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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> EOG (Anonymity Order Made) v Secretary of State for the Home Department (Rev 1) [2020] EWHC 3310 (Admin) (03 December 2020) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2020/3310.html Cite as: [2021] Imm AR 564, [2021] ACD 24, [2021] WLR 1875, [2020] WLR(D) 658, [2020] EWHC 3310 (Admin), [2021] 1 WLR 1875 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
EOG (anonymity order made) |
Claimant |
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- and – |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
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Robin Tam QC and William Irwin (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 24 November 2020
____________________
Crown Copyright ©
Mr Justice Mostyn:
i) cannot be removed from this country (see Article 10.2 and the Explanatory Report at para 132);
ii) gains the benefit of the "recovery and reflection period" referred to in Article 13 which must last at least 30 days (but which probably should be longer (see the Explanatory Report at para 177)) and which is set at 45 days in this country (see the Main Guidance at paras 7.1 and 7.2); and
iii) gains entitlement to the assistance specified in Article 12(1) and (2) (see the Explanatory Report at paras 135 and 147).
"The aim of the assistance provided for in sub-paragraphs (a) to (f) [of Article 12.1] is to "assist victims in their physical, psychological and social recovery". The authorities must therefore make arrangements for those assistance measures while bearing in mind the specific nature of that aim."
The obligation on the state to assist potential victims awaiting a conclusive grounds decision in their physical, psychological and social recovery is at the heart of the dispute in this case.
"… decisions must be taken in a reasonable time. What is reasonable, however, will turn on the nature of the power being exercised, the effect of exercising, and failing to exercise, the power, and all the circumstances of the case."
"The SCA will make a Conclusive Grounds decision no sooner than 45 calendar days after the reasonable grounds decision, to determine whether 'on the balance of probabilities' there are sufficient grounds to decide that the individual is a victim of modern slavery. This decision is based on evidence made available to the SCA. Following a positive Conclusive Grounds decision, victims will be exited from support only when appropriate to do so. Victims with a positive Conclusive Grounds decision will receive at least 45 calendar days of support during the move-on support period."
Para 7.2 states:
"Conclusive Grounds decision is made by the SCA. The Conclusive Grounds decision should generally be made as soon as possible after 45 calendar days."
At para 14.77 it states:
"There is no target to make a Conclusive Grounds decision within a specific timeframe. A Conclusive Grounds decision should be made as soon as possible after the 45-calendar day Recovery Period has ended, unless the SCA has received a request to delay the decision. The 45-day period begins when the SCA makes a positive Reasonable Grounds decision. The SCA is responsible for making a Conclusive Grounds decision."
And at para 14.243:
"To make sure that a Conclusive Grounds decision can be made as near as possible to day 45 (although that may not be possible in every case), a review date for day 30 should be set to:
• monitor progress on the case
• check it is on target for a conclusive decision."
(Emphasis added)
"[Article 12.4] provides that each Party is to adopt the rules under which victims lawfully resident in the Party's territory are allowed access to the labour market, to vocational training and to education. In the drafters' view these measures are desirable for helping victims reintegrate socially and more particularly take greater charge of their lives. However, ECAT does not establish an actual right of access to the labour market, vocational training and education. It is for the Parties to decide the conditions governing access. As in paragraph 3, the words "lawfully resident" refer, for instance, to victims who have a residence permit referred to in Article 14 or who have the Party's nationality. The authorisation referred to need not involve issuing an administrative document to the person concerned that allows them to work."
It states at page 7:
"Discretionary leave may be considered under this specific policy where the SCA has made a positive conclusive grounds decision that an individual is a victim of modern slavery and they satisfy one of the following criteria:
• leave is necessary owing to personal circumstances
• leave is necessary to pursue compensation
• victims who are helping police with their enquiries."
And at page 11:
"A positive conclusive grounds decision does not result in an automatic grant of immigration leave. However, unless the confirmed victim has an outstanding asylum claim at the time the positive conclusive grounds decision is made, automatic consideration should normally be given at the same time, or as soon as possible afterwards, to whether a grant of discretionary leave is appropriate under this policy." (Emphasis added)
"Furthermore, it appears from the evidence and the agreed statistics that the position is now improving. The problems appear to have been identified and resources are being devoted to improving the speed at which cases are determined."
"Secondly, Mr Biggs relied on the legal consequences for an applicant who remained in the UK without leave, which have been rendered more severe by the so-called "hostile environment" provisions introduced by the Immigration Act 2014. It is, in the first place, a criminal offence to be in the UK without leave to remain: see section 24 of the Immigration Act 1971. As regards practical consequences, a person without leave faces severe restrictions on their right to work (see section 24B of the 1971 Act), to rent accommodation (section 22 of the 2014 Act), to have a bank account (section 40 of the 2014 Act) and to hold a driving licence (sections 97, 97A and 99 of the Road Traffic Act 1988); nor will they be entitled to free treatment from the NHS: section 175 of the National Health Service Act 2006. He submitted that those consequences are bound to have a serious impact on a migrant's private life irrespective of any removal action."
"Article 10 – Identification of the victims
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 and shall likewise ensure that that person receives the assistance provided for in Article 12, paragraphs 1 and 2."
"Article 13 – Recovery and reflection period
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 their territory."
Ms Weston QC argues that the mention of "this period" in the final sentence (which I have underlined) refers to, and is governed by, the scenario in the immediately preceding sentence namely the time taken to undertake the activities carried out by the competent authorities in all phases of the relevant national proceedings. Ms Weston QC says that "these activities" plainly extend to reaching a conclusive grounds decision. Therefore, in that period the state must authorise the person to stay here. That can only be done by a grant of discretionary leave.
Note 1 www.gov.uk/government/publications/modern-slavery-national-referral-mechanism-and-duty-to-notify-
statistics-uk-quarter-2-2020-april-to-june/modern-slavery-national-referral-mechanism-and-duty-to-notify-
statistics-uk-quarter-2-2020-april-to-june
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