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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> B, R (on the application of) v The Secretary of State for the Home Department [2016] EWHC 786 (Admin) (12 April 2016) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2016/786.html Cite as: [2016] ACD 88, [2016] EWHC 786 (Admin), [2016] Imm AR 928 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
R (BG) |
Claimant |
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- and - |
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
____________________
Catherine Rowlands (instructed by the Government Legal Department) for the Defendant
Hearing dates: 15/03/2016 and 16/03/2016
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Crown Copyright ©
Mr Justice Cranston:
I INTRODUCTION
II LEGAL AND POLICY BACKGROUND
"a. "Trafficking in human beings" shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
b. The consent of a victim of "trafficking in human beings" to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used…"
Article 10 of the Convention provides for the identification of victims of trafficking. Article 10(2) reads:
"2. Each Party shall adopt such legislative or other measures as may be necessary to identify victims as appropriate in collaboration with other Parties and relevant support organisations. Each Party shall ensure that, if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence provided for in Article 18 of this Convention has been completed by the competent authorities…"
• the action of "recruitment, transportation, transfer, harbouring or receipt of persons";
• by means of "the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person"; and
• for the purpose of exploitation, which includes "the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs": [74].
The Explanatory Report continues:
"75. Trafficking in human beings is a combination of these constituents and not the constituents taken in isolation. For instance, "harbouring" of persons (action) involving the "threat or use of force" (means) for "forced labour" (purpose) is conduct that is to be treated as trafficking in human beings... Similarly recruitment of persons (action) by deceit (means) for exploitation of prostitution (purpose).
76. For there to be trafficking in human beings ingredients from each of the three categories (action, means, purpose) must be present together…"
"78. The actions the Convention is concerned with are "recruitment, transportation, transfer, harbouring or receipt of persons". The definition endeavours to encompass the whole sequence of actions that leads to exploitation of the victim…
80. As regards "transportation", it should be noted that, under the Convention, transport need not be across a border to be a constituent of trafficking in human beings…
83. By abuse of a position of vulnerability is meant abuse of any situation in which the person involved has no real and acceptable alternative to submitting to the abuse. The vulnerability may be of any kind, whether physical, psychological, emotional, family-related, social or economic. The situation might, for example, involve insecurity or illegality of the victim's administrative status, economic dependence or fragile health. In short, the situation can be any state of hardship in which a human being is impelled to accept being exploited. Persons abusing such a situation flagrantly infringe human rights and violate human dignity and integrity, which no one can validly renounce."
"Once initial control is secured, victims are generally moved to a place where there is a market for their services, often where they lack language skills and other basic knowledge that would enable them to seek help. While these actions can all take place within one country's borders, they can also take place across borders with the recruitment taking place in one country and the act of receiving the victim and the exploitation taking place in another. Whether or not an international border is crossed, the intention to exploit the individual concerned underpins the entire process."
As regards deception, the Home Office competent authority guidance states that an example would be a recruiter who has provided the worker with maliciously false, inaccurate, or misleading information, for example, a person who ends up being exploited through prostitution may have been under the impression originally that there were legitimate education or employment opportunities.
III CLAIMANT'S IMMIGRATION HISTORY
IV THE TRAFFICKING DECISION
"I can see how the indicators of trafficking in this case can potentially be misidentified as simply a severe form of domestic abuse, in which a man forces his girlfriend into prostitution to earn money. However the fact that K stopped all pretence of a relationship with [the claimant] once the exploitation began may speak to a more sinister intention to exploit her all along, as opposed to opportunistically when he felt they needed more money. This is critical, of course, to the definition of trafficking as it is clear that in trafficking the movement of the person must be done for the purpose of exploitation. Meaning that for [the claimant's] experiences to meet with the definition it is important to recognise K's intentions all along."
"147. She was subjected to the following means during the recruitment part of her trafficking experience:
Coercion: She was in a relationship with K and believed he loved her. She was afraid of the implications if her strict, traditional family knew she had a boyfriend.
Deception: She was made to believe that moving to Tirana with K 1) was a genuine opportunity to migrate and live with him; 2) she would be able to return to school to complete her studies; and 3) she would have the possibility to be reunited with her family.
Abuse of vulnerability: Her naïveté regarding relationships, her sheltered upbringing and her lack of experience negotiating complex social situations.
148. [The claimant's] experiences obviously meet the transfer part of the trafficking definition as she was moved from Shkodra to Tirana. On a micro level she was moved nightly from the flat to a street, and then repeatedly to different hotels.
149. Finally, [the claimant] experienced exploitation in prostitution, meeting the exploitation portion of the definition. All constituent elements of the trafficking definition are present in her claim."
"The claimant was born in a village in the Shkoder district in Albania of a strict, conservative and emotionally distant family. In the third year of her university degree, she started a relationship with a man called K. She fell in love with him. Due to the fact that her family would disapprove, she ran away to Tirana with him. Life in the first few months was good. He went to work from 8am to 4pm in a café he said he owned. She had a set of keys and was able to leave the flat. Apparently only a few of his friends visited and he did not introduce her to his parents. She obtained a passport in July for the planned honeymoon. At the end of September, he began complaining of her housework and took away her mobile telephone. He then said he had no money and said she would have to work as a prostitute. She tried to refuse but he started threatening to kill her and harm her family. Between October 2012 and March 2013 she was forced into sex work in Tirana. She was given drugs and alcohol to force her to comply with his wishes."
