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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> NN, R (On the Application Of) v Secretary of State for the Home Department [2019] EWHC 1003 (Admin) (17 April 2019) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2019/1003.html Cite as: [2019] EWHC 1003 (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 NN | Claimant |
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- and – |
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| SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
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THE QUEEN ON THE APPLICATION OF LP | Claimant |
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-and- |
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| SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
____________________
Robin Tam QC and Emily Wilsdon (instructed by GLD) for the Defendant
Hearing date: 10 April 2019
____________________
Crown Copyright ©
The Honourable Mr Justice Julian Knowles:
Introduction
NN
and
LP.
On 21 March 2019 following an oral hearing in Birmingham I granted interim relief until this hearing and gave directions for the transfer of the cases to London and for the filing of evidence as well as other orders, including anonymity. My judgment is reported at [2019] EWHC 766 (Admin). Since then, both sides have filed evidence and made further written submissions.
Permission and interim relief for
NN
and
LP
NN
and
LP
on all grounds (including the new ground relating to the extension policy) and he also accepted that the interim relief which I granted to them (namely, that their support should continue until today's hearing) should continue until the determination of their claims.
LP
and
NN
under the Victims of Modern Slavery Contract until the final disposal of their claims for judicial review (as per [1] of the Order dated 26 March 2019).
The issue before me
NN
and
LP,
namely, victims of trafficking who have received positive CG determinations and who are currently receiving support which will end 45 days after that determination. I granted such relief until today's hearing in [2] of my 26 March 2019 order, which was in the following terms:
"Pending the hearing referred to a paragraph 7 below [that is, the permission/interim relief hearing], the Defendant shall not restrict support for victims of trafficking under the Victims of Modern Slavery Contract by reference to the date of a Conclusive Grounds decision or the length of time the support has been provided."
NN
and
LP's
claims. He suggested the full hearing could take place in May or early June 2019 and that the balance of convenience came down in favour of granting interim relief until then. He said that although the number and identity of the persons who would benefit from such relief could not, by definition, be known, he argued that the nature of public law proceedings is such that,
NN
and
LP
having brought claims and been granted permission and interim relief, and because they are in an identical position to these other victims of trafficking who would suffer irreparable harm if their support were to be withdrawn, the balance of convenience came down in favour of granting interim relief. He said that there was no reason in principle why such an order for interim relief benefitting an unascertainable class of individuals could not be made in public law proceedings, and he cited examples where such orders had been made. He also said that the evidence filed on behalf of the Secretary of State did not show that it would not be possible for the Defendant (through the service providers with whom it contracts to provide support) to continue to provide support for all trafficking victims until the disposal of these claims in the relatively near future.
Discussion
NN
and
LP
who are not claimants before me. The Defendant suggested in guarded terms that I do not. I am satisfied that I do. Whether it is appropriate do so in a particular case resolves down into an application of the well-understood American Cyanamid principles (see American Cyanamid Company v Ethicon Limited [1975] AC 396) in the particular public law and factual context involved.
"Powers of High Court with respect to injunctions and receivers
(1) The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so.
(2) Any such order may be made either unconditionally or on such terms and conditions as the court thinks just."
"The 1873 legislation conferred on the High Court the jurisdiction vested in, or capable of being exercised by, various courts, including courts of equity. In courts of equity the jurisdiction to grant injunctions:
;… has always been without limit, and could indeed be exercised either in support of any legal right, or in the creation of a new equitable right, as the court thought fit in the application of equitable principles (Spry, The Principles of Equitable Remedies, 5th Edn (1997), p331)'
It follows from this that, insofar as the High Court has thought it fit to not to exercise its equitable jurisdiction to grant injunctions (either interlocutory or final), and has customarily refused relief, it has done so, not because it lacked jurisdiction or power, but as a matter of discretion."
"The appellant's application for further interim relief is granted in the form of a stay on a removal from the UK until further order of the Court of Appeal, for all other persons [ie not the appellants] facing forced removal from the UK on the charter flight PVT 081 to Kabul on 26 August 2015 who were not habitually resident in the Provinces of Bamyan, Panjsher and Kabul."
"It seems to me that this Court probably does have jurisdiction to make an order of the type now sought under the general power to make an injunction whenever it is just and convenient to do so or under the Court's inherent jurisdiction. I make no final decision in relation to that. It seems to me that in any event it has jurisdiction to make an order such as the one that I propose to make on an interlocutory basis."
" ... In a public law case when a consideration which affects one group of applicants affects others who are not or not yet parties to the proceedings in that or a very similar way it seems to me proper for the recent stay ordered by the Court to extend to those in the latter as well as the former category. At any rate, that seems to be appropriate on the facts of the present case."
"(2A) The High Court—
(a) must refuse to grant relief on an application for judicial review, and
(b) may not make an award under subsection (4) on such an application,
if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred."
