PK (Ghana) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Lord Justice Hickinbottom,Lord Justice Patten |
| Judgment Date | 08 February 2018 |
| Neutral Citation | [2018] EWCA Civ 98 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2016/0384 |
| Date | 08 February 2018 |
[2018] EWCA Civ 98
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT))
THE HON MR JUSTICE PICKEN
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Patten
Lord Justice Hickinbottom
and
Lord Justice Singh
Case No: C4/2016/0384
The Queen on the application of
Martin Westgate QC and Catherine Meredith (instructed by Wilson Solicitors LLP) for the Appellant
Kerry Bretherton QC (instructed by Government Legal Department) for the Respondent
Hearing date: 23 January 2018
Judgment Approved
Introduction
The Council of Europe Convention on Action against Trafficking in Human Beings 2005 (CETS No 197) (to which I shall refer in this judgment as “the Trafficking Convention”, or just “the Convention”) does not give a foreign national an automatic right to remain in a particular country by virtue of being a victim of trafficking alone; but it does require a state to grant such a victim a residence permit where the competent authority in that state considers that that person's stay in the country is necessary owing to his or her personal situation. The short point in this appeal is whether the policy documents published by the Secretary of State give effect to that obligation. Picken J held that they do. The Appellant contends that he was wrong.
Before us, Martin Westgate QC and Catherine Meredith appeared for the Appellant, and Kerry Bretherton QC for the Secretary of State. At the outset, I thank them for their respective contributions to the debate.
The Legal Background
International Provisions
Article 4 of the European Convention on Human Rights (“the ECHR”) provides that no one shall be held in slavery or servitude, and no one shall be required to perform forced or compulsory labour.
This is supplemented by a number of other international instruments, most notably the Trafficking Convention, signed at Warsaw on 16 May 2005. It was ratified by the United Kingdom on 17 December 2008, and came into force in respect of the United Kingdom on 1 April 2009. There has been no national legislation to give effect to those parts of the Convention with which this appeal is concerned.
Accompanied by an Explanatory Report also dated 16 May 2005 (“the Explanatory Report”), the Convention is intended to be a comprehensive legal instrument focused not only on the prevention of trafficking and the prosecution of traffickers, but also on the protection of victims of trafficking. Thus, the Preamble recognises that “protection of victims” is a “paramount objective” of the Convention; and Article 1(b) includes as a particular purpose of the Convention, not only to protect the human rights of the victims of trafficking, but to “design a comprehensive framework for the protection and assistance of victims…”.
“Measures to protect and promote the rights of victims…” are dealt with in Chapter III of the Convention. Article 10 makes provision for “Identification of the victims”.
Article 10(1) requires each party to provide its competent authorities with persons who are trained in, amongst other things, identifying and protecting victims, so that victims can be identified and, “in appropriate cases”, issued with residence permits under the conditions provided for in Article 14.
Article 10(2) requires each Party to the Convention to:
“… ensure that, if the competent authorities have reasonable grounds to believe that a person has been the victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of [a trafficking offence] 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.”
So far as relevant to this appeal, Article 12 provides as follows:
“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…”.
Article 13 introduces a “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….”
Therefore, during this recovery and reflection period (which is triggered by a decision that there are reasonable grounds for believing the person is the victim of human trafficking), that person cannot be removed from the territory and is entitled to the assistance set out in Article 12(1) and (2).
Article 14(1), headed “Residence permit”, is the key provision for the purposes of this appeal. It provides:
“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 co-operation with the competent authorities in investigation or criminal proceedings.”
Article 14(3) states that:
“The non-renewal or withdrawal of a residence permit is subject to the conditions provided for by the internal law of the Party.”
The Explanatory Note says of Article 14:
“182. … The aim of these requirements is to allow Parties to choose between granting a residence permit in exchange for cooperation with the law-enforcement authorities and granting a residence permit on account of the victim's needs, or indeed to adopt both simultaneously.
183. Thus, for the victim to be granted a residence permit, and depending on the approach the Party adopts, either the victim's personal circumstances must be such that it would be unreasonable to compel them to leave the national territory, or there has been an investigation or prosecution with the victim cooperating with the authorities. Parties likewise have the responsibility of issuing residence permits in both situations.
184. The personal situation requirement takes in a range of situations, depending on whether it is the victim's safety, state of health, family situation or some other factor which has to be taken into account.”
Article 16 deals with “Repatriation and return of victims”. Article 16(2) provides:
“When a Party returns a victim to another State, such return shall be with due regard for the rights, safety and dignity of that person and for the status of any legal proceedings related to the fact that the person is a victim, and shall preferably be voluntary.”
Article 40(4) provides that nothing in the Trafficking Convention affects other rights under international law, including those under the 1951 Refugee Convention. Indeed, Article 14(5) expressly provides that the “granting of a permit according to [Article 14] shall be without prejudice to the right to seek and enjoy asylum”.
Domestic Provisions
As I have already indicated, the United Kingdom has not enacted any national legislation to give legal effect to the material parts of the Trafficking Convention. It has sought to satisfy the obligations imposed upon it by the Convention through executive policy, notably the National Referral Mechanism (“the NRM”). This was established on 1 April 2009, operating on a non-statutory basis under guidance issued by the Secretary of State.
Under the NRM, if one of the designated first-responders (which include law enforcement agencies and various non-governmental organisations and charities) suspects someone of having been the victim of human trafficking it can make a referral to the relevant competent authority, namely the UK Human Trafficking Centre within the National Crime Agency, or, for foreign nationals, the Home Office 1. The competent authority makes an initial decision on whether there are reasonable grounds...
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