OUR SERVICES
Immigration 
On 4th June 2024 the Deputy Judge of the High Court Clare Padley granted our client TP permission challenge Section 94 certificate by way of judicial review, following refusal on paper of his application on 15th February in The King (TP) v Secretary of State for the Home Department (AC-2024-000045).
TP is an Albanian national who trafficked in the UK in April 2019. He was then forced to work in a cannabis factory for over 2 years. In October 2021, he escaped his traffickers. A few weeks later, his parents’ home in Albania was attacked. The traffickers or people linked to the traffickers asked his parents where TP was? They indicated that TP would pay a heavy price for failing to pay the debts he owed to them.
In April 2022 TM sought asylum on the grounds that he was a victim of trafficking and alleged that on return he feared he would be kidnapped, tortured and re-trafficked from his traffickers, who were looking to recover the debts he owed to them by bringing / trafficking him to the UK. The SCA made a positive Reasonable Grounds on 31st October 2022 and a positive Conclusive Grounds on 24th March 2023. However, despite being recognised as a victim of trafficking and claiming to be in fear of being re-trafficked, on 01st December 2023 the Secretary of State refused his protection claim and certified it as clearly unfounded under Section 94(1) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”).
On 14th December, TP was detained with a view of being removed from the UK. He sought judicial review, challenging the lawfulness of Section 94 certificate and the lawfulness of his detention. On 15th February 2024 the Deputy High Court Judge Butt K.C., refused TP permission to apply for judicial review. He reviewed his application for permission at an oral hearing. At the oral hearing on 04th June, the Deputy High Court Judge Padley granted TP permission to apply for judicial review.
The Judge considered it arguable that the Secretary of State erred in law in failing to apply the approach set out by the UT in DH 2020] UKUT 00223 (IAC) and EMAP [2022] UKUT 335 (IAC) insofar as the membership of a particular social group is concerned. The Secretary of State had accepted that Albanian male victims of trafficking had an immutable characteristic as trafficking victims. However, he did not accept that male trafficking victims in Albania had a distinct identity with surrounding [Albanian] society.
Under the old law, i.e., DH and EMAP make clear that a member of a particular social group does not need to satisfy both limbs of the test, i.e., (i) the presence of an immutable characteristic; and (ii) having a distinct identity within the surrounding society. The law was changed with effect from 28th June 2022 (see Sections 31-36 of the Nationality and Borders Act 2022). However, given that TP had claimed asylum on 13th April 2022, his case falls under the old law, and as such, he did not need to satisfy both limbs of the test for his case to fall within the ambit if the Convention reason.
In any event, the Judge was also satisfied that Albanian male victim of trafficking may well have a distinct identity within the surrounding Albanian society based on an unreported judgment of the UT in DK v Secretary of State for the Home Department [2024] UKUT (UI-2023-003379) (26th March 2024) (Ground 1, 3 and 4). In addition, the Judge found it arguable that if TP were to establish that he was at risk of being re-trafficked on return to Albania, and this was a question of fact for the FtT to decide, even if he was not entitled to asylum within the meaning of the 1951 Refugee Convention, he may nevertheless be entitled to humanitarian protection based on the unreported judgment of the UT in secretary of State for the Home Department v ES [2023] UKUT (UI-2023-000934) (22nd June 2023) (Ground 2). The case was then transferred to the UT for the UT to deal with these issues at a substantive hearing.
The team at Duncan Lewis Solicitors included Rajni Chodha. Counsel instructed was Tomor Bahja at Imperium Chambers.
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