England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Leeds Combined Court Centre The Courthouse, 1 Oxford Row, Leeds, LS1 3BG
		23/06/2015

Mr Justice Simon:

Introduction

1. In this claim the Claimant, a national of the Philippines, challenges the Defendant's decision of 5 September 2014 refusing to allow the Claimant discretionary leave to remain in this country in order to pursue a compensation claim against a former employer, Ms Hashmi. The Claimant's case is that the decision was unlawful.

The Background

2. The Claimant entered the UK on 31 October 2010 as a domestic worker in the employment of a Qatari national, with entry clearance until 18 August 2010. She left in June 2012 due to the abusive nature of her employment and living conditions; and found alternative employment through an employment agency, Reliance Services Agency, with the family of Mr Ewen Gibb. No complaint has ever been made about the terms of that employment which ended in August 2012. On 16 August 2012 she applied for further leave to remain, but the application was refused apparently due to a failure to pay the requisite fee. On 3 September 2012 she began work for Ms Hashmi, again through Reliance Services Agency. This employment ended in early March 2014 with accusations on each side. The Claimant went to the police to complain about her treatment and was interviewed. Having thus come to the attention of the UK Visas Immigration Department of the Home Office, she was served on 9 March 2013 with notice IS.151A (a notice of liability to detention and removal) as an overstayer. On 19 March 2013 leave to remain was refused with no right of appeal. The Claimant lodged an appeal against that decision and later approached Kalayaan, a specialist organisation which assists victims of human trafficking. On 21 March 2013 the Claimant began work for the family of Mr Stephen Pollard. She has been happy in that employment, and he has supported her in the present claim for judicial review.
3. On 18 December 2013 Kalayaan referred the Claimant to the National Referral Mechanism as a possible victim of trafficking.
4. On 1 April 2014 a 'Conclusive Grounds Decision Notification' (Form HO NRM 05) was sent to Islington Law Centre, which was acting on the Claimant's behalf. This stated:

The referral has satisfied the criteria for Human Trafficking.

The individual concerned has been notified of this decision.

5. There is an issue between the parties as to whether and, if so, what further material was sent to the Claimant.
6. I am satisfied that a letter from the Defendant dated 3 April 2014 was sent to and received by the Claimant. The letter explained that the Defendant had concluded that she had been trafficked, but that she did not qualify for leave to remain in the UK and would be liable for removal unless she had already made an application to remain.
7. I am not satisfied that a further undated document entitled 'Conclusive Grounds Consideration Minute' (the 'Conclusive Grounds Minute') was either sent or received by the Claimant or those acting on her behalf. I accept Ms Warren's submission that this appears to have been a confidential internal document prepared for the purpose outlined at p. 111 of the Home Office, 'Victims of human trafficking - Competent Authority Guidance,' (the 'Competent Authority Guidance'). This part of the Competent Authority Guidance emphasises the importance of keeping detailed notes of facts and of assessments which are made, by reference to documents which are to be identified, showing the weight which is attached to particular information. The content of this part of the Competent Authority Guidance suggests that a conclusive grounds minute would not normally be released to a victim of trafficking due to the dangers of such information coming to the attention of traffickers.
8. The significance of the Conclusive Grounds Minute in the present case is that it set out very fully the Claimant's immigration history, the evidence which had been taken into account in coming to the conclusion that she had been trafficked, references to relevant provisions of the Council of Europe Convention on Action against Trafficking in Human Beings' (the 'CAT') and, in particular, Article 4.a which provides a definition of human trafficking.
9. In short summary, the writer of the Conclusive Grounds Minute concluded that, while the Claimant had been a victim of human trafficking to Qatar and into the UK by her Qatari employer, she had not shown on balance that she had been trafficked by Ms Hashmi 'for the purpose of exploitation.' It was noted that, at this point, no proceedings had been issued against Ms Hashmi, and that she did not require a period of leave to remain for any reason associated with being a victim of trafficking
10. On 28 May 2014, the Anti Trafficking and Labour Exploitation Unit ('ATLEU') at Islington Law Centre sent a Pre-action protocol letter on the Claimant's behalf, challenging the decision not to grant leave to remain so as to enable her to advance her claim for compensation.
11. On 18 June 2014, the Defendant replied by reference to the terms of p.98 of the Competent Authority Guidance (set out below), and concluded:

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.

12. On 7 August 2014 the Claimant issued a claim against Ms Hashmi in the High Court (Manchester District Registry); and on 21 August ATLEU wrote to say that the Claimant would need to be present in the UK for at least 12 months as she would need to give her own evidence and hear any evidence called on Ms Hashmi's behalf at trial. A point was also made that she would need to make a witness statement and give instructions about the contents of the other side's witness statements:

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.

