The First-tier Tribunal (Immigration and Asylum Chamber) has allowed an appeal against deportation brought by an appellant who had been convicted of serious drug offences committed as a direct result of being a victim of trafficking and enforced criminality. The case demonstrates the importance of contextualising criminal offending with expert evidence, and weight that confirmed trafficking victimhood can carry in undermining the public interest in deportation even where the individual has received a sentence of 4 years or more.
Factual Background
The appellant (‘AK’), a Jamaican national, has lived in the UK since the age of four and was granted indefinite leave to remain in 2006. His early years were marked by significant trauma, including the violent assault and suicide of his brother, followed by behavioural difficulties and eventual involvement in gang activity. He has 7 convictions for 12 offences.
In 2016, AK received a custodial sentence of 3 years and 10 months for Class A drug offences. A deportation decision followed, and his initial appeal was dismissed by the FTT in 2018.
In 2020, AK was one of approximately 50 people removed from a chartered flight to Jamaica at the 11th hour, following a Court of Appeal injunction halting their removal.
In 2021, he was again convicted, this time for drug supply offences committed in 2019, and sentenced to 4 years’ imprisonment. This triggered the highest statutory threshold under section 117C(6) of the 2002 Act.
Critically, in 2020, a positive conclusive grounds decision was made under the National Referral Mechanism (‘NRM’), confirming that AK had been trafficked for forced criminality by the same gang across both periods of offending.
The Secretary of State’s Position
The SSHD refused AK’s further human rights claim in March 2024, maintaining that deportation was appropriate in light of the seriousness of his offending.
The SSHD’s case followed the well-rehearsed statutory framework: the index sentence of 4 years triggered the highest public interest threshold, and neither statutory Exception 1 nor 2 was said to apply. The SSHD relied heavily on the 2018 dismissal, invoking the principles of Devaseelan for treating those findings as the starting point.
The SSHD also sought to diminish the significance of the NRM decision, citing MS (Pakistan) to argue that the Tribunal was not bound by such findings. It was further argued that the sentencing judge in 2021 had refused to reduce AK’s culpability on the basis of trafficking.
The Appellant’s Case
At the hearing, Lawrence Youssefian, counsel for AK, argued that AK’s offending was inextricably linked to his long-standing status as a trafficking victim. Expert evidence from a retired police officer specialising in modern slavery confirmed that AK had been groomed into criminality from an early age, and that the 2019 offending was a continuation of the same exploitation. The SSHD had offered no credible reason to depart from the unequivocal NRM decision.
It was argued that the NRM decision was had twofold legal significance:
- First, AK’s deportation would violate the UK’s obligations under the Council of Europe Convention on Action against Trafficking in Human Beings (‘ECAT’), specifically Article 26, which prohibits penalising victims of trafficking for unlawful acts committed under compulsion. It was argued that deportation for convictions arising from such exploitation was a form of ‘penalty’ under the ECAT;
- Second, whilst public interest considerations in deportation are typically weighty, they are not fixed. It was submitted that the public interest was critically reduced in AK’s case due to his diminished culpability. Reliance was placed on Nguyen v SSHD [2017] EWCA Civ 258, where the Court of Appeal accepted that public interest may be reduced where the offending is directly linked to the individual’s trafficking status. The extent of that reduction is a matter for the Tribunal’s evaluative judgment.
Further, the appellant’s long residence, social and cultural integration, familial support, and the serious obstacles he would face on return to Jamaica were advanced as additional “very compelling circumstances” under section 117C(6).
The Tribunal’s Decision
The FTT Judge accepted Lawrence’s submissions and allowed the appeal. In particular, it was accepted that:
- AK’s trafficking status had a direct bearing on the 2016 and 2019 offence, and that he remained under the coercive influence of the same gang at the time;
- The NRM decision was thorough and credible. There was no basis to depart from its conclusion;
- Even if the 2019 conviction were not directly caused by trafficking, the earlier exploitation created a continuity of vulnerability and coercion that undermined the weight of the public interest in deportation.
- There was no credible ongoing risk of reoffending; the appellant had repaid the drug debt that compelled his prior offending, had disengaged from the gang, and presented as someone with support and a job offer on release.
- The appellant had established very compelling circumstances over and above the statutory exceptions, justifying a departure from the usual presumption in favour of deportation.
Remarkably, the SSHD did not seek permission to appeal, and AK has since been granted limited leave to remain for a period of 2.5 years.
Comment
Credit goes to the instructing solicitors, whose foresight and decision to obtain expert evidence led to a positive trafficking decision confirming that AK was a victim of enforced criminality. That finding provided the critical foundation for reframing his offending not as purely criminal conduct, but as the product of coercion and exploitation.
This case is unusual in recognising gang involvement as a form of modern slavery. It challenges the assumption that foreign nationals involved in gang-related crime in the UK are necessarily acting autonomously. It also highlights the importance of identifying indicators of grooming, coercion, or early-age recruitment in long-resident individuals facing deportation.
With the right legal framing and evidence, including a positive conclusive grounds decision, what might appear to be a straightforward deportation case can take on an entirely different complexion. Although the FTT Judge did not rule on the ECAT argument, the decision reinforces that trafficking findings (where linked to offending) can substantially reduce the public interest in deportation under Article 8 ECHR, even in the most serious category of offending.
Lawrence accepts instructions in all aspects of immigration and asylum law. He specialises in complex matters involving deportation, deprivation of citizenship, and deception For enquiries or instructions, please contact Chambers.
Related barristers: Lawrence Youssefian
Related practice areas: Immigration and Public Law
