QUEEN'S BENCH DIVISION
33 Bull Street, Birmingham, B4 6DS
B e f o r e :
| The Queen
(on the application of ZV)
- and -
Secretary of State for The Home Department
Mr Tom Brown (instructed by Government Legal Department) for the Defendant
Hearing dates: 2nd & 3rd July 2018
Crown Copyright ©
Mr Justice Garnham:
The 18 July 2017 letter
• On previous occasions, the Claimant says, she had reported that her partner was abusing her. She says that he was "beating me up". She says that she opened up about both his physical abuse and his sexual abuse after her partner was deported. She was really scared about the prospect of being deported to the same place where she had been ten years previously.
• Her uncle died when she was 17. Her mother was badly depressed. Her grandfather passed away when she was 19 and her mother was "lost in herself". When she was 20, her best friend was killed, and when she was 21, her partner killed himself. When she was 22, her mother died from lung and stomach cancer. The following day her aunt died. She explained how the effect of these bereavements meant she could not continue with her personnel management course at university and she tried to kill herself "a couple of times".
• Initially, DE provided her with considerable support. But then he got her to try drugs and she "liked them" because for a little while she could forget her life. She says that her mother left her a lot of money but she spent it all in two years. That, she said, was related to her relationship with DE. She acknowledges it was "my fault as well because I was using drugs and loved him".
• Her stepfather and godmother died, and shortly thereafter DE changed. He moved in with her and started to beat her up. She said he persuaded her to sell the house and as a result the last of her money was gone. She intended to escape from him and go to Spain but he discovered her plan. He "took me to a minibus" on which people were travelling to England and gave her tablets. As a result, she slept all the way. She says he put a bottle of alcohol between her legs so that when she woke up and started to ask where she was he would laugh at her and conclude that she was drunk.
• Referring to the occasion when she arrived in England, nearly eight years previously, she said that DE had locked her in a room and told her that because she "had the habit" she would have to go out and make money. She said that he told her that she could work as a prostitute and he began to send men to her. When there were no customers for a couple of hours, she said, DE would send her out to shoplift. If she made less than £50 he would beat her up and deprive her of drugs. She said that her "customers" were raping her even when she was sick. She said that she lived like that for eight years.
• She was imprisoned on four occasions but when she was released he was always waiting for her outside. She said that during this period, she "always liked girls; I hate men". On the one occasion when she left prison when DE was not waiting for her outside, she left with another female prisoner.
• She said that she and her girlfriend then decided to run away together. The implication is that she and her girlfriend then returned to her home country, Lithuania. She says that in her country "they hate gays".
• When DE left prison in England, his parents contacted him and told him that "everyone was laughing" because she was gay. Friends of DE beat her up and then put her into the boot of a car and took her to a forest. There she said "they raped us for two days". Then DE came to her saying he was saving her and that "it's disgusting who I became – a gay". She said she believed she would never see her friend again because he said he was going to shoot them both. She said he told them to dig a grave for themselves. For four hours they were digging and begging not to be killed. She then promised to go back to England to continue life with him. She was doing everything he said, so as to avoid being beaten. He let her girlfriend go.
• He allowed her to go onto a script of methadone and she remained "clean for two years". After that, she began to think about how to escape. She was arrested for an offence and had to go to court. Whilst preparing for that appearance she asked her solicitor to speak to the probation service because she was ready to tell them what had been going on.
• She told everything to her friend, but her friend was sleeping with DE and she reported the matter to him. As a result, he again locked her in the house. However a friend visited and released her.
• She said that before her next appointment with the probation service DE beat her so badly that she was not able to attend.
"Ground 1: The decision to certify under Regulation 33 of the 2016 Regulations is unlawful because (a) evidence before the Defendant at the time of the decision indicated a real risk that the Claimant's removal pending appeal would breach Articles 3 and 8 ECHR and would therefore be unlawful under section 6 of the Human Rights Act 1998 ("HRA"), (b) notwithstanding this evidence, the Defendant conducted insufficient inquiries into the circumstances of the Claimant's case and consequently failed to discharge his duty to satisfy himself on adequate information that certification would not breach section 6; and (c) in any event, judged as at the date of the hearing on the evidence now before the court, the evidence that certification would breach section 6 is now overwhelming.
Ground 2: The decision of 26 September 2017 to declare the Claimant's asylum claim inadmissible without further investigation is unlawful because (a) it was made prior to final determination of the Claimant's VOT status and was therefore in breach of the Defendant's published policy; (b) it was a blanket decision taken without reference to any of the underlying facts and as such, created an unacceptable risk of breach of Article 3 ECHR and the Refugee Convention; and (c) it was contrary to Paragraph 326F of the Immigration Rules.
