EOG v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Dingemans LJ,Sir Geoffrey Vos MR |
| Judgment Date | 17 March 2022 |
| Neutral Citation | [2022] EWCA Civ 307 |
| Docket Number | Case No: CA-2021-000453 |
| Court | Court of Appeal (Civil Division) |
and
[2022] EWCA Civ 307
Sir Geoffrey Vos, MASTER OF THE ROLLS
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
and
Lord Justice Dingemans
Case No: CA-2021-000453
CA-2021-000284
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Mostyn (EOG)
Mr Justice Linden (KTT)
[2020] EWHC 3310 (Admin) (EOG)
[2021] EWHC 2722 (Admin) (KTT)
Royal Courts of Justice
Strand, London, WC2A 2LL
Amanda Weston QC and Miranda Butler (instructed by Duncan Lewis) for EOG
Chris Buttler QC and Zoe McCallum (instructed by Duncan Lewis) for KTT
Robin Tam QC, William Irwin (in EOG) and Emily Wilsdon (in KTT) (instructed by the Treasury Solicitor) for the Appellant
Ayesha Christie (instructed by Freshfields Bruckhaus Deringer LLP) for the Intervener
Hearing dates: 8, 9 & 10 February 2022
Approved Judgment
INTRODUCTION
The Secretary of State for the Home Department appeals against two separate decisions that aspects of her policy about the grant of leave to remain to victims of trafficking are unlawful. In bare outline:
(1) EOG, who is a national of New Zealand, was at the time to which her claim relates a “potential victim of trafficking”: that is, a decision had been made that there were reasonable grounds to believe that she was a victim of trafficking, but a final (“conclusive grounds”) decision had not been made (she has since received a positive conclusive grounds decision). Her complaint is that the Secretary of State's policy does not provide for the grant of leave to remain to potential victims of trafficking. By a judgment handed down on 3 December 2020 Mostyn J upheld that complaint.
(2) KTT, who is a Vietnamese national, was at the relevant time a confirmed victim of trafficking: that is, she had received a positive conclusive grounds decision. She had also made a claim for asylum on the basis of the risk of being re-trafficked if she were returned to Vietnam. Her complaint is that the policy should have provided for the grant of leave to remain pending a decision on her asylum claim. By a judgment handed down on 12 October 2021 Linden J upheld that complaint.
In both cases the basis of the Judge's decision was that the Secretary of State's policy did not comply with the requirements of the Council of Europe Convention on Action against Trafficking in Human Beings (“ECAT”).
EOG was represented before us by Ms Amanda Weston QC, leading Ms Miranda Butler, and KTT by Mr Chris Buttler QC, leading Ms Zoe McCallum. The Secretary of State was represented in both appeals by Mr Robin Tam QC, leading Mr William Irwin in EOG and Ms Emily Wilsdon in KTT.
The AIRE Centre was given permission to intervene in EOG. It filed written submissions settled by Ms Samantha Knights QC and Ms Ayesha Christie, and Ms Christie also advanced short oral submissions.
The appeal in EOG was in fact listed before this Court on 15 July last year, but it was adjourned on the application of the Secretary of State in circumstances to which I shall have to return.
THE LEGAL FRAMEWORK
THE RELEVANT PROVISIONS OF ECAT
ECAT was adopted by the Council of Europe on 16 May 2005. It has ten chapters. We are only concerned with chapter III, which is headed “Measures to protect and promote the rights of victims, guaranteeing gender equality”. It comprises articles 10–17. The articles which are relevant for our purposes are articles 10 and 12–14.
Article 10 is of a preliminary character, in that it provides for how state parties should identify the victims to whom the substantive benefits provided for in the rest of the chapter should be accorded. It reads (so far as relevant):
“ Identification of the victims
1. Each Party shall provide its competent authorities with persons who are trained and qualified in preventing and combating trafficking in human beings, in identifying and helping victims, including children, and shall ensure that the different authorities collaborate with each other as well as with relevant support organisations, so that victims can be identified in a procedure duly taking into account the special situation of women and child 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.
3–4. …”
Article 10 thus provides for an interim period between a “reasonable grounds” decision and the end of the “identification process”, i.e. a final decision that a person is a victim: I will call this “the identification period”. During the identification period the potential victim (1) “shall not be removed” and (2) must receive the assistance specified in paragraphs 1 and 2 of article 12.
Article 12 reads (so far as relevant):
“ Assistance to victims
1. Each Party shall adopt such legislative or other measures as may be necessary to assist victims in their physical, psychological and social recovery. Such assistance shall include at least:
a standards of living capable of ensuring their subsistence, through such measures as: appropriate and secure accommodation, psychological and material assistance;
b access to emergency medical treatment;
c translation and interpretation services, when appropriate;
d counselling and information, in particular as regards their legal rights and the services available to them, in a language that they can understand;
e assistance to enable their rights and interests to be presented and considered at appropriate stages of criminal proceedings against offenders;
f access to education for children.
2. Each Party shall take due account of the victim's safety and protection needs.
3. In addition, each Party shall provide necessary medical or other assistance to victims lawfully resident within its territory who do not have adequate resources and need such help.
4. Each Party shall adopt the rules under which victims lawfully resident within its territory shall be authorised to have access to the labour market, to vocational training and education.
5–7. …”
The assistance provided for under paragraphs 1 and 2 of article 12 (which are those referred to in article 10.2) is less extensive than that under paragraphs 3 and 4: in R (JP) v Secretary of State for the Home Department [2019] EWHC 3346 (Admin), [2020] 1 WLR 918, Murray J helpfully labelled the two levels of assistance as “basic” and “enhanced”. Enhanced assistance is only available to victims who are “lawfully resident”.
Article 13 reads:
“ 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.
2. During this period, the persons referred to in paragraph 1 of this Article shall be entitled to the measures contained in Article 12, paragraphs 1 and 2.
3. The Parties are not bound to observe this period if grounds of public order prevent it or if it is found that victim status is being claimed improperly.”
There is a considerable overlap between article 10.2 on the one hand and paragraphs 1 and 2 of article 13 on the other, inasmuch as both provide that during the periods referred to the victim must not be removed/expelled and shall receive basic assistance. That no doubt reflects the fact that in practice the recovery and reflection period will fall wholly or partly within the identification period.
Article 14 reads:
“ Residence permit
1. Each Party shall issue a renewable residence permit to victims, in one or other of the two following situations or in both:
a the competent authority considers that their stay is necessary owing to their personal situation;
b the competent authority considers that their stay is necessary for the purpose of their cooperation with the competent authorities in investigation or criminal proceedings.
2. The residence permit for child victims, when legally necessary, shall be issued in accordance with the best interests of the child and, where appropriate, renewed under the same conditions.
3. The non-renewal or withdrawal of a residence permit is subject to the conditions provided for by the internal law of the Party.
4. If a victim submits an application for another kind of residence permit, the Party concerned shall take into account that he or she holds, or has held, a residence permit in conformity with paragraph 1.
5. Having regard to the obligations of Parties to which Article 40 of this Convention...
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