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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> FM, R (on the application of) v Secretary of State for the Home Department  EWHC 844 (Admin) (26 March 2015)
Cite as:  EWHC 844 (Admin)
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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 FM)
|- and -
|SECRETARY OF STATE FOR
THE HOME DEPARTMENT
Christian Jowett (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 19 & 20 March 2015
Crown Copyright ©
Philip Mott QC :
"Although you were found to be trafficked because of the particular circumstances of your case, those circumstances no longer exist and as you do not qualify for leave to remain in the UK you will be liable for removal."
"As you will be aware, there are two avenues by which victims of trafficking may qualify for a period of leave. Your client is not co-operating with an ongoing police investigation, therefore does not qualify in this capacity. The other avenue by which she may qualify for leave is her 'personal circumstances'. When deciding whether your client's circumstances were such that she required a period of leave, the Competent Authority had due regard to all of the evidence submitted at the date of the decision.
With regard to [FM]'s personal circumstances, she left her trafficking situation five years ago. She entered the NRM in January 2014. Consideration has been given to any medical or psychological needs she may have as a result of her trafficking experience. It is noted that [FM] was asked during her first interview whether she was receiving any counselling. She indicated that she was not. During her second trafficking interview, during which she was accompanied by a BAWSO support worker, she stated that she was not receiving any counselling but that she communicates with one of the BAWSO counsellors on the phone occasionally. She indicated that she has a social worker.
No post-decision representations have been submitted through the apposite route … Neither [FM]'s BAWSO support workers nor the first responder have contacted the Competent Authority to adduce any additional evidence, nor have they raised concerns that the decision is not in line with published guidance. It is noted that you have not submitted any additional information regarding your client's personal circumstances."
Provisions against trafficking
i) Insofar as the Guidance purported to give effect to the terms of the CAT and failed to do so, that would be a justiciable error of law. In general it is not disputed, as I found in the case of R (E) v SSHD  EWHC 1927, that the Defendant has adopted the CAT in her published Guidance. The exception in Atamewan in respect of Article 27 of the CAT no longer applies because of changes in the wording of the Guidance, as set out below, which clearly now purport to give effect to Article 27 of the CAT, as the Defendant accepts.
ii) Because the Defendant, and the agencies acting on her behalf, are public authorities for the purposes of the Human Rights Act 1998, they must not do anything that would be contrary to a person's rights under the European Convention on Human Rights ("ECHR"). One of those rights, under Article 4 of the ECHR, is not to be subjected to slavery. That provision must be read in harmony with the general principles of international law. Those principles include the CAT, which is a more detailed approach to the prevention and relief of slavery by means of trafficking. Thus a failure to comply with the obligation in the CAT is amenable to judicial review by this route.
iii) As a result of these two principles it is not disputed on behalf of the Defendant in the present case that I am entitled to look at both the CAT and the CATER when considering the Defendant's duties under her published Guidance.
i) The paramount objectives of the CAT are "respect for victims' rights, protection of victims and action to combat trafficking in human beings" [Preamble]. The purposes include "to protect the human rights of the victims of trafficking, design a comprehensive framework for the protection and assistance of victims … as well as to ensure effective investigation and prosecution" [Article 1(1)(b)]. Two of the main aims of the CAT are "the protection of the rights of trafficked persons and the prosecution of those responsible for trafficking". Those two aims are related to each other [CATER §57].
ii) The first stage is to identify victims and make a reasonable grounds decision. Thus, "if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings" they must take various steps, including to "ensure that that person receives the assistance provided for in Article 12, paragraphs 1 and 2" [Article 10(2)].
iii) The assistance provided for in Article 12 (1) requires the state to "adopt such legislative or other measures as may be necessary to assist victims in their physical, psychological and social recovery". This includes providing "appropriate and secure accommodation, psychological and material assistance" and "information, in particular as regards their legal rights and the services available to them". The authorities must make arrangements for assistance measures "while bearing in mind the specific nature of that aim" (i.e. the aim of assisting victims "in their physical, psychological and social recovery") [CATER §150]. Psychological assistance is needed "to help the victim overcome the trauma they have been through and get back to reintegration into society" [CATER §156]. Information about legal rights and services includes "how the criminal-law system operates" and "should enable victims to evaluate their situation and make an informed choice from the various possibilities open to them" [CATER §160].
iv) When a positive reasonable grounds decision is made, the victim must be given a "recovery and reflection period of at least 30 days". One of the reasons for this is to enable the victim "to take an informed decision on cooperating with the competent authorities". The assistance under Article 12 (1) & (2) must continue throughout this period [Article 13(1)]. Article 13 is intended to apply to victims who are illegally present in the country [CATER §172]. "Informed decision" means that the victim "must know about the protection and assistance measures available and the possible judicial proceedings against the traffickers" [CATER §174].
v) Article 14 requires the state to "issue a renewable residence permit to victims" where either "their stay is necessary owing to their personal situation" or "their stay is necessary for the purpose of their co-operation with the competent authorities in investigation or criminal proceedings". The state may decide not to renew, or even to withdraw, that residence permit in appropriate cases. For the victim to be granted such a residence permit, "either the victim's personal circumstances must be such that it would be unreasonable to compel them to leave the national territory, or there has to be an investigation or prosecution with the victim co-operating with the authorities." [CATER §183]. The "personal situation requirement takes in a range of situations, depending on whether it is the victim's safety, state of health, family situation or some other factor which has to be taken into account." [CATER §184].
vi) Article 15 requires the state to "ensure that victims have access, as from their first contact with the competent authorities, to information on relevant judicial and administrative proceedings". The purpose of this Article is to ensure that victims are compensated [CATER §191].
