QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(Sitting as a Deputy High Court Judge
| The Queen (on the application of
MS SALAMAWIT HAILE)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Charles Banner (instructed by Treasury Solicitor) for the Defendant
Hearing date: 29 January 2015
Crown Copyright ©
Ms Alexandra Marks :
i) to report to the police that the Claimant had been trafficked ("police reporting issue");
ii) to identify the Claimant as a victim of trafficking when she claimed asylum in 2010 ("2010 challenge");
iii) to comply with entry clearance procedures at the time of the Claimant's application for a visa to travel to the United Kingdom ("2008 challenge").
The Law and relevant Guidance
" 4.1. No one shall be held in slavery or servitude
4.2. No one shall be required to perform forced or compulsory labour."
Article 4 – Definitions
For the purposes of this Convention :
(a) "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 over 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;
Article 10 – Identification of the victims
10.1 Each Party shall provide its competent authorities with persons who are trained and qualified in preventing and combating trafficking in human beings, in identifying and helping victims, including children, and shall ensure that the different authorities collaborate with each other as well as with relevant support organisations, so that victims can be identified in a procedure duly taking into account the special situation of women and child victims and, in appropriate cases, issued with residence permits under the conditions provided for in Article 14 of the present Convention.
10.2 Each Party shall adopt such legislative or other measures as may be necessary to identify victims as appropriate in collaboration with other Parties and relevant support organisations. Each Party shall ensure that, if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence provided for in Article 18 of this Convention has been completed by the competent authorities and shall likewise ensure that that person receives the assistance provided for in Article 12, paragraphs 1 and 2.
Article 11 – Protection of private life
Article 12 – Assistance to victims
1 Each Party shall adopt such legislative or other measures as may be necessary to assist victims in their physical, psychological and social recovery. Such assistance shall include at least:
a standards of living capable of ensuring their subsistence, through such measures as: appropriate and secure accommodation, psychological and material assistance;
b access to emergency medical treatment;
c translation and interpretation services, when appropriate;
d counselling and information, in particular as regards their legal rights and the services available to them, in a language that they can understand;
2 Each Party shall take due account of the victim's safety and protection needs.
3 In addition, each Party shall provide necessary medical or other assistance to victims lawfully resident within its territory who do not have adequate resources and need such help.
5 Each Party shall take measures, where appropriate and under the conditions provided for by its internal law, to co-operate with non-governmental organisations, other relevant organisations or other elements of civil society engaged in assistance to victims.
6 Each Party shall adopt such legislative or other measures as may be necessary to ensure that assistance to a victim is not made conditional on his or her willingness to act as a witness.
7 For the implementation of the provisions set out in this article, each Party shall ensure that services are provided on a consensual and informed basis, taking due account of the special needs of persons in a vulnerable position and the rights of children in terms of accommodation, education and appropriate health care.
Article 13 – Recovery and reflection period
1 Each Party shall provide in its internal law a recovery and reflection period of at least 30 days, when there are reasonable grounds to believe that the person concerned is a victim. Such a period shall be sufficient for the person concerned to recover and escape the influence of traffickers and/or to take an informed decision on cooperating with the competent authorities. During this period it shall not be possible to enforce any expulsion order against him or her. This provision is without prejudice to the activities carried out by the competent authorities in all phases of the relevant national proceedings, and in particular when investigating and prosecuting the offences concerned. During this period, the Parties shall authorise the persons concerned to stay in their territory.
2 During this period, the persons referred to in paragraph 1 of this Article shall be entitled to the measures contained in Article 12, paragraphs 1 and 2.
Article 14 – Residence permit
1 Each Party shall issue a renewable residence permit to victims, in 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 co-operation with the competent authorities in investigation or criminal proceedings.
"…there must be adequate safeguards in national legislation to ensure the practical and effective protection of the rights of victims or potential victims of trafficking (at paragraph 284);
…the state is required to take operational measures to protect victims where state authorities are aware, or ought to be aware, of circumstances giving rise to a credible suspicion that an identified individual had been, or was at real and immediate risk of being, trafficked or exploited (at paragraph 286);
…there is a procedural obligation to investigate situations of potential trafficking which does not depend on a complaint from the victim: once the matter has come to the authorities' attention, they must act of their own motion. The investigation must be independent and there is a requirement of promptness and reasonable expedition (at paragraph 288)."
The Court observed (at paragraph 255), "..only a combination of measures addressing all three aspects can be effective in the fight against trafficking.." .
- Found in or connected to a type of location likely to be used for exploitation
- Distrust of authorities
- Expression of fear or anxiety
- Depression (lack of interest, hopelessness, suicidal)
- Hostility (annoyed and irritated easily, temper outbursts)
- The person acts as if instructed by another
- Passport or documents held by someone else
- Perception of being bonded by debt
- Being place in a dependency situation
- Threat of being handed over to authorities
- Threats against the individual or their family members
- Injuries apparently as a result of assault or controlling measures
"3.2 Information Leaflet
Applications for entry clearance from domestic workers are subject to a set procedure. They will be interviewed on their own, at least on their first application, to establish that they understand the terms and conditions of the employment and that they are willing to go to the United Kingdom. If their application is successful, they will be given an information leaflet, explaining their rights under the United Kingdom's criminal and employment laws."
