QUEEN'S BENCH DIVISION
The Courthouse, 1 Oxford Row, Leeds, LS1 3BG
B e f o r e :
| R (Cristy Ferrer Poquiz)
Secretary of State for the Home Department
Mr William Hansen (instructed by Government Legal Department) for the Defendant
Hearing date: 9 June 2015
Crown Copyright ©
Mr Justice Simon:
The referral has satisfied the criteria for Human Trafficking.
The individual concerned has been notified of this decision.
There has been no information submitted to indicate any civil action has commenced with the Employment Tribunal, or any other organisations, in the UK. Furthermore, there is no information to evidence the type of compensation sought by [Ms Poquiz] against her individual employers. Finally, there is no indication as to the likely duration of any claim for compensation or whether [Ms Poquiz] would be required to remain in the UK for the entirety of the claim.
Anything less would place [the Claimant] at a disadvantage and seriously hinder her ability to actively participate in the proceedings. It is for this reason that evidence given by video link is simply not practical.
It is the position of [the Defendant] that the allegation against Ms Hashmi was not substantiated to the civil standard of balance of probabilities as it is solely on her self-reported account and there is no external evidence to corroborate this allegation. As such this aspect of your client's account is not accepted.
As the request for the residence permit is to pursue a civil compensation claim against a third party, who has not been accepted to have trafficked your client, the request for a residence permit fails.
Claimant's claim in the present proceedings
The CAT and the guidance documents
'Trafficking in human beings' shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control of another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs …
Each Party shall issue a renewable residence permit to victims, on one or other of the two following situations or in both:
a. the competent authority considers that their stay is necessary owing to their personal situation;
b. the competent authority considers that their stay is necessary for the purpose of their cooperation with the competent authorities in investigation or criminal proceedings.
3. Each party shall provide, in its internal law, for the right of victims to compensation from perpetrators.
4. Each Party shall adopt such legislative or other measures as may be necessary to guarantee compensation for victims in accordance with the conditions under its internal law, for instance through the establishment of a fund for victim compensation or measures or programmes aimed at social assistance and social integration of victims, which could be funded by the assets resulting from the application of measures provided in Article 23.
- an action - the person has been subject to the act of recruitment, transportation transfer, harbouring or receipt - which is achieved by
- a means - the threat or use of force or other form of coercion, of abduction, of fraud, of deception, of abuse of power, of a position of vulnerability, of giving or receiving payments or benefits to achieve the consent of a person having control over another person, for the purpose of
- exploitation: sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, forced criminality or the removal of organs.
An extract at p.21 emphasises the importance of the words 'for the purpose of exploitation'.
In reaching your decision you must weigh up the balance of probabilities by considering the whole trafficking process. The trafficking process comprises a number of interrelated actions rather than a single act which takes place at a given time. To make your decision you must weigh the strength of the indicators or evidence presented, including the credibility of the claim, and apply common sense and logic based on the particular circumstances of each case.
Article 15 of [the CAT] deals with the right of victims to compensation from traffickers. It may be appropriate to grant a victim of trafficking discretionary leave if they need to stay in the UK on the grounds that they are pursuing a claim for compensation against their traffickers. The fact that someone is seeking compensation through the civil courts does not in itself merit victim status or a residence permit. When determining whether to grant a residence permit you must consider:
- the type of compensation being sought
- the grounds of the claim
- how credible the claim is
- the likely length of the claim, and
- whether the person needs to be physically in the UK for the duration of their claim. In some instances it may be more appropriate to facilitate return to the UK nearer to the hearing date or to arrange video conferencing facilities.
A grant of DL should be considered where the victim has lodged a legitimate compensation claim against the trafficker and a grant of leave would help secure justice for the trafficked person and assist in ensuring the trafficker faces the consequences of their actions. The fact that someone is seeking compensation will be relevant to the consideration but does not, in itself, merit a grant of leave. Leave must only be granted where it would be unreasonable for them to pursue that claim from outside of the UK.
Issue 1: whether the Defendant acted unlawfully in failing to recognise that the Claimant was trafficked within the UK?
There is insufficient information to meet 'the balance of probabilities' standard in relation to Ms Hashmi. Therefore this aspect of the account does not meet part 'c' of the definition.
a vulnerable child, lacking family support, by people known to her, who abused her natural trust in them with promises which were not kept and who subjected her to forced labour;
where the Supreme Court concluded that it was not a case of trafficking (Lord Wilson at  and ).
a) the type of compensation sought: in the present case a civil claim for general damages and special damages;
b) the basis of the claim: in the present case a number of causes of action, including a claim for breach of Article 4 of the ECHR;
c) the credibility of the claim: this does not call for a balancing exercise, since the claim will be decided at a trial in which a claimant's credibility is likely to be in issue. If it has the appearance of a legitimate claim, this criteria is likely to be satisfied.
d) the likely length of the claim: the imminence of the trial date is likely to be material.
e) whether the person needs to be present at trial.
It is this last criterion which is particularly relevant here.
Issue 2: whether the Defendant erred in law in deciding that the Claimant had not substantiated her account
Issue 3: whether the Defendant failed to apply her own policy