QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
- and –
|Secretary of State for the Home Department
John-Paul Waite (instructed by Government Legal Department) for the Defendant
Hearing dates: 18th & 19th July 2018
Crown Copyright ©
Mr Justice Nicol :
The factual background
'The Claimant submits that the Defendant's treatment of his case discloses a number of serious errors in approach including (1) the failure to refer the Claimant to the NRM in October 2013; (2) the failure to conduct a fully detailed interview as part of the NRM once he was referred; (3) the failure to assess the Claimant correctly as a minor both at the stage of the reasonable grounds and initial conclusive grounds decision; (4) the failure to notify the relevant authorities including the CPS of the reasonable grounds decision when it was made; (5) the failure to adhere to decision-making deadlines; (6) the failure to provide the Claimant with the required support and assistance following the reasonable grounds decision and at any time thereafter. These failings give rise to claims for misfeasance, breaches of policy, a breach of Article 4 ECHR and the EU Directive 2011/36/EU. They also expose a wider problem in the Defendant's treatment of VOTs [Victims of Trafficking].'
The present position in summary
i) The Competent Authority has decided that there are Conclusive Grounds that the Claimant is a victim of human trafficking.
ii) His application for discretionary leave has been refused.
iii) His applications for asylum and humanitarian protection remain outstanding.
iv) There is an extant deportation order against him.
v) No removal directions are in place, nor could they be set until a final decision has been made on his applications for asylum and humanitarian protection. Even if those applications are refused, the Claimant would have a right of appeal to the First-tier Tribunal unless the claims were certified.
i) An application to the Court of Appeal Criminal Division for an extension of time and for permission to appeal against his conviction and sentence on 16th March 2016. Those applications have yet to be considered by a Single Judge.
ii) A claim against Morton Hall Immigration Removal Centre and the Secretary of State for Justice (HQ18M01357). This concerns alleged failures by the Centre when it failed to take proper steps after the Claimant complained that another male detainee had attempted to rape him.
iii) A claim against the Derbyshire Police (HQ18X01978).
iv) A claim against the Merseyside Police (HQ18X01977).
The last three matters are claims for damages. I am told that in each case the claim forms have been issued but not yet served.
Legal Obligations to Victims of Trafficking and Potential Victims of Trafficking
i) The Council of Europe Convention on Action against Trafficking in Human Beings 2005 ('the Anti-Trafficking Convention')
I will comment below on the extent to which this Convention has been incorporated into English law by statute. Primarily, though, the SSHD's position is that effect has been given to the Convention by the NRM and other administrative measures to which I shall also refer below.
ii) Directive 2011/36/EU of the European Parliament and of the Council ('the Directive) 5th April 2011
The UK has opted into this measure. By Article 22 the date by which Members States must implement the Directive is 6th April 2013. The Court of Appeal has said that consequently the Directive has direct effect – see EM v SSHD  EWCA Civ 1070 at .
iii) Modern Slavery Act 2015
The only provision of this which might have a bearing on the Claimant's position is s.45 which provides a defence in relation to certain offences for trafficking victims. That section came into force on 31st July 2015. The offence with which the Claimant was charged was committed before then. The Court of Appeal has said that s.45 was not drafted to provide retrospective protection, but the regime developed by the courts prior to then in respect of victims of trafficking may still be relevant – see R v Joseph (Verna) and others  1 Cr App R 33 CA. That, however, will be a matter for the Court of Appeal to consider.
iv) Home Office Guidance: 'Victims of Modern Slavery - Competent Authority Guidance' 21st March 2016
This was not the first edition of this Guidance (indeed, it speaks of the NRM having been set up in 2009) and it has since been superseded, but it was the Guidance operative at the times material to the Claimant's claim.