"(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,"
but only if he is (or would be) a victim of the unlawful act.
"(5) Proceedings under subsection (1)(a) must be brought before the end of—
(a) the period of one year beginning with the date on which the act complained of took place; or
(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,"
but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.
SUBMISSIONS AND RULINGS
The 2010 challenge
i) the Claimant could not possibly have known to challenge the failure to identify herself as a victim of trafficking (within a year of her asylum claim in June 2010) because she was unaware of the legal position until she was so advised by her current representatives in May 2012; the Defendant's own guidance recognises that victims may not self-identify; and the Claimant's ignorance of her employer's illegal treatment of her was in part due to the Defendant's earlier breach of entry clearance requirements for domestic workers. Mr Banner responds that the Claimant was professionally represented at the time of her asylum claim in 2010, and throughout this current claim. There was therefore ample opportunity for her representatives to raise any allegation of illegality of the Defendant's 2010 actions or omissions, and while their failure to do so may ground a claim against the Claimant's representatives for professional negligence, that does not justify extending the time-limit now. However, Ms Knorr points out that First Responders (i.e. those with responsibility for identifying potential victims of trafficking and putting them in touch with support providers) do not include individuals themselves or their professional representatives. Thus it is not the solicitors' obligation, but the Defendant's responsibility, to identify potential victims of trafficking, and the Defendant cannot absolve herself through the solicitors' failure to identify their client as a potential victim. Ms Knorr adds that not all solicitors were aware in 2010 of the NRM and the trafficking framework which was then relatively new. In this case, Jackson & Canter were instructed by the Claimant on her asylum claim, not potential trafficking. Mr Banner responds that, while solicitors are not themselves First Responders, Jackson & Canter could have told a First Responder such as UK Border Agency that their client should be referred to the NRM, or they could have raised potential trafficking as an issue before the First-Tier Tribunal. Mr Banner cited AS (Afghanistan) v Secretary of State for the Home Department  EWCA Civ 1469 (at paragraphs 12 and 14) as authority for that proposition: at paragraphs 12 and 14, Lord Justice Longmore said, "the appellant was not confined to arguments about asylum but could make any argument he wished which was relevant…The mere fact that the Competent Authority has made a decision which on analysis is perverse cannot prevent the First-Tier Tribunal judge from considering evidence about trafficking which is placed before him.. The FTT judge should consider the matter for himself."
ii) the Claimant's ill-health hampered her receiving timely advice from her solicitors in 2011 and 2012, and timely referral to the NRM. Mr Banner responds that these matters post-date expiry of the time limit.
iii) it was reasonable for the Claimant and her representatives first to focus on referring the Claimant to the NRM and await the decision of the Competent Authority before lodging a claim. Mr Banner replies that this is no good excuse; this attempted justification for extending the time limit was made for the first time in the Claimant's skeleton argument for this hearing, and is unsupported by evidence.
iv) the Defendant's failure is glaring, breach is obvious and the Defendant does not seek to dispute it but relies on limitation. Mr Banner argues this is incorrect, and overlooks prejudice caused by the delay in enabling the Defendant producing evidence.
v) the Defendant is not prejudiced by the timing of the claim because all the relevant evidence is available, straightforward and not in dispute. Again, Mr Banner argues that this is incorrect because the Defendant has been substantially prejudiced by the severe delay by the Claimant bringing this aspect of her claim: meaningful instructions and witness statements from those involved in the asylum claim have been impossible to obtain because of the passage of time and the "trafficking pro forma" on which this part of the Claimant's case relies cannot now be located.
vi) the Claimant suffered enormously, and was left seriously vulnerable for a long time, as a result of the failure to identify her as a victim of trafficking. Mr Banner responds that this is not a good excuse, and the allegation of breach and loss does not of itself justify extending the time limit.
vii) when in pre-action correspondence in March 2013, the Claimant raised the 2010 challenge, the Defendant failed to respond or raise limitation. Mr Banner replies that the allegations should have been pursued in the original Statement of Facts and Grounds dated 21 April 2013 but were not raised again until the Amended Grounds in December 2013, some eight months later.
viii) permission to proceed with the judicial review was granted without any concern being expressed about the timing of this aspect of the claim. Mr Banner replies that undue reliance is placed on Mrs Justice Lang's order granting permission, which in any event granted permission only for ground (iii) (the police reporting issue).
"Art 4 ECHR
 The state has a duty to investigate allegations of trafficking. However, it has no specific Art 4 obligations to any particular person unless they are aware or ought to be aware of circumstances giving rise to a credible suspicion that that individual had been, or was at a real and immediate risk of being, trafficked or exploited. In making the impugned decision the state was ascertaining whether or not it had further positive obligations to the victim. The decision made was unfair, as above, however the applicant has been able to avail herself of these judicial review proceedings in order to ensure that her rights are vindicated. As such the state has not yet breached its Art 4 obligations, and provided that the ultimate process upon which the ultimate decision is made is fair, there will have been no breach of the applicant's Art 4 rights as the states obligations are of means and not of results and as long as the state fairly pursues all reasonable avenues to protect the applicant's rights it cannot have failed in its positive obligations under Art 4."
Ruling on the 2010 challenge
Ruling on the 2008 challenge
The police reporting issue
Ruling on the police reporting issue