13. On 5 September 2014, the Defendant wrote in answer to that letter:

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.

14. It is clear that the decision to refuse the Claimant leave to remain was based on the conclusion in the Conclusive Ground Minute and the view that she had not shown on balance that she had been trafficked by Ms Hashmi 'for the purpose of exploitation.'
15. It is this decision which is the subject of the present claim.
16. There has now been an exchange of pleadings in the action between the Claimant and Ms Hashmi; and a Case Management Conference is presently listed for 10 July 2015 in the Manchester Civil Justice Centre. It is unclear when the trial will take place; and nothing in this judgment is intended to express a view about the likely merits of the case.

Claimant's claim in the present proceedings

17. Ms Warren advanced three challenges to the 5 September 2014 decision: first, that the Defendant erred in law in not recognising that the Claimant had been trafficked within the United Kingdom; secondly, that she erred in law in deciding that the Claimant had not substantiated her account; and thirdly, that she failed to apply her own policy. The Claimant seeks an order quashing the decision of 5 September 2014 and a mandatory order directing the Defendant to grant the Claimant a residence permit or (as the parties agree is more appropriate in the UK context) discretionary leave to remain.

The CAT and the guidance documents

18. The CAT imposes a number of obligations on the Member States. As noted above Article 4.a defines trafficking:

'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 …

19. Article 14(1) provides:

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.

20. Under the heading, 'Compensation and legal redress', Article 15 provides:

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.

21. The Defendant's policy on leave for victims of trafficking to pursue compensation is contained within two guidance documents.
22. The first is the Competent Authority Guidance (dated 24 October 2013) which gives guidance for the purposes of giving effect to this country's obligations under the CAT.
23. Page 7 identifies the three components of trafficking contained in Article 4.a of the CAT:

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'.

24. At p.83 there is guidance on the standard of proof for conclusive decisions:

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.

25. At p.98 the Competent Authority Guidance deals with, 'victims who pursue compensation':

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.

26. The second guidance document is the Defendant's 'Discretionary Leave' policy (the current version of which came into force on 24 June 2013).
27. Paragraph 2.4 deals with the criteria for granting discretionary leave in trafficking cases and, so far as relevant, provides:

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?

28. Ms Warren submitted that the Defendant's refusal to accept that the Claimant had been trafficked for the purposes of servitude within the United Kingdom was unlawful.
29. It is clear from her letter of 3 April 2014 that the Defendant accepted that the Claimant had been trafficked, but that she did not qualify for leave to remain. In the letter of 18 June 2014 the Defendant refused a request for leave to remain due to a lack of information about the claim. In the letter of 5 September it was made clear that the Defendant accepted that the Claimant had been trafficked into the UK by her Qatari employer, but that she did not accept that the Claimant had been trafficked within the UK. Although the Claimant did not see the document at the time, the Defendant had come to this conclusion (in the Conclusive Grounds Minute) on the basis that there was insufficient information to establish on the balance of probabilities that the Claimant had been a victim of trafficking in relation to her employment with Ms Hashmi.
30. That was the test which was to be applied under the Competent Authority Guidance.
31. Although Ms Warren argued that the Defendant's decision amounted to an error of law, the decision was properly one to be made by the Defendant, and it can only be impugned on the basis that she applied the wrong legal test, or came to a decision which no reasonable decision-maker could have come to, see for example, AA (Iraq) v. SSHD [2012] EWCA Civ 23 at [63]-[68]. The Claimant does not come close to satisfying that test. Ms Warren submitted that the correct test was one of 'heightened or anxious' scrutiny, and referred to the discussion of this test in the decision of Mr Philip Mott QC (sitting as a Deputy High Court Judge of the Administrative Court) in FM v. SSHD [2015] EWHC at [30]-[35]. That was a case in which a claimant contended that there had been a breach of the positive obligation under Article 4, which was not a submission that was advanced in argument in the present case. It seems to me that the Court's approach to a decision under review in this type of case will depend on the nature of the right which is in issue and the effect of a decision on a claimant, and that the relevant test that I should apply is the test described by the Court of Appeal in AA (Iraq) v. SSHD as set out above.
32. However, whichever test is applied, it seems to me that the result would be the same.
33. As already noted above, p.7 of the Competent Authority Guidance emphasises the importance of the three components of trafficking, and p.21 the importance of the relevant 'actions' and 'means' being 'for the purpose of exploitation'.
34. The Conclusive Grounds Minute specifically addressed this issue be applying the test in p.83 of the Competent Authority Guidance. The conclusion was that:

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.