v) The European Convention on Human Rights
Article 4 of the ECHR prohibits slavery, servitude and forced labour. In Rantsev v Cyprus and Russia App. No. 25965/04 (2010) EHRR 1, the European Court of Human Rights found that Article 4 required in certain circumstances Member States to take positive measures to ensure that the rights guaranteed by Article 4 were practical and effective. In some situations, this could require operational measures to be taken to protect victims or potential victims and to provide for their physical safety while they were in their territories. In Chowdhury v Greece App. No. 21884/15 the Court said at  that the protection measures included 'assisting victims in their physical, psychological and social recovery.'
vi) Detention Centre Rules 2001 SI 2001 No. 238
These apply to all immigration detainees, not just those who were the victims of trafficking.
a) Rule 34 provides,
'1. Every detained person shall be given a physical and mental examination by the medical practitioner [from r.33 this is a reference to a GP] ... within 24 hours of his admission to the detention centre.
2. Nothing in paragraph (1) shall allow an examination to be given in any case where the detained person does not consent to it.
3. If a detained person does not consent to an examination under paragraph (1), he shall be entitled to this examination at any subsequent time upon request.
b) Rule 35 provides,
3. The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture.
4. The manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay.
5. The medical practitioner shall pay special attention to any detained person whose mental condition appears to require it, and make any special arrangements including counselling arrangements) which appear necessary for his supervision or care.'
'1. Member States shall take the necessary measures to ensure that assistance and support are provided to victims before, during and for an appropriate period after the conclusion of criminal proceedings in order to enable them to exercise the rights set out in the Framework Decision 2001/220/ JHA [I was told that the UK had opted into this Framework Decision as well] and in this Directive.
2. Member States shall take the necessary measures to ensure that a person is provided with assistance and support as soon as the competent authorities have a reasonable grounds indication for believing that the person might have been subjected to any of the offences referred to in Articles 2 and 3 [I take the reference to 'criminal proceedings' in paragraph 1 of Article 11 to be to proceedings against the alleged traffickers rather than against their victims].
3. Member States shall take the necessary measures to ensure that assistance and support for a victim are not made conditional on the victim's willingness to cooperate in the criminal investigation, prosecution or trial, without prejudice to Directive 2004/81/EC or similar national rules.
4. Member States shall take the necessary measures to establish appropriate mechanisms aimed at the early identification of, assistance to and support for victims, in cooperation with relevant support organisations.
5. The assistance and support measures referred to in paragraphs 1 and 2 shall be provided on a consensual and informed basis, and shall include at least standards of living capable of ensuring victims' subsistence through measures such as the provision of appropriate and safe accommodation and material assistance as well as necessary medical treatment including psychological assistance, counselling and information and translation and interpretation services where appropriate....
7. Member States shall attend to victims with special needs, where those derive in particular, from whether they are pregnant, their health, a disability, a mental or psychological disorder they have, or a serious form of psychological physical or sexual violence they have suffered.'
'1. Member States shall take the necessary measures to ensure that the specific actions to assist and support child victims of trafficking in human beings, in the short and long term, in their physical and psycho-social recovery, are undertaken following an individual assessment of the special circumstances of each particular child victim, taking due account of the child's views, needs and concerns with a view to finding a durable solution for the child. Within a reasonable time, Member States shall provide access to education for child victims and the children of victims who are given assistance and support in accordance with Article 11, in accordance with their national law.
2. Member States shall appoint a guardian or a representative for a child victim of trafficking in human beings from the moment the child is identified by the authorities where, by national law, the holders of parental responsibility are, as a result of a conflict of interest between them and the child victim, precluded from ensuring the child's best interest and/or from representing the child.
3. Member States shall take measures, where appropriate and possible, to provide assistance and support to the family of a child victim of trafficking in human beings when the family is in the territory of the Member State. In particular, Member States shall, where appropriate and possible, apply Article 4 of Framework Decision 2001/220/JHA to the family.
4. This Article shall apply without prejudice to Article 11.'
'In some cases, a potential victim of modern slavery may have been a victim as a child, but only identified and referred into the NRM after reaching adulthood. In those circumstances, the Competent Authority should treat the potential victim as having been a child at the time of the modern slavery incident and follow the guidance governing children within the NRM decision making process. This means assessing the case as if they were a child to make a reasonable grounds and conclusive grounds decision.