NN
and
LP,
because individual interim relief has been ordered in relation to each of them in any event, this section requires me to refuse to grant general interim relief unless there are reasons of exceptional public interest.
a. The first reason was that the relief was sought on behalf of persons unknown (at [11]). He said that counsel for the Secretary of State had submitted that there was a general principle that litigation cannot be carried out on behalf of individuals save with their consent and in strictly defined circumstances. He went on at [12] to identify three exceptions to this supposed principle, including where NGOs 'act on behalf of groups of persons who may not be immediately identifiable' and cited Lord Chancellor v Detention Action [2015] 1 WLR 5341 as an example.
b. The second reason was s 31(2A) of the SCA 1981.
c. The third reason was that in HN, supra, the order was in respect of a defined class (persons liable to removal from the UK on a specific flight) who might not have had the opportunity to apply for judicial review because of the imminence of their departure. Cranston J distinguished those facts from the case before him. He said that there was no evidence that the persons affected could not access the court and that if they did their removal would be automatically stayed as the result of the Secretary of State's declared policy in such cases. He said HN, supra, was a 'quite exceptional case'.
NN
and
LP
should only be granted in 'exceptional' cases. Also, and with the greatest of respect to Cranston J, it seems to me that his reasons do not provide significant support for his conclusion, correct overall might that conclusion have been on the particular facts:
a. As to his first reason, the fact that relief was being sought for persons unknown is unremarkable and is a common feature of public law injunction applications. Where a claimant seeks injunctive relief to stop a motorway being built next to his village the class of persons whom it may benefit may be unknown, but that of itself is not a reason not to grant the injunction. Also, and perhaps more pertinently, NGOs frequently seek relief including injunctive relief for the benefit of a set of unascertained (and sometimes unascertainable) individuals who can be identified solely on the basis that they have a characteristic or status which means the impugned action may be applied to them. An example is R (Medical Justice) v Secretary of State for the Home Department [2010] EWHC 1425 (Admin). Another example is Detention Action, supra, which the judge referred to.
b. As to s 31(2A), I have already explained why in my view that is not an impediment to the grant of general interim relief and is concerned with something entirely different.
c. Cranston J's third reason was simply an observation on the factual distinction between the case before him and HN, supra.
NN
and
LP
to seek similar relief for persons identically situated to them and I have jurisdiction to grant such relief. I can see no reason of principle why that should not be so. Whether it will be right to do so will depend on the application of the normal principles governing the grant of injunctive relief. To that matter I now turn.
"The first question is whether the plaintiffs have satisfied the first requirement laid down by the House of Lords in American Cyanamid Co v Ethicon Ltd: is their action not frivolous or vexatious? Is there a serious question to be tried? Is there a real prospect that they will succeed in their claim for a permanent injunction at the trial? The first two questions were clearly intended to state the same test, because they are joined by the phrase 'in other words', and the third cannot, I think, have been meant to state any different one."
"The courts will consider whether the claim raises a serious issue to be tried, and if so, where the balance of convenience, including the wider public interest, lies. In considering whether there is a serious issue to be tried, the court will consider whether the claimant can demonstrate a real prospect of succeeding at trial: R (Medical Justice) v Secretary of State for the Home Department [2010] EWHC 1425 (Admin). In considering the balance of convenience, the availability of damages is unlikely to be determinative of the grant of interim injunctions in most public law cases as damages will either not be available or will not be an adequate remedy. In considering the balance of convenience as a whole, the courts must have regard to the wider public interest (Smith v Inner London Education Authority [1978] 1 All ER 411; Sierbein v Westminster City Council [1987] 86 LGR 431). The wider public interest includes permitting a public authority to continue to apply its policy but that interest will need to be weighed against other relevant factors: R (Medical Justice) v Secretary of State for the Home Department [2010] EWHC 1425."
NN
and
LP,
ie, victims of slavery and trafficking who have received positive CG determinations but whose support will end 45 days thereafter, absent an extension. Rachel Collins-White works for Unseen, an organisation which helps the survivors of slavery. She says at [6] of her witness statement:
"The 45-day deadline for support ending can be very daunting for victims. Having built a relationship with their key worker, having felt safe and secure. Having received support to access the care that is needed, the prospect of that support no longer being there is a blow. For victims of trafficking, who often have complex trauma, the recovery process does not follow a fixed trajectory. Recovery is very up and down, support needs to be consistent to help build resilience throughout. The knowledge to victims that the one-to-one relationship that they have built with their support is coming to an end often causes great anxiety."
NN
and
LP
and the serious harm they would have suffered if their support had been withdrawn. Even though I cannot quantify the exact number, it is not difficult for me to infer that there will be some – perhaps many - other individuals in the class with which I am concerned who will be similarly harmed if their support is withdrawn. Ex hypothesi they are all victims of trafficking and very many, if not the majority, will have undergone experiences akin to those suffered by
LP
(trafficked and repeatedly raped) and
NN (trafficked, held in slave conditions and then badly beaten). I readily conclude that there will be those among the general class who have suffered and are suffering mentally and physically as a result of the ordeals they have gone through and who will be irreparably harmed if their support ends.
"9. We take a pragmatic view in terms of when to make extension requests, and generally only make requests when we know they will not be refused. I am not aware of any published criteria against which our requests will be considered, although from experience we know that requests made on certain grounds are more likely to be successful. I was told verbally in a meeting with by the Modern Slavery Unit of the Home Office that extension requests will only be granted in very limited circumstances …
11. If a request to extend funding for support is rejected, we usually receive rejection reasons. I believe that it is possible to challenge extension rejections, though I do not know of any published guidance for doing so, or on the basis for which such challenges will be considered."
"We are confident that, with our current number of support workers, we could accommodate the extension of support ordered by Julian Knowles J for at least three months. We also consider that we would be able to recruit and train new support workers within a relatively short period, providing that this is paid for by the Home Office."
Conclusions