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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> XYL, R (on the application of) v Secretary of State for the Home Department [2017] EWHC 773 (Admin) (11 April 2017) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2017/773.html Cite as: [2017] EWHC 773 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE QUEEN on the Application of ![]() |
Claimant |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
____________________
BILAL RAWAT (instructed by GOVERNMENT LEGAL DEPARTMENT) for the DEFENDANT
Hearing dates: 8 February 2017
____________________
Crown Copyright ©
Deputy High Court Judge Jonathan Swift QC :
A. Facts and context
"Competent Authorities will aim to complete an assessment of whether there are 'reasonable grounds to believe' someone is a victim [of trafficking] within 5 days of referral. A positive decision with trigger a 45 day 'recovery and reflection' period during which time individuals will not be detained (unless their detention can be justified on grounds of public order) and removal action will be suspended. "
"I can see from CID this applicant has only just been accepted into DAC. Is there any rough idea when the asylum interview will be scheduled for. I appreciate this may be hard to say at this point but if I could be kept updated so I can get this allocated to a CA to complete the Reasonable Grounds decision. The sooner we can get the interview completed the better due to the RG timescales."
Although the email does not say so in terms, I infer from it that a decision had already been taken that any Reasonable Grounds decision would await the Claimant's Asylum Interview. There is no explanation before me of the reasons for this decision.
B. The Claimant's claims
C. Analysis
(1) Was the Claimant's detention unlawful from 31 August 2016?
"Any decision made on the immigration detention of an individual who has received a positive reasonable grounds decision under the National Referral Mechanism (NRM), and who has not yet received their conclusive grounds decision or otherwise left the NRM, will be made on the basis of the modern slavery policy set out in separate guidance ?
For full guidance relating to victims of modern slavery and the responsibilities of competent authorities see: Victims of modern slavery guidance for frontline staff."
There is nothing in this iteration of the guidance either that rendered the Claimant's detention unlawful. Chapter 55b simply redirects attention to the Frontline Staff Guidance.
"Arranging accommodation may be done either:
- From the day of referral to the NRM where the individual is destitute
- From the day the competent authority makes a positive reasonable grounds decision in other cases
If the competent authority has reasonable grounds to believe someone is a victim of modern slavery the Home Office is obliged to make sure their accommodation is appropriate and secure.
This means accommodation must meet their support needs and be secure enough to make sure victims cannot be kidnapped by traffickers or modern slavery facilitators. ..."
None of this touches at all on the proposition that it was unlawful to detain the Claimant after the NRM referral. The words in the first bullet point in the passage quoted above are not apt to describe the Claimant's situation as at 31 August 2016. The Frontline Staff Guidance is not specific to persons subject to immigration control, and that being so there is no reason why those words need to be understood to apply to a person in the position of the Claimant. Moreover, giving those words that meaning would entail reading this guidance as being inconsistent with the guidance on detention set out in the EIG. There is neither need nor reason to do this.
"If the Home Office is the Competent Authority they will need to consider additional next steps in live immigration cases once a reasonable grounds decision has been taken ...
... Action 7: consider whether a potential victim can be released from detention
If the potential victim of trafficking or modern slavery is in immigration detention they will normally need to be released on TA or TR by the Home Office unless in the particular circumstances, their detention can be justified on grounds of public order.
...
Therefore a detained person is usually released from immigration detention if they receive a positive reasonable grounds decision ..."
Again, the inference that is to be drawn from this, is that the Competent Authority Guidance makes no assumption that referral to the NRM requires or gives rise to any presumption that immigration detention will end. Rather, it is clear that consistent with the other guidance already referred to the presumption of release from immigration detention arises only once a positive reasonable grounds decision has been taken.
(2) Did the Claimant's detention become unlawful at some point after 31 August 2016?
"The expectation is that the Competent Authority will make a reasonable grounds decision within 5 working days of the NRM referral being received at the UK Trafficking Centre where possible.
Reasonable grounds decisions for cases in immigration detention will be considered as soon as possible."
Neither statement mandates the period for a reasonable grounds decision that must be met in all cases, regardless of circumstances. However, the statements are sufficient to establish working assumptions that decisions will be made in five working days, and that decisions will be "as soon as possible" where the person concerned is in immigration detention.
(3) The Claimant's claim under ECHR article 4
"Thus the focus of the procedural obligation under article 4 is to investigate cases of alleged trafficking and to identify those responsible for crimes committed within the jurisdiction of the State Party in question with a view to prosecution for offences which have occurred within that jurisdiction. It is also concerned with immediate relief for those suffering harm and coercion. This latter aspect of the investigative obligation would arise, for example, if a credible report were received that a factory of the sort in Russia described by the Respondent were operating in this country."
This is the proper extent of the ECHR article 4 obligation, and it is clear to me that that obligation does not have anything material to say about the Claimant's complaint in this case, whether it is the complaint about detention following the NRM referral, or the complaint based on undue delay in making the reasonable grounds decision. The obligation to take operational measures is directed to preventing trafficking, to the protection of victims of trafficking from further trafficking, and the protection of potential victims of trafficking where there are grounds to suspect they may be at immediate risk of being trafficked. As at August 2016 the Claimant was neither in need of protection from those who may previously have trafficked her, nor was she in need of protection against any imminent risk of being trafficked in future.
D. Conclusion