However, an adult who enters the NRM who may have been a victim as a child would be treated as an adult for the purposes of support, services and safeguarding, for the purposes of requiring consent to enter the NRM and for immigration leave purposes.' [emphasis added]
'18. It is necessary for the victims of trafficking in human beings to be able to exercise their rights effectively. Therefore, assistance and support should be available to them before, during and for an appropriate time after criminal proceedings. Member States should provide for resources to support victim assistance, support and protection. The assistance and support provided should include at least a minimum set of measures that are necessary to enable the victim to recover and escape from their traffickers. The practical implementation of such measures should, on the basis of an individual assessment carried out in accordance with national procedures take into account the circumstances, cultural context and needs of the person concerned. A person should be provided with assistance and support as soon as there is a reasonable grounds indication for believing that he or she might have been trafficked and irrespective of his or her willingness to act as a witness...
21. Assistance and support measures should be provided to victims on a consensual and informed basis. Victims should therefore be informed of the important aspects of those measures and they should not be imposed on the victims. A victim's refusal of assistance or support measures should not entail obligations for the competent authorities of the Member State concerned to provide the victim with alternative measures.'
Ground 2: Alleged failure to provide proper support
i) On 28th June 2016 the Claimant was transferred to IRC Morton Hall. He was seen by a nurse. Ms Knights submits and Mr Waite accepted, that a nurse's examination would not be sufficient to comply with Rule 34 of the Detention Centre Rules. However, the medical notes record 'Declined to see GP but is aware of how to access healthcare if necessary.' As can be seen from the quotation of Rule 34 above, a medical examination by a doctor is not required if the detained person does not consent to it.
ii) On 10th September 2016 the Claimant was transferred to IRC Tinsley House. He saw a nurse the following day (11th September 2016). There was a note in his records that he did not attend the Arrivals clinic appointment with the Tinsley House doctor on 12th September 2016.
iii) On 18th September 2016 the Claimant saw a staff nurse. The medical notes record that he brought with him a solicitors' letter referring to bad treatment which he had suffered at the hands of traffickers. He told the nurse that he had been a victim of torture, he had been assaulted with sticks and cut with a knife. He also said he had been raped on several occasions. That was having an impact on his mental health and he had nightmares when he remembered what had occurred. He was given an appointment for a Rule 35 assessment.
iv) On 20th September 2016, the Claimant was seen by Dr Oozeerally and the Claimant gave to him a similar account of torture and ill treatment. Dr Oozeerally noted that the allegation was not of official government torture and that there had been a delayed presentation. It seems that Dr Oozeerally was applying criteria of 'torture' then favoured by UNCAT and the Home Office but which are no longer applied. The same day the Claimant was seen in a mental health clinic.
v) On 25th September 2016 the Claimant was seen by a staff nurse and requested a r.35 appointment. He was booked to see a Medical Officer on 28th September 2016. However, before that could happen he was transferred back to IRC Morton Hall on 26th September 2016.
vi) He was seen by a nurse on his arrival in IRC Morton Hall. He asked about the r.35 appointment. He was advised to raise this with his solicitor.
vii) On 2nd October 2016 he was seen by Dr Sarah Fletcher. He reported that he had lost weight 'although this appears stable'. Various blood tests were commissioned and the results were noted on 5th October 2016.
viii) On 23rd February 2017 he was seen by a nurse who noted that the Claimant declined a mental health assessment, but when the matter was followed up the Claimant denied having received an appointment slip. He reported having felt in a low mood a few days previously but said he was feeling better now. He asked for a further appointment with an interpreter. He did have another appointment with a doctor on 24th February 2017 and another with a nurse on 27th February 2017. On the later occasion it was noted 'No evidence of an underlying mental health problem requiring ongoing support from the mental health team at this time.'
ix) On 9th March 2017 the Claimant was transferred to IRC Brook House. He was first seen by a nurse who noted that his English was poor. Later that day he saw a doctor who recorded that the Claimant told him he felt tired.