vii) By Article 16, the return of a victim "shall be with due regard for the rights, safety and dignity of that person and for the status of any legal proceedings related to the fact that the person is a victim, and shall preferably be voluntary".
viii) Article 27 provides that "investigations into or prosecution of offences … shall not be dependent upon the report or accusation made by a victim". Its purpose is "to make it easier for a victim to complain by allowing him or her to lodge the complaint with the competent authorities" [CATER §278].
ix) By Article 29, the state has a responsibility "to ensure co-ordination of the policies and actions of their governments' departments and other public agencies against trafficking in human beings".
i) Page 2 states in terms that the Guidance "is based on" the CAT.
ii) Page 37 states "You must refer all credible allegations to … your local police force" if the person is naming a trafficker, other victims, a place of exploitation, or providing another piece of key information that may require investigation. It is common ground that the Claimant's allegations came within this requirement. The Guidance continues "You must do this as soon as the information is known to the Home Office".
iii) Page 47 sets out the two stage process involving a Reasonable Grounds decision followed by a Conclusive Grounds decision. The reasonable grounds test is one of "I suspect but cannot prove". If a positive Reasonable Grounds Decision is made, the potential victim must be granted a 45 day reflection and recovery period.
iv) Page 58 places a duty on the decision-maker to "make every effort to secure all available information that could prove useful in establishing if there are reasonable grounds".
v) Page 69 states that where a positive Reasonable Grounds Decision is made, "you must … grant a 45 day recovery and reflection period by way of temporary admission" and also notify the police (where appropriate).
vi) Page 77 requires staff to gather more information to make a Conclusive Grounds decision. This involves consultation with various agencies, including the police. The Conclusive Grounds decision is made on the balance of probabilities (page 83).
vii) Page 92 deals with the possible extension of the 45 day recovery and reflection period. It requires a 30 day review, and says "By day 30 you must be gathering information to make the conclusive grounds decision. As part of this, you must contact the … investigating police force".
viii) Page 95 requires staff, before issuing a Conclusive Grounds decision, to telephone the police (if there is a criminal investigation) "to discuss your decision and check if any further information has become available".
ix) Page 96 provides that a Conclusive Grounds decision must be notified in writing to the police.
x) Pages 98 to 99 deal with Discretionary Leave ("DL") on the grounds of personal circumstances. It states that DL may be appropriate for a victim "if their personal circumstances are compelling. For example, to allow them to finish a course of medical treatment that would not be readily available if they were to return home". This must be considered in line with the Defendant's discretionary leave policy.
xi) Page 101 deals with victims who are assisting with police enquiries. It provides that 12 months DL may be granted "where a victim has agreed to cooperate with police enquiries", but that "the police must make a formal request for them to be granted leave to remain on this basis". I will consider the proper interpretation of this provision later in this judgment.
xii) Page 109 covers "Reconsidering a decision". It notes that "a first responder or support provider" may wish to submit additional evidence or raise concerns about the decision. In these circumstances the competent authority must look at whether they wish to reconsider the decision. This is not a formal right of appeal "and the decision should only be reconsidered where there are grounds to do so".
"Such people do not have to be detained, but they have to exist in a half-world (Cranston J called it limbo, but theologians have recently decided that there is no such place) in which they have £5 a day to live on, cannot take work, must live where they are required to, have access only to primary healthcare, can obtain no social security benefits or social services assistance and can study only in institutions that require no payment. In these respects, which are determined by law and are not simply discretionary conditions imposed by the Home Office, they may be no worse of than asylum-seekers (which all three of the present appellants initially were) but are markedly worse off than if they had formal leave to remain."
The challenge to the Conclusive Grounds decision
i) The Claimant suffers from mental health problems, best described as a complex trauma reaction. This commonly occurs after a prolonged period of abuse.
ii) Treatment is available for such a condition. It has three stages. The first focuses on safety, stabilization, and establishing the treatment frame and the therapeutic alliance. The middle stage involves revisiting and reworking the trauma. The last stage involves identity and self-esteem development. The length of treatment is difficult to predict, but is usually a minimum of 6 months and often lasts over a year or 18 months.
iii) The most important factor in the prognosis after treatment is a feeling of security.
iv) The Claimant has a history of repeat victimization and is at significant risk of re-trafficking. With a supportive package of care she would be less at risk of re-trafficking. If removed from the UK she would be more at risk of re-trafficking.
v) At the time of the report, the Claimant had a boyfriend in the UK, also from Eritrea. It was a somewhat precarious relationship as he was either married or getting married. In addition, he shouted at her and got angry very quickly. She was nearly 5 months pregnant (she gave birth to a baby girl on 7 December 2014). The boyfriend did not know this. She intended to keep the baby on her own.
The parties' submissions
"… a decision which is based, in part, on a failure to fulfil the positive obligation not to remove someone who has passed the "reasonable grounds" test and which decision is also contrary to the negative obligation set out in article 27(1) of the CAT cannot be regarded as lawful."
The welfare of the child
i) The child was not born at the time of the challenged decision, so that section 55 did not directly apply.
ii) If it did apply, this was clearly a relevant decision, but the welfare of a child as young as this would almost always require that she stay with her mother. All things being equal, she might also benefit from being able to stay in the UK, but if the mother has no right to remain other things are not equal (see Zoumbas v SSHD  UKSC 74, at paragraph 24).
i) The whole purpose of the CAT is to give particular protection to victims of trafficking, which may well go beyond what is available to those who are not victims.
ii) Article 14(5) specifically provides that the grant of a renewable residence permit shall be without prejudice to the right to seek and enjoy asylum.
iii) Article 40 provides that the CAT shall not affect the rights and obligations derived from other international instruments, which must include the provisions of Article 8 of the ECHR.