"In January 2013 a man who was a regular client took an interest in her and asked her why she did the job. She confessed that she did not have a choice and that she was forced to do it. She asked him for help to get her out of the situation. The man came again to see her in March 2013 and told her to have her passport ready for the next week. As promised, he met her one week later and took her to his flat where she stayed until 17 April 2013. That day he gave her an aeroplane ticket and took her to Tirana airport. He stated that a man would be waiting for her in Malpensa airport, Italy. In Malpensa airport another man approached her and asked whether her name was [B]. She confirmed that this was correct. He took her to his car. She fell asleep and when she woke up they were in Belgium. They stayed in Brussels for one night and the man then handed her the train ticket to the UK via France. She did not know where she was going, but she followed his instructions."
"3. [F]rom the Stepnitz report it appears that K's negative change in attitude to you, came about as result of his financial difficulties (in late September/early October 2012). This is when he began to criticise your domestic work (cooking, ironing, etc.) rather than expect you to perform sexual favours with strangers for money. Again, had this been the purpose of the move to Tirana, by K, this would be more consistent with an act of recruitment, transport and transfer for the purpose of sexual exploitation.
4. The Stepnitz Report attempts to address this problematic issue… by claiming that the amount of money that K was earning from prostituting you was far more than was economically "necessary" to live in Tirana. However, this line of argument does not resolve the crucial "when" i.e. time aspect of the exploitation, as opposed to the "why" (reasons behind) question. If that earning potential was already clear to [the claimant's] ex-boyfriend before moving to Tirana, why did he only seek to exploit this several months later and at a time when he was clearly in financial difficulties. In addition, Ms Stepnitz's explanation does not factor in the possibility that when your ex-boyfriend K saw the potential earnings which could be made from sexually exploiting you, it was probably greed that became the dominating factor. In any event, the timeline provides a strong objective indicator of severe domestic abuse resulting from financial difficulties, rather than pre-meditated trafficking for sexual exploitation purposes.
5. The fact that is at this time you had relative freedom of mobility, a set of keys for the apartment available to you and you were provided with a new mobile phone and SIM card, which does not have appear (sic) to have barred outgoing calls, confirms that you were not being held against your will. Even up to the time of the change in K's behaviour – e.g. when he began staying out as opposed to keeping regular hours etc., there is no indication that you were locked in or physically restrained when he was not present. This again seems to strongly indicate that it was a financial crisis, and not an (sic) premeditated trafficking intention which motivated K's later actions.
6. This situation appears to have changed dramatically after K began exploiting you, as the Stepnitz report indicates that "you were "locked for long periods in the house alone."…
7. …[T]he time the passport was issued in early July 2012, your ex-boyfriend clearly had no problems with you holding a passport."
V GROUNDS OF CHALLENGE
Trafficking and the conclusive grounds decision
Human trafficking and the Dublin Regulation
"Where the asylum seeker is in possession of a valid residence document, the Member State which issued the document shall be responsible for examining the application for asylum."
She contended that under the Trafficking Convention and the Secretary of State's policies the claimant had or at least should have had a UK valid residence document after the reasonable grounds finding in her favour, reflecting a special protection-related form of temporary admission. As a result the UK was responsible for examining her application for asylum, including the trafficking claim.
"'residence document' means any authorisation issued by the authorities of a Member State authorising a third-country national to stay in its territory, including the documents substantiating the authorisation to remain in the territory under temporary protection arrangements or until the circumstances preventing a removal order from being carried out no longer apply, with the exception of visas and residence authorisations issued during the period required to determine the responsible Member State as established in this Regulation or during examination of an application for asylum or an application for a residence permit."
Unlawful detention
Return to Italy
"120. In the present case, as the Court has already observed (see paragraph 115 above), in view of the current situation as regards the reception system in Italy, and although that situation is not comparable to the situation in Greece which the Court examined in MSS, the possibility that a significant number of asylum seekers removed to that country may be left without accommodation or accommodated in overcrowded facilities without any privacy, or even in insalubrious or violent conditions, is not unfounded. It is therefore incumbent on the Swiss authorities to obtain assurances from their Italian counterparts that on their arrival in Italy the applicants will be received in facilities and in conditions adapted to the age of the children, and that the family will be kept together…
122. It follows that, were the applicants to be returned to Italy without the Swiss authorities having first obtained individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together, there would be a violation of Article 3 of the Convention."
"[30] Sometimes it is obviously necessary to grant such a stay, because the anticipated appellate decision will have a critical impact upon the proceedings in hand. There is also, however, a need for realism. In the world of immigration it is a fact of life that the law which the judge applies is liable to change in the future, quite possibly in the near future. This cannot usually be a reason for staying proceedings…
[32] In my view the power to stay immigration cases pending a future appellate decision in other litigation is a power which must be exercised cautiously and only when, in the interests of justice, it is necessary to do so. It may be necessary to grant a stay if the impending appellate decision is likely to have a critical impact on the current litigation. If courts or tribunals exercise their power to stay cases too freely, the immigration system (which is already overloaded with work) will become even more clogged up."
Davis LJ delivered a concurring judgment and Elias LJ agreed with both judgments.
Conclusion