Nguyen (Anti-Trafficking Convention: respondent�s duties)

Factual and Procedural Background

This appeal arises from a remittal by the Court of Appeal following a previous hearing before the Upper Tribunal. The remittal required consideration of whether it was safe and reasonable for the Appellant and her children to relocate within Vietnam, with the children's interests as a primary consideration under section 55 of the Borders, Citizenship and Immigration Act 2009.

The Appellant, a national of Vietnam, gave evidence that she was trafficked from Vietnam to Hungary where she was subjected to sexual exploitation. She escaped with help and travelled to the United Kingdom with a false passport. In the UK, she had two children by different men and sought asylum, fearing persecution by the trafficking gang if returned to Vietnam. The First-tier Judge accepted her trafficking experience in Hungary but rejected claims of serious risk upon return to Vietnam and dismissed her appeal under Article 8 of the European Convention on Human Rights.

The Upper Tribunal hearing proceeded by submissions, with arguments addressing trafficking, the Appellant's children’s interests, nationality issues, and the application of the Anti-Trafficking Convention. Subsequent hearings addressed whether the United Kingdom owed obligations under the Anti-Trafficking Convention to a historic victim of trafficking who was trafficked into Hungary but not into the UK. The Tribunal considered evidence including psychiatric reports, country of origin information, and the Appellant's attempts to obtain Vietnamese documentation for herself and her children.

Legal Issues Presented

1. Whether it was safe and reasonable for the Appellant and her children to relocate within Vietnam given her changed circumstances.
2. How the children's best interests should be treated as a primary consideration under section 55 of the Borders, Citizenship and Immigration Act 2009.
3. Whether the United Kingdom owes protective obligations under the Anti-Trafficking Convention to a person trafficked historically into another country but not into the UK.
4. The applicability of Articles 3, 4, 8, 10, 12, and 13 of the Anti-Trafficking Convention and the European Convention on Human Rights to the Appellant’s circumstances.
5. The assessment of risk of persecution or breach of human rights upon return to Vietnam.
6. Questions concerning the nationality and documentation status of the Appellant and her children.

Arguments of the Parties

Appellant's Arguments

• The Appellant was trafficked from Vietnam to Hungary and subsequently suffered exploitation; her children were born in the UK with uncertain paternity.
• She relied on Article 4 of the European Convention on Human Rights and the Anti-Trafficking Convention 2005, asserting the UK’s obligations to protect her and her children from re-trafficking and harm.
• She argued the children’s best interests under section 55 required a comprehensive examination of their circumstances if returned to Vietnam, where she claimed insufficient protection and risk of ostracism as a trafficked woman with children by different fathers.
• She contended that her private and family life under Article 8 was engaged, including physical and moral integrity, and that her mental health condition required ongoing treatment that might not be available in Vietnam.
• The Appellant asserted that the UK’s obligations under the Anti-Trafficking Convention extended to historic victims of trafficking, including those trafficked into other countries prior to arrival in the UK.

Respondent's Arguments

• While accepting the Appellant was trafficked from Vietnam to Hungary, the Respondent disputed trafficking into the UK due to discrepancies in the Appellant’s evidence.
• The Respondent argued that the UK’s obligations under the Anti-Trafficking Convention were engaged but no ongoing treatment or assistance was required, as there was no evidence of exploitation within the UK or ongoing harm.
• On nationality, the Respondent relied on Vietnamese law confirming nationality could be derived from either parent, and that the Appellant should be able to obtain documentation for herself and her children.
• The Respondent submitted that Vietnam was a large country with systems in place to protect trafficking victims, and the Appellant was not at real risk of persecution or human rights breaches on return.
• Regarding Article 8, the Respondent noted the Appellant’s relatively short stay in the UK and absence of evidence supporting a freestanding claim for private life protection.
• The Respondent maintained that the decision to remove the Appellant was lawful and proportionate, balancing immigration control against the interests of the Appellant and her children.

Table of Precedents Cited

Court's Reasoning and Analysis

The Tribunal carefully examined the Appellant’s trafficking history, distinguishing between trafficking into Hungary and alleged trafficking into the UK. It found the evidence supporting trafficking into the UK inconsistent and concluded the original account—that she was trafficked into Hungary but not the UK—was more credible.

The Court analysed the UK’s obligations under the Anti-Trafficking Convention and the European Convention on Human Rights, particularly Article 4’s prohibition of slavery and forced labour, and positive state obligations to protect victims. It referred to the national referral mechanism established in the UK and the relevant guidance.

On whether historic victims trafficked into other countries but later arriving in the UK fall within the UK’s obligations, the Court relied on the reasoning in Atamewan to interpret the Convention’s provisions broadly to include such persons.

Regarding risk upon return to Vietnam, the Tribunal considered country of origin information, the Appellant’s personal circumstances, and medical evidence. It found no real risk of persecution or breach of human rights on return, noting Vietnam’s efforts to combat trafficking and the Appellant’s lack of adverse interest to the Vietnamese government.

The Court evaluated the Appellant’s mental health reports, acknowledging ongoing symptoms consistent with post-traumatic stress disorder but concluded that the balance of interests favored immigration control, as the Appellant’s and children’s best interests were to remain with her, yet return to Vietnam was not unsafe.

On nationality and documentation, the Tribunal found that Vietnamese law allowed nationality to be derived from either parent and that the Appellant had not demonstrated inability to obtain necessary documentation for herself and her children.

Overall, the Tribunal found that the Respondent had lawfully considered all relevant factors, and the decision to dismiss the appeal and remove the Appellant was within legal bounds.

Holding and Implications

The Tribunal DISMISSED the appeal on all grounds.

The direct effect of this decision is that the Appellant and her children may be required to return to Vietnam, with the Tribunal finding no real risk of persecution or breach of human rights upon return. The decision confirms that UK obligations under the Anti-Trafficking Convention extend to historic victims trafficked into other countries prior to arrival in the UK, but that such obligations do not necessarily prevent removal where no ongoing harm or risk is demonstrated. No new legal precedent beyond the interpretation of the Convention’s scope was established.