Ground 3: The Claimant's immigration detention was unlawful from soon after 24 June 2017, to 30 October 2017 when she was released into safe accommodation. This is based upon the failure to identify her as a potential victim of trafficking at the outset as should have been clear had adequate or any medical assessments been carried out; delays in referring her to the NRM and delays within the NRM which would have led to a reasonable grounds decision having been made soon after her detention commenced; failures in conducting an adequate Rule 35/Rule 21 procedure which would also have identified her an unsuitable for detention; and Hardial Singh principles.
Ground 4: The Defendant unlawfully failed to discharge his obligation to provide the Claimant with assistance and support on receipt of a Reasonable Grounds decision under Articles 11(2) and (5) Directive 2011/36/EU and his published policy. That is so because (a) the Claimant's medical and welfare needs required her release from detention and yet Defendant unlawfully failed to discharge her, (b) the psychological support the Claimant required was not provided to her in detention; (c) the Defendant made no adequate assessment of the Claimant's medical and welfare needs until her release from detention on 30 November 2017; and (d) the Claimant did not receive adequate mental health treatment whilst in detention.
Ground 5: The Defendant committed further breaches of its policy in relation to the Claimant as a potential victim of torture by (a) failing to refer the Claimant to the NRM even once the trafficking background was very obvious; (b) seriously and unreasonably delaying in taking the Reasonable and Conclusive Grounds decision and (c) unlawfully prioritising her removal over and above his responsibilities to identify and protect her as a prospective VOT. Such breaches are of wider concern as they are symptomatic of a wider problem and not isolated events."
Modern Slavery - The Legal Framework
"if a potential victim of modern slavery has an existing immigration case which concludes that they cannot remain in the UK, no removal action will be taken by the Home Office before a Conclusive Grounds Decision has been made on their human trafficking and slavery case within the NRM process and they will not be detained save in limited circumstances i.e. where their detention is necessary on grounds of public policy."
Ground 1 – Unlawful Certification of Deportation Appeal
"Where a decision is taken to remove a person under regulation 23(6)(b), the person is to be treated as if the person were a person to whom section 3(5)(a) of the 1971 Act…applies…"
"Human rights considerations and interim orders to suspend removal
(1) This regulation applies where the Secretary of State intends to give directions for the removal of a person ("P") to whom regulation 32(3) applies, in circumstances where—
(a) P has not appealed against the EEA decision to which regulation 32(3) applies, but would be entitled, and remains within time, to do so from within the United Kingdom (ignoring any possibility of an appeal out of time with permission); or
(b) P has so appealed but the appeal has not been finally determined.
(2) The Secretary of State may only give directions for P's removal if the Secretary of State certifies that, despite the appeals process not having been begun or not having been finally determined, removal of P to the country or territory to which P is proposed to be removed, pending the outcome of P's appeal, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).
(3) The grounds upon which the Secretary of State may certify a removal under paragraph (2) include (in particular) that P would not, before the appeal is finally determined, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed."
Ground 2 – The Asylum Claim
"5.4 Victims of Modern Slavery/Trafficking
EU nationals must still be referred to the National Referral Mechanism where there are indicators that the individual has been a victim of modern slavery or trafficking. The asylum claim must still be declared inadmissible because victims could seek redress from the authorities in their country of origin, they may nevertheless qualify for leave to remain in the UK under the Discretionary Leave policy. Caseworkers can refer to guidance on Modern Slavery and the Discretionary Leave instruction for further information.
5.5 Exceptional circumstances
EU Member States are required to abide by the ECHR and under the Spanish Protocol it is considered that the level of protection afforded to individuals' fundamental rights and freedoms in EU Member States means that they are deemed to be safe countries of origin. As such, there is no risk of persecution for individuals entitled to reside in EU countries that would give rise to a need for international protection. It is expected that there will be very few claims that are not declared inadmissible and are instead admitted to the asylum process for full consideration and even fewer, if any, who qualify for international protection-based leave in the UK.
An asylum claim from an EU national will only be admissible if the claimant sets out exceptional circumstances which require the claim to be fully considered in accordance with paragraph 326F."
"Given the level of protection of fundamental rights and freedoms by the Member States of the European Union, Member States shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters. Accordingly, any application for asylum made by a national of a Member State may be taken into consideration or declared admissible for processing by another Member State only in the following cases:
if the Member State of which the applicant is a national proceeds, availing itself of the provisions of Article 15 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, to take measures derogating from its obligations under that Convention;
if the procedure referred to in Article I-59(1) or (2) of the Constitution has been initiated and until the Council, or where appropriate, the European Council, adopts a European decision in respect thereof with regard to the Member State of which the applicant is a national;
if the Council has adopted a European decision in accordance with Article I-59(1) of the Constitution in respect of the Member State of which the applicant is a national or if the European Council has adopted a European decision in accordance with Article I-59(2) of the Constitution in respect of the Member State of which the applicant is a national;
if a Member State should so decide unilaterally in respect of the application of a national of another Member State; in that case, the Council shall be immediately informed; the application shall be dealt with on the basis of presumption that it is manifestly unfounded without affecting in any way, whatever the case may be, the decision-making power of the Member State."
