Tribunal judgment sets new case law precedent

EK (Article 4 ECHR: Trafficking Convention) [2013] UKUT 00313 (IAC)

Emmy Gibbs of ATLEU at Islington Law Centre represented the Appellant in the case of EK (Article 4 ECHR: Trafficking Convention) [2013] UKUT 00313 (IAC) in which judgment was given in June 2013.

EK was trafficked to the UK from Tanzania in 2006 for domestic servitude. Contrary to UKBA guidance she was not given information on her rights upon entry to UK. After an initial escape, she was internally re-trafficked. She developed tuberculosis but was informed she could not access medical help. In 2008 she was admitted to A&E and treated but by then her her lungs had suffered permanent damage. 

In 2010 she was referred through the National Referral Mechanism as a victim of trafficking and assisted to raise an asylum claim. The UK Border Agency agreed that she had been trafficked but refused to grant asylum or any form of leave. ATLEU lawyers took the case after the rejection of her case by the First Tier Tribunal EK and obtained supplementary evidence showing, in particular, that if returned to Tanzania, EK would face a significantly reduced life expectancy, that she was in need of psychological treatment for PTSD and depression and that she remained exceptionally vulnerable. In the Upper Tribunal, EK argued that the failure to give information to EK at entry had amounted to a breach of Article 4 and that this had contributed directly to her vulnerability to trafficking, and to the damage caused to her health. 

The Upper Tribunal agreed. Its judgment set new case law precedent, establishing that in cases where the UK has breached its obligations under Article 4 ECHR, a duty of reparation is owed and that this impacts directly on any decision to remove her from the UK.  Also relevant to the decision to remove was the UK's obligations under the Council of Europe Convention on Action against Trafficking in Human Beings, and in particular the duty to provide assistance and support to victims (Article 12),  to provide a residence permit if their personal circumstances require it (Article 14) and to return victims to their country of origin with dignity (Article 16).

Since the judgment was handed down EK has been granted discretionary leave to remain in the UK. ATLEU continues to represent EK in relation to a related claim in the European Court of Human Rights (Application number 56921/09).