![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
England and Wales High Court (Administrative Court) Decisions |
||
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> FK, R (on the application of) v Secretary of State for the Home Department [2016] EWHC 56 (Admin) (18 January 2016) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2016/56.html Cite as: [2016] EWHC 56 (Admin) |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN MANCHESTER
IN THE MATTER OF AN APPLICATION
FOR JUDICIAL
REVIEW
1 Bridge Street West, Manchester, M60 9DJ. |
||
B e f o r
e :
____________________
THE QUEEN (on the ![]() ![]() ![]() | Claimant |
|
- and - |
||
![]() ![]() ![]() ![]() ![]() ![]() ![]() | Defendant |
____________________
Sam Karim (instructed by Government Legal Department)
for the Defendant
Hearing dates: 3rd December 2015
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
MR JUSTICE DOVE :
Introduction
The Facts
"15. Prior to her husband passing away, there seems to be no evidence ofviolence
towards [the claimant]. However, following his death she
recalls
a number of incidences of
violence
or threats of
violence
![]()
related
to borrowing money and negotiating her husband's property including "Hyatt took me to a hotel and it was there that he first
raped
me" (paragraph 8 First tier tribunal witness
statement)
"Hyatt came to my house…he threatened me and said…he would kill me and everyone else in my house" (paragraph 10) "On one occasion [Hussain] and his wife dragged me into their car and said they were going to kill me" (paragraph 14). Furthermore, the idea of
violence
and threats of
violence
connected with land grabbing is not unknown in Pakistan according to the country expert from paragraphs 32-52…
17. Given [the claimant's] situation prior to her potential trafficking, I believe the evidence suggests that she was highlyvulnerable
to traffickers as she meets every "push" factor set down in the
research
by Huda (2006). I would postulate that she was particularly
vulnerable
to deception, coercion and the abuse of power and
vulnerability
…
19. Previously, [the claimant] has not shared many aspects of the exact details of how she was brought to the UK nor how she was treated or how she felt during the time with Mohammed Waheed, in fact there are only two paragraphs in her originalstatement
![]()
regarding
this period of time. [The claimant] did not
realise
the
relevance
of this information and felt shame about sharing some of the details."
"36. Let us consider the specifics of [the claimant's] account. She was offered a better life in the UK through the marriage to Mohammed and that once there she would be able to work or get benefits and be free from her financial difficulties, control andviolence.
However, once she
reached
the UK, Mohammed did not marry her, she was not able to get a job or claim benefits she was not paid any money by Mohammed for doing housework or cooking, she was still under the control of another person, expected to have sex with him and not treated well as the
right
to eat and leave the house was withheld. I do not believe that [the claimant] had knowledge of this before she agreed to come to the UK."
"47. Although this is not a "classic" example of domestic servitude as there is no official "employee/employer" situation, I believe there is enough evidence to support the idea that she was used as a slave in Mohammed Waheed's house and that there could also be intention to use her for the purpose of benefit fraud/criminal exploitation."
"40. The fact that [the claimant] claimed to be avictim
of trafficking in March 2013 after
receiving
an adverse immigration decision, casts further doubts on her credibility, as she had been legally
represented
in the UK since her arrest in January 2011.
41. It is accepted that [the claimant] has the medical conditionsstated
in the
report
from Dr Ibbotson dated 7th March 2013, but it is not accepted these conditions have been brought on by her being a
victim
of human trafficking.
42. As demonstrated by [the claimant] own use of the law, the LandRegistry
and having legal
representation
in Pakistan up to one month prior to leaving Pakistan, it is not accepted that she would be unable to
receive
justice in Pakistan as a female, as
stated
in the legal
report
completed by Uzma Moeen on 17th January 2013.
43. Atvarious
stages of their dealings with the UK authorities, directly and through
representatives,
[the claimant] and Mr Waheed have
variously
claimed they are partners and family friends of several years standing known to each other in Pakistan, also their
rights
of a family life would be breached if [the claimant] was
returned
to Pakistan and that [the claimant] was his carer due to the poor health of Mr Waheed.
44. I have not been made aware of any Policereport
having been made by your client
regarding
being a
victim
of human trafficking. As your client was aware where she was staying and who she was staying with in the UK, there is no
reason
not to have done this if Mr Waheed was exploiting her in any way.