x) On 10th April 2017 he was again seen by Dr Oozeerally who noted that the Claimant claimed to have been tortured. He said on one occasion he had tried to escape from the traffickers. They had applied something sharp to his penis and had also implanted a device in him which they said would allow them to track his whereabouts. The doctor noted scars which the Claimant showed him and a small pellet shaped mass on his penis. A r.35 report was sent to the Home Office following this.
xi) On 30th May 2017 the Claimant was seen by Dr Frank Arnold, a specialist in problems of wound healing, who had been instructed by Duncan Lewis. Dr Arnold provided a preliminary report on 7th June 2017 which said that the Claimant had physical evidence consistent with torture. Dr Arnold considered that detention was having an adverse effect on the Claimant's mental health and that he had symptoms in keeping with PTSD. Dr Arnold's final report dated 16th June 2017 was to like effect.
xii) On 15th September 2017 the Claimant's solicitors served the report of Dr Rachel Thomas, a consultant clinical psychologist, who had interviewed the Claimant on 5th August 2017. She considered that the Claimant had moderately severe symptoms of major depressive disorder.
i) The support duty arose when the reasonable grounds decision was taken on 25th February 2016. Within a short period of then, his welfare needs should have been assessed but were not.
ii) His solicitor wrote on 18th September 2016 to health care staff setting out his history of torture, but that did not lead to an individualised assessment of his needs. Dr Oozeerally was not sufficiently probing with his questions and there were interpretation problems.
iii) There had been four occasions when the Claimant had been transferred to a different immigration removal centre. On each occasion he should have been provided with a r.34 examination by a doctor but he was not.
iv) A r.34 examination was carried out on 10th April 2017 and did lead to a r.35 report by Dr Oozeerally, but his conclusion that there was 'no evidence of severe mental health issues' did not bear scrutiny in light of the contrary findings by Dr Arnold and Dr Thomas.
v) Although there were occasions when the Claimant declined to be seen by a doctor, those decisions have to be seen in the context of his poor English which, in turn, meant that his decisions were not based on full information.
'As to the element of the duty that requires the provision of necessary medical treatment including psychological assistance, counselling and information, the treatment provided must respond to the welfare needs of the individual objectively assessed in each case. The obligations arising under the Directive and the Guidance, read alongside the Convention, do not extend to a requirement that the assessment of treatment must be provided by specialists in trafficking, or that it be targeted towards one aspect of an individual's needs (the consequence of trafficking) as opposed to his or her overall psychological needs. The support duty calls for the provision of support, not the accomplishment of physical, psychological or social recovery. There is nothing in the Convention, Directive or Guidance to warrant the extended interpretation of the duty argued for by the Claimant. That interpretation would require significant additions to the texts to prescribe specific obligations that would undoubtedly have been spelt out, had they been intended.'
i) I agree with Mr Waite that a distinction has to be made between the obligations to the Claimant as a victim of trafficking and other obligations which may arise. They are not hermetically sealed from each other. Thus the r.34 examination may also serve as a means to assessing a victim of trafficking's needs for medical services. However, r.34 may include obligations which do not have their counterpart in the support obligations for victims of trafficking. Thus, for instance, r.34 requires an examination by a doctor (as opposed to a nurse) and must be accomplished within 24 hours. I do not see a basis for similar obligations in the regime for victims of trafficking. EM cautions against the reading of additional duties into the latter.
ii) This is a judicial review. It is not a procedure well suited for investigating factual disputes. Ordinarily on factual questions, the defendant's evidence is accepted. Ms Knights argued that it was clear from the Claimant's evidence that he had not understood all that the health care staff had said to him. While that matches what some of the health professionals reported, others appeared to have had no significant language difficulties in communicating with the Claimant with such assistance as was available. On occasions, according to the medical notes, the Claimant declined to be seen by a doctor. That was his right under the Detention Centre Rules and, no doubt, was also his right as a victim of trafficking. In the context of the present proceedings, I am simply unable to investigate whether his view was based on a linguistic misunderstanding.
