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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 >> Adesanya, R (On the Application Of) v Secretary of State for the Home Department  EWHC 1165 (Admin) (20 May 2016)
Cite as:  EWHC 1165 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
(Transcript of the Handed Down Judgment of
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Miss Natasha Barnes (instructed by Government Legal Department) for the Defendant
Hearing date: 10 May 2016
Crown Copyright ©
His Honour Judge Jarman QC :
"The Home Office has reviewed the decision to detain your client for immigration purposes. Following careful consideration, the Home Office is maintaining your client's detention. This is justified on grounds of public order, when taking into account his criminal history and blatant disregard of the United Kingdom's criminal and immigration laws.
In reaching this decision your client's rights have been balanced against the wider rights and freedoms of others and the general public interest. We have weight up the extent of your client's [potential victim of trafficking] claim and failure to observe immigration regulations. It is considered that our actions are proportional to a social need being fulfilled…."
"Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration accommodation or prisons…..
In criminal casework cases, the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention. There may be cases where the risk of harm to the public is such that it outweighs factors that would otherwise normally indicate that a person was unsuitable for detention.
The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or prisons:
…persons identified by the competent authorities as victims of trafficking (as set out in Chapter 9, which contains very specific criteria concerning detention of such persons).
If a decision is made to detain a person in any of the above categories, the caseworker must set out the very exceptional circumstances for doing so on file."
"This guidance should be followed during all operations where individuals who may be victims of trafficking are encountered, so that potential victims are handled in a consistent and sensitive manner.
During operations, enquiries into whether a person is a victim of trafficking should take precedence over enquires into the individual's immigration status. Officers should be aware that victims of trafficking are likely to be classified as vulnerable persons and detention will not normally be appropriate.
Officers should refer to Chapter 55 of the [the Guidance] when considering detention."
"Competent Authorities will aim to complete an assessment of whether there are 'reasonable grounds to believe' someone is a victim within 5 days of referral. A positive decision will 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. Victims will have access to certain rights, including accommodation and advice.
A process map highlighting the keys steps in the attached (NB for ease of reference, the process is broken down onto three separate pages covering: Referral, RG Decision and the Conclusive Decision)."
"Where the CA accepts the reasonable ground the PVoT is allowed a 45 day Reflection period to recover and consider their options and consider their options. The PVoT cannot be removed during this period or detained on immigration grounds unless, in the particular circumstances, their detention can be justified on grounds of public order. They can continue to be interviewed for asylum purposes and notified of their decision in line with existing asylum deadlines."
"Since the UK Government has announced that its policy is to give effect to its obligations under the Trafficking Convention, that has consequences in domestic administrative law. Failure to apply the provisions of the Convention may give rise to a successful claim for judicial review: not because the treaty has any direct effect (because it does not), but because the Government has then failed to apply its own published policy (see R(Y) v SSHD  EWHC 1075 (Admin) at ). Thus, the Competent Authority should be taken to have intended to protect the victim's rights, combat trafficking and promote international co-operation (the objectives identified in the Convention) and to promote a human rights based approach."
"1. Each Party shall adopt such legislative or other measure 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;
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."
"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 the 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 Parities 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."
"A person who is not a British Citizen is liable to deportation from the United Kingdom if….the Secretary of State deems his deportation to be conducive to the public good."