45. Your client's account of her experiences indicate that she left Pakistan to escape a fear of nonstate
agents and was not deceived into believing she would be placed into employment in the UK. She has claimed she was prevented from leaving the house unaccompanied where she lived, however she and Mr Waheed have described her as the carer of Mr Waheed. It is not accepted [the claimant] would not have to shop for example as part of her caring
responsibilities
and therefore not accepted she was unable to leave the house they shared unaccompanied. She has not claimed she was exploited in employment in the UK. The material facts are that she was discovered trying to obtain a NI number in the UK with a false document.
46. Your client has claimed to have experiencedrape,
threats and theft of her property from males in Pakistan, yet she
states
she moved to the UK and believed the
statements
made by a Pakistani male she barely knew. It is claimed that [the claimant] was "
vulnerable"
due to her experiences in Pakistan, but having lived in Pakistan by her own evidence until she was 35 and having the experiences she claims, being aware of the culture in Pakistan and potential situation of Pakistani females in a marriage, it is not accepted she would undertake this huge
risk
with another Pakistani male she barely knew.
47. For thereasons
![]()
stated
above your client's account of her experiences is inconsistent with indicators of trafficking.
48. Furthermore, the Judge's sentencingremarks
from your client's criminal trial for a crime of deception, do not
reference
trafficking/coercion/deception at all, but show that your client pleaded guilty to the offences she was convicted of.
49. The competent authority does not accept that [the claimant's] circumstances fit the three constituent parts of a trafficking definition asstated
by Ms Bundock in her
report.
50. The Act – the person has been subject to the act ofrecruitment/transportation/transfer/harbouring
or
receipt.
At paragraphs 35-38 of her
report
Ms Bundock has
stated
that [the claimant] fits this definition due to being
recruited
by the people who brought her into contact with Mr Waheed with the incentive of a better life and that the fraudulent passport was obtained for her.
51. For thereasons
set out in the paragraphs above, it is not accepted that [the claimant] fits this definition, as the evidence indicates that she was leaving Pakistan to avoid problems with non
state
agents and came to the UK with Mr Waheed of her own
volition
to be a partner/wife. [The claimant] was not promised by Mr Waheed that she was coming to the UK for example for employment or in the belief that she was bypassing immigration control by employing Mr Waheed as an agent to facilitate entry to the UK. Also there is no evidence of any connection between Mr Waheed and Mr Hussain who obtained the passport for her.
52. The means- By means or threat of use of force or use of force or other form of coercion/of abduction/of fraud/of deception/of abuse of power/of a position ofvulnerability/of
giving or
receiving
payments of benefits to achieve the consent of a person having control over another person. At paragraphs 39-42 of her
report
Ms Bundock has
stated
that [the claimant] fits this definition due to being deceived and
vulnerable.
![]()
53. [The claimant] potentially fits the deception, abuse of power andvulnerability
definitions. However [the claimant] had the confidence to use the law and Government bodies in Pakistan
regarding
her property dispute,
refused
to sign away her land ownership and has
variously
![]()
stated
her intention to marry and not marry Mr Waheed which indicates she is not
vulnerable
as she has been able to act independently. [the claimant] has
variously
been described in her own evidence (including when she was legally
represented)
as Mr Waheed's partner, friend and carer, therefore it is not accepted Mr Waheed has a hold on her. The evidence in this case indicates that [the claimant] principally came to the UK to escape non
state
agents in Pakistan and came as the willing partner/wife to Mr Waheed, therefore it is not accepted she meets the deception definition.
54. The purpose- For the purpose of exploitation. At paragraphs 39-42 of herreport
Ms Bundock has
stated
that [the claimant] fits this definition due to possibly being intended to be used for the purposes of a sham marriage, benefit fraud or domestic servitude.
55. [The claimant] may have had an unsatisfactory experience as the partner of Mr Waheed, however that does not mean she has been exploited. There is no evidence of Mr Waheed profiting from [the claimant] being in the UK.
56. Key elements of trafficking do not appear to be present within your client's case; she was notrecruited
and transported from Pakistan to the UK and she has not been coerced through threats, physical
violence,
sexual abuse or other methods.
57. It is not accepted that your client is avictim
of human trafficking. Consequently, it is not considered that your client
requires
the assistance of protection the Convention affords."
The Convention and the defendant's guidance
"4(a) "Trafficking in human beings" shall mean therecruitment,
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."
"There is no typical experience of people who have been trafficked for sexual exploitation. Some are held captive, assaulted andviolated.
