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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> NN v Secretary of State for the Home Department [2019] EWHC 766 (Admin) (28 March 2019) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2019/766.html Cite as: [2019] EWHC 766 (Admin) |
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CO/1040/2019 |
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
BIRMINGHAM CIVIL JUSTICE CENTRE
33 Bull Street Birmingham B4 6DS |
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B e f o r e :
____________________
NN |
Claimant |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
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And Between: |
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LP |
Claimant |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
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Emily Wilsdon (instructed by GLD) for the Defendant
Hearing date: 21 March 2019
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Crown Copyright ©
The Honourable Mr Justice Julian Knowles:
a. LP is originally from Albania. She was trafficked to the UK and held captive from August 2016 until March 2017 during which she was repeatedly raped. She became pregnant and now has a one-year old daughter. She managed to escape in March 2017.
b. NN is originally from Vietnam. He was trafficked to the UK. He ended up working on a cannabis farm. He tried to escape, and was badly beaten including by having some of his teeth knocked out. He was arrested and prosecuted and imprisoned, and since his release he has been living in a Salvation Army safe house. He has been diagnosed with PTSD and depression.
a. Support pursuant to Article 12 of the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT) and Article 11 of the Directive 2011/36/EU on Preventing and Combating Trafficking in Human Beings and Protecting its Victims (the Directive) (which I will call 'the support duty').
b. A determination whether they should be granted leave to remain pursuant to Article 14 of ECAT (ECAT leave).
a. As well as support between RG and CG decision, the Defendant's policy provides for a package of support until 45 days after the positive CG decision (the 45 day rule). The Claimants contend that the support duty in Article 12 of ECAT and Article 11 of the Directives includes support after the CG decision.
b. An application for ECAT leave will be determined at the same time as a CG decision, unless the individual has claimed asylum, in which case the ECAT leave decision will be deferred until the asylum decision has been taken (the scheduling rule). It is argued in NN's case that this means that victims of trafficking who claim asylum suffer delay, often in excess of one year, in determination of their right to ECAT leave. This, it is said, results in significant financial disadvantage and risks delaying psychological recovery.
a. The 45-day rule is incompatible with ECAT and the Directive and so unlawful because:
(i) The support duty subsists until the individual leaves the UK. This proposition is founded upon a concession to that effect made by the Secretary of State in R(PK (Ghana)) v Secretary of State for the Home Department [2018] 1 WLR 3955, [46].
(ii) The support duty is discharged by the provision of payments pursuant to the support duty and not just NASS support, per Mostyn J in R(K and AM) v Secretary of State for the Home Department [2018] EWHC 2951 (Admin), [25] et seq.
b. The withdrawal of the support duty at 45-days does not involve an assessment of LP's individual needs but is a blanket rule and hence unlawful. This proposition is founded upon R(EM) v Secretary of State for the Home Department [2018] 1 WLR 4386, [66].
a. As being inconsistent with Article 14 of ECAT which, he argues, requires that a renewable residence permit must be granted if the competent authority considers that the victim's stay is necessary owing to their personal situation. He also challenges it on the grounds it fails to take account of the victim's particular needs.
b. As being discriminatory and so in breach of Article 14 of the European Convention on Human Rights.
Discussion
a. Ms Wilsdon very fairly acknowledged that the concession in PK, supra, to which I have referred, presented some obstacles for her in relation to the support duty challenge, but made clear that whether that concession would be maintained was something which the Defendant wished to consider.
b. Furthermore, so far as the challenge to the scheduling rule is concerned, permission has been granted on similar grounds by Andrew Baker J in R(JP) v Secretary of State for the Home Department (CO/4606/2018) and R(BS) v Secretary of State for the Home Department (CO/4608/2018).
a. There was no evidence in front of me. Obviously, I accepted so far as it went what Ms Wilsdon told me, but her submissions were no substitute for proper evidence;
b. In particular, there was no evidence about the criteria that are applied in relation to requests for extensions. Ms Wilsdon told me that a policy on extensions was currently being drafted, but was unable to tell me more than that. It is therefore impossible to know what the outcome would be if LP and NN applied for an extension.