Chinese victim of human trafficking wins appeal against deportation decision

Lord Armstrong
Lord Armstrong

A Chinese national who was identified as a victim of modern slavery but was initially refused discretionary leave to remain in the UK has successfully petitioned for a reduction of the decision.

The petitioner, ZL, challenged the decision of the Home Secretary on the grounds that she had erred in assessing the risk of him being re-trafficked on his return to China as well as the risks to the medical treatment of his son, who suffered from a form of epilepsy.

The petition was heard in the Outer House of the Court of Session by Lord Armstrong.

No account taken

The respondent determined that the petitioner was a victim of trafficking and modern slavery in November 2018. In June 2019, a decision letter was sent refusing his application for discretionary leave to remain in the UK.

The petitioner submitted that his return to China would render him vulnerable to the risk of being re-trafficked in two ways; by falling back into the hands of those who had originally trafficked him, and by being trafficked by others as a consequence of his vulnerability as someone who was already a victim of trafficking. In her assessment of his application, it was argued that the respondent had failed to consider the second of these.

In respect of the risk of re-trafficking, the respondent’s decision had quoted parts of the US 2018 Trafficking in Persons Report: China which indicated that the risk had been reduced. The petitioner argued that those quotations did not reflect the overall conclusions of the report, which stated that although some steps had been taken, China did not meet overall the minimum standards for the elimination of human trafficking.

The petitioner argued that it was reasonable to infer that the absence of quotations from the US report critical of China was an indicator that no account had been taken of them in making the decision, and therefore the respondents reasoning had been inadequately given in this respect.

The second ground of challenge related to the petitioner’s son, RL, who began having seizures consistent with epilepsy in May 2018. These quickly became severe and occurred several times a day. At the time of the hearing, the seizures were being controlled by two forms of medication but the likelihood of reoccurrence was high.

A medical report submitted by the petitioner indicated that RL would not have access to the same treatments as he received in the UK in the area of China he would be going to along with the petitioner. It was stated in the report that this would significantly affect the outcome of his epilepsy and the rest of his life.

In the decision notice, the respondent cited a WHO report that indicated that China was scaling up epilepsy treatment projects to cover 7.5 million people in 18 provinces. It was submitted that, viewed in the context of China’s population of nearly 1.5 billion, the adequacy of that provision could be called into question. No account had been taken of the inevitable and reasonable inference from the available evidence that, for the vast majority of Chinese citizens, no access to appropriate epilepsy treatment was available.

The respondent submitted that trafficking victims had no automatic right to remain in the UK. The decision took into account that the petitioner had been released by his traffickers in 2015 having paid his debt in full and that he had not been in contact with them since. The petitioner had not demonstrated that he was at risk of being re-trafficked. The respondent had also considered what was in the best interests of RL in the context of what was necessary in light of the petitioner’s personal circumstances.

Numerous failings

In his decision, Lord Armstrong began by addressing the US report, saying: “On the basis of the passages from the US Report, quoted in the Decision, I am satisfied that it is reasonably to be concluded that the respondent has not attached due weight to the overall tenor of the report which, read objectively, is critical of the position in China, describes numerous failings, and provides an assessment of a situation which is characterised as inadequate and of concern.”

He continued: “Whether it is appropriate to describe the current situation in China in that way is a separate matter, but in the context of the particular evidence which the respondent has cited as relevant for the purposes of the Decision, in relation to the assessment of what was necessary for the purposes of securing the objective of affording the petitioner protection against the risk of being re-trafficked, I consider that there is force in the argument that, in the determination of this matter, there was a failure to follow the Home Office guidance which required due consideration of the totality of the available evidence.”

Regarding the condition of RL, he said: “The relevant question […] to which due weight ought to have been given, was not whether in China, on the available evidence, treatment for epilepsy, in general, is available, but, rather, whether the particular treatment required by the manifestation of the condition presented in the case of the petitioner’s son is available there. In that regard, the medical report […] states in clear terms that the treatment being received by the petitioner’s son would not be available and that, as a consequence, the outcome of his epilepsy, and the rest of his life, would be significantly affected.”

He continued: “Against the background of the obligation to actively promote the child’s welfare as part of the overall assessment required of the respondent, I am satisfied, in this respect also, that it has been demonstrated that in assessing the petitioner’s personal situation, in particular that aspect of it concerning the welfare of his young child, there was a failure properly to take into account the totality of the available evidence.”

For these reasons, the pleas-in-law of the petitioner were sustained, and the decision was reduced.

© Scottish Legal News Ltd 2020

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