EOG (anonymity order made) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 03 December 2020 |
| Neutral Citation | [2020] EWHC 3310 (Admin) |
| Date | 03 December 2020 |
| Docket Number | Case No: CO/4903/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 3310 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mostyn
Case No: CO/4903/2019
Amanda Weston QC and Miranda Butler (instructed by Duncan Lewis Solicitors) for the Claimant
Robin Tam QC and William Irwin (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 24 November 2020
Approved Judgment
The Council of Europe Convention on Action against Trafficking in Human Beings (“ECAT”) was signed in Warsaw on 16 May 2005. Its paramount objectives, as stated in its recitals, are respect for victims' rights; protection of victims; and action to combat trafficking. In a similar vein, Article 1 provides that the purposes of ECAT are (a) to prevent and combat trafficking in human beings and (b) to protect the human rights of the victims of trafficking and to design a comprehensive framework for the protection and assistance of victims and witnesses.
Although ECAT has not been formally incorporated into our domestic law it has been held that a failure by the government to apply its principles will be justiciable (see, for example, R (PK (Ghana)) v Home Secretary [2018] 1 WLR 3955 and MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9 at [20]). Further, the Modern Slavery Act 2015 states in its explanatory notes that the Act was passed against the backdrop of ECAT and other international instruments and that the guidance that the Secretary of State is obliged to issue under section 49 must take into account the international requirements set out in the Convention. The latest version of that guidance (version 1.02) was re-issued in August 2020 (“the Main Guidance”).
Therefore, ECAT is as close to being incorporated in our domestic law, without actually being so, as it is possible to be.
The obligations imposed by ECAT are discussed and explained in its Explanatory Report also dated 16 May 2005 (“the Explanatory Report”) and have been further considered in authorities stretching to the Supreme Court.
I will also be referring to a further piece of guidance: Discretionary Leave Considerations for Victims of Modern Slavery the latest version of which (3.0) was issued on 9 October 2020 (“the DL Guidance”).
Those documents and authorities set out how this country has sought to comply with its international obligations. The arrangements that have been made are well-known. They are pithily summarised by Baroness Hale of Richmond in MS (Pakistan) v Home Secretary at [2].
In this country a person who is a suspected victim of trafficking is referred to the National Referral Mechanism (“NRM”). This is a body within the Home Office which acts as the competent authority for the purposes of ECAT. Its creation was by executive action alone; it has no statutory origin. Its staff must be trained and qualified in preventing and combatting trafficking. Using legislative and other measures it must seek to “identify” the referred person as a victim. Article 10 provides that the process of identification has two stages. First, there is a preliminary sift to determine if there are “reasonable grounds” to believe that a person has been a victim of trafficking (see the Explanatory Report at paras 131 and 132). If that decision is positive then the potential victim:
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 assistance to be afforded to potential victims under Articles 12.1 and 12.2 is that which is necessary for them in their physical, psychological and social recovery. At a minimum it includes (i) money for accommodation and psychological and material assistance; (ii) access to emergency medical treatment; (iii) access to education for children; and (iv) a general obligation to take account of the victim's safety and protection needs. The Explanatory Report states at para 150:
“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.
For most potential victims these obligations are largely met by the government paying for accommodation; providing a weekly subsistence allowance of £65; and affording access to the NHS and education for children.
Although it is not stated explicitly, it is obvious that an underlying principle of ECAT and its Explanatory Report is that the preliminary reasonable grounds decision should be taken very quickly. This imperative of expedition is reflected in the Main Guidance paras 7.2, 14.48 and 14.57 where it is stated that a reasonable grounds decision should be made within five working days “wherever possible”.
The second stage of the process of identification is for the Single Competent Authority (“SCA”), the decision-making arm of the NRM, to decide on the balance of probability if the referred person is indeed a victim of trafficking. This is known as the “conclusive grounds” decision.
A positive conclusive grounds decision gives rise to an entitlement to a 45-day run-off of the interim support referred to above (see the Main Guidance at paras 7.1 and 7.2). More significantly, it opens the door under Article 14 to the possibility of the issue of a renewable residence permit. I shall deal with this in detail below. A conclusive grounds decision also allows for the meeting of long-term recovery needs for those with such needs.
It is implicit in the terms of ECAT that the conclusive grounds decision should be taken in a reasonable time. In R (O) v SSHD [2019] EWHC 148 (Admin) Garnham J at [67] stated:
“… 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 need to make a conclusive grounds decision in a reasonable time is reflected in the Main Guidance. At para 7.1 it states:
“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)
I turn to residence permits. Under Article 14 of ECAT a residence permit “shall be issued to a victim” where the competent authority considers that their stay in the national territory is “necessary owing to their personal situation” or where it is considered that their stay is “necessary for the purposes of cooperation with the authorities in investigation or criminal proceeding.” For the purposes of Article 14 a “victim” is someone who has had the benefit of a conclusive grounds decision, not merely a reasonable grounds decision.
In this country the victims who will be seeking a residence permit under Article 14 will be those who are not British or EEA citizens.
The Explanatory Report para 181 explains how the immediate return of a victim to her country of origin is unsatisfactory both for the victim and the law enforcement authorities combating the trafficking. It explains how a return may lead the victim back into the hands of traffickers; how it is unlikely to deter other victims from falling into the same trap; and how it may expose victims to a risk of reprisal. From the law-enforcement perspective the availability of residence permits is a measure calculated to encourage victims to cooperate. Para 183 expresses the first ground where it would be reasonable to grant a residence permit as: “the victim's personal circumstances must be such that it would be unreasonable to compel them to leave the national territory”. Para 184 explains that the personal situation requirement will...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2023-02-02, JR-2021-LON-001894
...of challenge. She also noted that the decisions in R (KTT) v SSHD [2021] EWHC 2722 (Admin); [2022] 1 WLR 1312 and R (EOG) v SSHD [2020] EWHC 3310 (Admin); [2021] 1 WLR 1875 were on appeal to the Court of Appeal, and she sought a stay of this claim to await the judgment. Grant of Permission ......
-
The Queen (on the application of KTT) v Secretary of State for the Home Department
...ECAT it will be a justiciable error of law for it to do so incorrectly. R (EOG) v Secretary of State for the Home Department [2020] EWHC 3310 (Admin) 35 Finally, in the EOG case Mostyn J also relied on PK (Ghana) and [20] MS (Pakistan). In view of the fact that it is not necessary for me t......
-
IJ (Kosovo) v Secretary of State for the Home Department
...with Articles 4 and/or 8. 3 After the hearing but before judgment in the present case, Mostyn J gave judgment in R (EOG) v SSHD [2020] EWHC 3310 (Admin). He decided, having regard to ECAT Article 10 (referred to at [11] below) and to the delays which are endemic in the NRM process, that th......
-
EOG v Secretary of State for the Home Department
...EOG Claimant/Respondent and Secretary of State for the Home Department Defendant/Appellant and The Aire Centre Intervener KTT Claimant/Respondent and Secretary of State for the Home Department Defendant/Appellant [2022] EWCA Civ 307 Before: Sir Geoffrey Vos, MASTER OF THE ROLLS Lo......