iii) Similarly, a judicial review is not an appropriate vehicle for assessing whether the examinations by Dr Oozeerally were beyond the range of what could be expected from a clinician in his position. Dr Arnold and Dr Thomas reached different views to Dr Oozeerally, although based on somewhat later examinations of the Claimant.
iv) [Diagram or picture not reproduced in HTML version - see original .rtf file to view diagram or picture]I also have in mind that there is still to be a quantification of the loss to which the Claimant will be entitled for his unlawful detention. Ordinarily, damages in tort are intended to put a claimant in as good a position (so far as money can do so) as if the tort had not been committed. If the Claimant had not been unlawfully detained he would have been at liberty. Dr Arnold has said in his report of 16th June 2017, 'It is highly likely that [the Claimant's] experience of detention in the UK has compounded psychological damage through its recapitulation of his previous adverse experiences of sexual abuse and violent assault.' If that feature is admitted or proved, it may increase the damages to which the Claimant would be entitled for his unlawful detention. It might be thought in those circumstances that there is no purpose in comparing the treatment he in fact received in detention with the treatment he ought to have received in detention. It would be different, possibly, if the treatment in detention made his experience of detention worse. But I am conscious that I am in danger of slipping into territory which will be the responsibility of the Judge who has to decide the quantification of his loss for unlawful detention, and that is not me.
i) The original NRM referral was on a form for adult victims of trafficking. As already noted, the Home Office Guidance specifically addressed the issue of people who were trafficked while children but who have since become adults: the guidance concerning children was to be followed.
ii) The first conclusive grounds decision was erroneously taken by applying to the Claimant the criteria for an adult victim of trafficking when he should have been assessed as a child victim.
iii) The Home Office as the Competent Authority had failed to notify other relevant authorities of its Reasonable Grounds decision on 25th February 2016. According to the Home Office Guidance 'Victims of modern slavery- Competent Authority Guidance' it should have notified the police and asked them to notify the Crown Prosecution Service. That is important because Article 8 of the Directive and Article 26 of the Anti-Trafficking Convention in summary require Member States to take necessary measures to ensure that victims of trafficking need not be prosecuted for offences which they were compelled to perform in consequence of being trafficked. On 26th May 2017 the CPS wrote to Duncan Lewis and said that 'the CPS had not been informed by the police as to the decision made regarding your client's status as a trafficked individual.' They noted that the Claimant had not raised any trafficking issues in his interview with the police. They added,
'However, having considered the guidance that is now available, a decision may have been made to stop the prosecution on public interest grounds. It is clear that by 16th March the Crown should have been made aware by the Competent Authority that a decision had been made on 26th February 2016 that your client had received a positive Reasonable Grounds decision. Had the Crown known about this, a different decision regarding prosecuting could have been taken and may have been taken.'
iv) On 4th March 2017 the Defendant had refused the Claimant's asylum and human rights applications. By that stage the Defendant had already agreed, on 28th November 2016 to reconsider the negative Conclusive Grounds decision but no further Conclusive Grounds decision had been made by 4th March 2017. 'Victims of Modern Slavery – Competent Authority Guidance' says,
'The Home Office should not make a negative decision on an asylum claim whilst a person is being considered un the NRM process.'
v) The negative Conclusive Grounds decision was improperly delayed. It was taken on 9th August 2016. The Reasonable Grounds decision had been taken on 25th February 2016. The Home Office Guidance says,
'The expectation is that a Conclusive Grounds decision will be made as soon as possible following day 45 of the recovery and reflection period. There is no target to make a conclusive grounds decision within 45 days. The timescale for making a conclusive grounds decision will be based on all the circumstances of the case.'
The 'recovery and reflection period' runs from the making of a positive Reasonable Grounds decision. In this case that occurred on 25th February 2016. Day 45 would therefore have been 9th April 2016. There was nothing particularly complicated about the Claimant's case and the delay in making a Conclusive Grounds decision was excessive.