Ground 3 – Detention
The Legal Principles and Policy
"i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
ii) The deportee may only be detained for a period that is reasonable in all the circumstances;
iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;
iv) The Secretary of State should act with the reasonable diligence and expedition to effect removal."
"(1) Every detained person shall be given a physical and mental examination by the medical practitioner (or another registered medical practitioner in accordance with rules 33(7) or (10)) 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 the examination at any subsequent time upon request".
"(1) The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention.
(2) The medical practitioner shall report to the manager on the case of any detained person he suspects of having suicidal intentions, and the detained person shall be placed under special observation for so long as those suspicions remain, and a record of his treatment and condition shall be kept throughout that time in a manner to be determined by the Secretary of State.
(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."
"(i) the date of removal is fixed or can be fixed quickly, and is within a reasonable timescale and the individual has failed to comply with reasonable voluntary return opportunities, or if the individual is being detained at the border pending removal having been refused entry to the UK;
(ii) they present a level of public protection concerns that would justify detention – for example, if they meet the criteria of foreign criminal as defined in the Immigration Act 2014 or there is a relevant national security or other public protection concern;
(iii) there are negative indicators of non-compliance which suggest that the individual is highly likely not to be removable unless detained."
"(i) removal has been set for a date in the immediate future, there are no barriers to removal and escorts and other appropriate arrangements are in place to ensure the safe management of the individual's return or
(ii) the individual presents a significant public protection concern."
It is stated to be very unlikely that compliance issues on their own would warrant detention of individual falling into this category.
Submissions and Discussion
"I can see nothing in the various guidance documents to the effect that immigration detention must or ought usually to, come to an end if the person concerned is the subject of an NRM referral. Moreover, there is no inherent inconsistency between lawful immigration detention – lawful in accordance with the well-known Hardial Singh principles – and a situation in which a person who is so detained is also the subject of an NRM referral. Put another way, the fact that there has been an NRM referral does not mean that detention ceases to be for purposes permitted under 1971 Act powers (regardless of what the position might be if at some point thereafter there is a conclusive grounds decision in respect of the person detained). Nor does the fact of a referral mean that it is inevitable that the detention will be for a period beyond that reasonably necessary. This point is underlined by the requirement that a reasonable grounds decision may be expected in a short period of time – i.e. "as soon as possible" in situations where the person is in immigration detention."
Ground 4 – Failure to discharge the obligation to provide assistance and support
The Directive and the Trafficking Convention
"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 of time after the conclusion of criminal proceedings in order to enable them to exercise the rights set out in Framework Decision 2001/220/JHA, 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…
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…" (emphasis added)
"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 standard 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;
e assistance to enable their rights and interests to be presented and considered at appropriate stages of criminal proceedings against offenders;
f access to education for children.
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.
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" (emphasis added).
"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.
3 The Parties are not bound to observe this period if grounds of public order prevent it or if it is found that victim status is being claimed improperly."
"….[T]he core obligation defining the support duty arises from Arts 11(2) and (5) of the Directive, which….mandate that assistance and support must be provided to PVoTs (potential victims of torture) 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".
The Competing Arguments
"65. The general duty on the State under Arts. 11(2) and (5) of the Directive is to provide assistance and support to a PVoT by mechanisms that at least offer a subsistence standard of living through the provision of appropriate and safe accommodation, material assistance, necessary medical treatment including psychological assistance, counselling and information, and translation and interpretation services (emphasis added).
"68 I also consider that, when considering whether the support duty has been discharged, it is appropriate to look at the level of assistance and support that has been provided to the PVoT at all stages in the process, and not just at support provided during the 45-day reflection period."
"66 As to that 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 Guidance, read alongside the Convention, do not extend to a requirement that the assessment or treatment must be provided by specialists in trafficking, or that it be targeted towards one aspect of an individual's needs (the consequences 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. ….
67 Nor do the Claimant's submissions gain strength from a comparison between services that are provided in the community and those provided in IRCs. The position of a PVoT who is detained is different from the position of one who is not, and it is lawful for the State to decide to provide support in different ways. A PVoT living in the community may well not have access to any of the four forms of support mentioned at paragraph 65 above, while all four will automatically be available to a detained PVoT. The way in which psychological treatment is provided may take account of the inherent uncertainty about the length of detention, and the ready availability of on-site medical care for a person who is in any case under close observation. The evidence filed on behalf of the Claimant is in my view more effective in demonstrating the way in which the support duty is satisfactorily discharged in the community than in establishing any breach of legal duty towards detained PVoTs. The fact that different, or better, provision might be made for those not in detention does not of itself equate to a breach of duty."
"The role of the Court is to adjudicate on specific legal disputes. Bodies such as the Public Accounts Committee and the Anti-Slavery Commissioner have a wider remit. They can survey the performance of the Home Office more generally in discharging its anti-trafficking functions and make recommendations. That is not the function of the Court."