon return to China, including difficulties in relocating within the country and re-establishing her identity, hindering her access to state benefits and integration into society while still being exploited.
However, during the 1st hearing of the first-tier tribunal, doubts were raised about the validity of the expert report. We worked with the expert to clarify the report’s sources, ensuring its reliability and legitimacy.
In addition to the expert report, we assisted the appellant in drafting a detailed witness statement to address the Home Office’s refusal of her asylum claim, providing necessary clarifications as requested by the court. This was a crucial step in securing victory for her case, enabling the court to gain a comprehensive understanding of her situation.
It was emphasized that the focus of the dispute should not be on identifying the instigator of the problem, but rather on recognizing who faces the genuine risk of harm as a result of the situation. Additionally, it was pointed out that for the appellant to reclaim her identity in China, she would inevitably have to return to the region where the initial harm occurred.
Consequently, it would be impossible for her to do so without attracting the attention of the loan shark in her local area. It was argued that the appellant lacked family support due to their fear of retaliation from the loan sharks, who had previously threatened them with violence.
Moreover, the appellant feared that her ex-husband might disclose her whereabouts to the loan sharks if he knew her location, increasing the risk of being located if she attempted to relocate. Considering her mental health condition, it was asserted that the appellant fell into a highly vulnerable category and would be susceptible to further abuse and exploitation if forced to return to China.
The outcome of the case
On 08 February 2024, before the Deputy Upper Tribunal judge, it was determined that little significance should be attached to the fact that the appellant has remained within a 7-mile radius of where she was held as a victim of modern slavery, despite having no further contact with her traffickers. This decision was based on the understanding that the appellant was trafficked to a densely populated area of the United Kingdom, making such proximity subjective. Additionally, the judge noted that the appellant took steps to avoid interactions with Chinese individuals and minimized her outings over the intervening years.
The judge further concluded that although it was the appellant’s husband who borrowed money to settle his gambling debts, as his spouse, she was equally held responsible and was trafficked to settle that debt.
Victim unaware she could claim asylum
Regarding the delay in seeking asylum, the appellant stated that she was unaware she could claim asylum at the police station and feared being detained. The expert report suggested that the delay was also influenced by the stigma attached to having been coerced into sex work by traffickers, as sex workers in China face discrimination. Despite the prolonged delay, the judge found the appellant’s reasons credible, particularly considering her ongoing psychological therapy and medication for depression and anxiety.
The risk posed by the loan sharks was addressed by the expert, who found the appellant’s account consistent with known tactics used by such individuals. The judge determined that the loan sharks likely maintained interest in the appellant due to her unpaid debt incurred during her enslavement period. The illegality of money lending was deemed irrelevant, as evidence indicated continued operation of loan sharks, particularly in cases of historic unpaid debts.
Therefore, applying a lower standard of proof, the judge concluded that there was a reasonable likelihood of the appellant facing persecution from the loan sharks, who were deemed affiliated with or inseparable from the trafficking gang responsible for her forced sex work in the United Kingdom.
The judge suggested that there is a genuine risk of detection by the loan sharks and the appellant’s ex-husband if she were to attempt to re-establish her identity in China, as this would entail returning to her previous residence. Alternatively, failing to register would heighten her vulnerability to re-trafficking, as she would be unable to access state support, such as healthcare, shelter, or assistance to prevent destitution, given her status as an unregistered individual.
Would face genuine harm if returned to China
After carefully considering the credibility of the Appellant’s account, the judge determined that she would face genuine harm if returned to China, particularly from the loan sharks who orchestrated her trafficking to the United Kingdom in 2013. Additionally, based on expert evidence and considering the Appellant’s vulnerability, depression, and anxiety—which are likely to worsen upon her return—the judge finds that there is a reasonable likelihood she would be at risk of re-trafficking, either by her initial traffickers or by a different group.
As a result, the judge allowed the appeal because the removal of the Appellant to China would be contrary to Article 3 of the European Convention on Human Rights and/or a breach of the 1951 Convention on Refugees due to her affiliation with a specific social group, namely, trafficked women. Consequently, the judge determined that the Appellant would face very significant obstacles to integrating into society in China, contrary to the guidelines outlined in Appendix Private Life of the Immigration Rules.
The triumph comes with the appellant’s successful appeal on both protection and human rights grounds.
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