Others are less abused physically, but are psychologically tormented, and live in fear of harm to themselves and their family members. The way in which different people describe their experiences means you must not
rely
on
victims
to self-identify in explicit or obvious ways."
"Domestic servitude (thestate
or condition of a slave) often involves people working in a household where they are:
- ill treated
- humiliated
- subjected to exhausting working hours
- forced to live in unbearable conditions
- forced to work for little or no pay.
The problems of domestic workers held in servitude are made worse by the fact it is oftenvery
difficult for them to leave their employers and seek help. Abusive employers create physical and psychological obstacles by, for example, instilling fear in the domestic slave by threatening them, or their
relatives,
with further abuse or deportation, or by withholding their passport."
"A potentialvictim
of trafficking is a potential
victim
of a crime. Trafficking is a
very
serious crime, punishable by up to 14 years in prison. You must
refer
all credible allegations to:
- Your local Police force…
When sharing information with the Police, you must carefully consider that:
- Potential
victims
are under no obligation to cooperate with the Police themselves and some potential
victims
may not want the police the be involved at all
- In some cases the Police may not pursue a case unless the individual engages with them directly. It is not for you to press the Police to pursue a criminal investigation or convince the potential
victim
to cooperate. In these circumstances you must minute (note) the file with the outcome."
"Consistency
It is alsoreasonable
to assume that a potential
victim
who has experienced an event will be able to
recount
the central elements in a broadly consistent manner. A potential
victim's
inability to
remain
consistent throughout their written and oral accounts of past and current events may lead you to disbelieve their claim. However, before you come to a negative conclusion, you must first
refer
back to the first
responder
or other expert witnesses to clarify any inconsistencies in the claim.
Due to the trauma of human trafficking there may bevalid
![]()
reasons
why a potential
victim's
account is inconsistent or lacks sufficient detail.
For information, seerelated
link: Credibility – mitigating circumstances."
"Credibility - mitigating circumstances
This page gives information for competent authority staff about the mitigating circumstances which can affect whether a potentialvictim's
account of trafficking is credible.
When you assess the credibility of a claim, there may be mitigatingreasons
why a potential
victim
of trafficking is incoherent, inconsistent or delays giving details of material facts. You must take these
reasons
into account when considering the credibility of a claim. Such factors may include, but are not limited to, the following:
• trauma (mental, psychological, or emotional)
• inability to express themselves clearly
• mistrust of authorities
• feelings of shame
• painful memories (particularly those of a sexual nature…
Delayed disclosure
A key symptom of post-traumatic stress is avoidance of trauma triggers, or of those things that cause frightening memories, flashbacks or other unpleasant physical and psychological experiences. Because of these symptoms a person may be unable to fully explain their experience until they have achieved a minimum level of psychological stability. You must notview
a delay in disclosing of facts as necessarily manipulative or untrue. In many cases it is the
result
of an effective
recovery
period and the establishment of trust with the person they disclose the information to."
The Grounds
The Law
i) Having adopted a policy inrelation
to the treatment of claims by persons who have potentially been trafficked it is an error of law not to follow and apply that policy unless there are
reasonable
grounds to do so and an explanation is provided: see Lumba
v
SSHD [2011] UKSC 12; [2012] 1 AC 245.
ii) The Guidance provides specific and bespoke policy in
relation
to the approach and assessment of trafficking claims, bearing in mind the particular features which may arise in the consideration of such cases. For instance, in
relation
to credibility the Guidance provides specific policy in
respect
to the question of how credibility is to be approached bearing in mind that a conventional approach based on the examination, for instance, simply of inconsistencies or delay in disclosure will not in and of itself be fit for purpose in a trafficking claim. There are particular features of the evidence of those who claim to be trafficked that need to be considered before factors such as inconsistency and delay in disclosure can alone be
relied
upon as determining credibility. The features of credibility which are addressed in the Guidance must be considered and examined before
reaching
an adverse credibility finding: see, for instance,
R
(SF)
v
SSHD [2015] EWHC 2705 (Admin) at paragraph 184.
iii) Given the nature of the Guidance, and the level of detail that it provides in
relation
to the consideration of credibility in trafficking claims, a high standard of
reasoning
is
required
from the competent authority in order to demonstrate a careful and conscientious analysis of the
relevant
factors which have to be taken into account when assessing credibility. See
R
(M)
v
SSHD [2015] EWHC 2467 at paragraph 48.
Conclusions