35. Although Ms Warren was right to remind the Court of the importance of treating with caution documents relied on in support of a decision which were not disclosed at the time, I am satisfied that this was a contemporaneous document and that it addressed the issue conscientiously. It is clear that the trafficking claim in relation to Ms Hashmi was rejected on the basis that the third component, 'for the purpose of exploitation' was not satisfied.
36. Among the relevant considerations was the fact that the Claimant, (1) was recruited by Ms Hashmi from an apparently reputable employment agency, which had previously and subsequently placed her with an employer against whom no complaint was or could be made; (2) had a choice to seek alternative employment and felt able to go to the police station to make a complaint about Ms Hashmi. Treatment which may (or may not) prove to have been abusive, or a breach of a contract of employment, or conduct which might undermine trust and confidence between employer and employee, is not (as such) forced labour or domestic slavery.
37. In my view Mr Hansen is correct in his submission that the CAT is concerned with different and altogether more serious activity. In any event, it was not an error of law or outside the range of legitimate decisions to conclude that the Claimant had not been recruited by proscribed means within the UK for the purpose of exploitation. To this extent the decision in Hounga v. Allen [2014] IRLR 811, relied on by Ms Warren, provides no real assistance. In that case the Court was considering the position of, what was said to be:

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 [48] and [49]).

38. Furthermore, even if I had accepted that the Defendant had acted unlawfully in failing to recognise that the Claimant had been trafficked within the UK (a fact which is denied Ms Hashmi), the real question is whether the Defendant should have granted discretionary leave to the Claimant to remain until the conclusion of the trial.
39. Although paragraph 2.4 of the Defendant's Discretionary Leave Policy makes clear that leave 'must only be granted where it would be unreasonable' for a claimant to pursue his or her claim from outside the United Kingdom, the practical issue will be decided by consideration of both p.98 of the Competent Authority Guidance (which tracks Article 15 of the CAT) and §2.4 of the Discretionary Leave Policy.
40. The former requires an assessment of:

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.

41. The test is the securing of justice for victims of trafficking, but the assumption is that justice can be obtained by the pursuit of that claim from outside the jurisdiction, with the possibility of the claimant returning to this country close to the hearing date or of a claimant's evidence being given by video link. The possibility of evidence being given by video link shows considerable confidence in the court systems, and I would expect in the normal course that a claimant would be allowed to return to give evidence and hear the evidence of the other side if a trial were to take place.
42. In §39 of her skeleton argument the Defendant acknowledged that the Claimant could seek limited leave to enter for the purposes of her claim if it proceeded to trial; and I would expect that the implicit offer to treat such an application favourably would be honoured.

Issue 2: whether the Defendant erred in law in deciding that the Claimant had not substantiated her account

43. This issue overlaps substantially with issue 1. For the reasons already indicated I have concluded that the Defendant was entitled to the view that the Claimant had not substantiated her claim. There was nothing irrational or unlawful in the conclusion that her subsequent employment in the UK (after she had left the person who had trafficked her into this country) was to be viewed in an altogether different light to her earlier experience.

Issue 3: whether the Defendant failed to apply her own policy

44. This issue only arises on the hypothesis that the Defendant's decision on the issue of trafficking was wrong. The decisions of 18 June 2014 and 5 September 2014 took into account the relevant considerations as they then appeared, including the nature of compensation being sought by the Claimant, the grounds of the claim, the credibility of the claim and whether the Claimant needed to be physically present throughout. The latter point is the most material; and no substantial reason has been provided as to why the Claimant is required to stay in the UK to pursue her civil claim up to the conclusion of the trial.
45. She has had time to provide full instructions in order for a claim to be pleaded and time in which to make a witness statement about her alleged treatment, and there is no evidence to show that further instructions could not be dealt with from abroad.
46. As was made clear by the Court of Appeal in Attorney General of Zambia v. Meer Care and Desai (a firm) and ors [2006] EWCA Civ 390 at [44] and [47], the irreducible minimum right under Article 6 of the ECHR is to a fair trial; there is no right to be physically present throughout the preparation of the case.

Conclusion

47. It follows that the Claimant's claim that the decision of 5 September 2014 should be quashed must be dismissed. Furthermore, and in the circumstances, even if I had been satisfied that the Defendant had reached a decision on trafficking which could be impugned on public law grounds, I would not have made a mandatory order that the Claimant be granted discretionary leave to remain.