R (BG) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 12 April 2016 |
| Neutral Citation | [2016] EWHC 786 (Admin) |
| Docket Number | Case No: CO/6400/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 April 2016 |
[2016] EWHC 786 (Admin)
The Hon. Mr Justice Cranston
Case No: CO/6400/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Parosha Chandran and Claire Physsas (instructed by Duncan Lewis Solicitors) for the Claimant
Catherine Rowlands (instructed by the Government Legal Department) for the Defendant
Hearing dates: 15/03/2016 and 16/03/2016
I INTRODUCTION
This judicial review raises issues about the definition of human trafficking and its application to the claimant; the relationship between the Dublin Regulation for the return of asylum seekers within the EU on the one hand and international human trafficking instruments, Article 4 of the European Convention on Human Rights ("ECHR") and the Secretary of State's policies on the other; and whether the claimant and her child ought to be returned to Italy in light of conditions there, an assurance by the Italian authorities about how families will be treated on return, and a pending appeal on returns to Italy under the Dublin Regulation.
II LEGAL AND POLICY BACKGROUND
The Council of Europe agreed the Convention on Action against Trafficking in Human Beings ("the Trafficking Convention") in 2005. The scope of the Convention in Article 2 such that it applies equally to national as well as transnational trafficking. In defining trafficking in persons Article 4 of the Convention replicates Article 3 of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children 2000, supplementing the UN Convention against Transnational Organised Crime 2000 ("the Palermo Protocol"). Article 4 is as follows:
"a. "Trafficking in human beings" shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
b. The consent of a victim of "trafficking in human beings" to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used…"
Article 10 of the Convention provides for the identification of victims of trafficking. Article 10(2) reads:
"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…"
Under Article 13 the Parties to the Convention must provide a recovery and reflection period of at least 30 days, if there are reasonable grounds to believe that the person concerned is a victim of trafficking so that he or she can recover and escape the influence of traffickers and/or to take an informed decision on cooperating with the competent authorities. During this period Article 13 states that it is not possible to enforce any expulsion order against that person and the Parties must authorise the persons concerned to stay in their territory. Those found to be victims are to be issued with residence permits under the conditions provided for in Article 14 of the Convention.
The Explanatory Report on the Convention states that trafficking in human beings consists of a combination of the three basic components given in the definition,
• the action of "recruitment, transportation, transfer, harbouring or receipt of persons";
• by means of "the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person"; and
• for the purpose of exploitation, which includes "the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs": [74].
The Explanatory Report continues:
"75. Trafficking in human beings is a combination of these constituents and not the constituents taken in isolation. For instance, "harbouring" of persons (action) involving the "threat or use of force" (means) for "forced labour" (purpose) is conduct that is to be treated as trafficking in human beings… Similarly recruitment of persons (action) by deceit (means) for exploitation of prostitution (purpose).
76. For there to be trafficking in human beings ingredients from each of the three categories (action, means, purpose) must be present together…"
As to actions and means, the Explanatory Memorandum states, inter alia:
"78. The actions the Convention is concerned with are "recruitment, transportation, transfer, harbouring or receipt of persons". The definition endeavours to encompass the whole sequence of actions that leads to exploitation of the victim…
80. As regards "transportation", it should be noted that, under the Convention, transport need not be across a border to be a constituent of trafficking in human beings…
83. By abuse of a position of vulnerability is meant abuse of any situation in which the person involved has no real and acceptable alternative to submitting to the abuse. The vulnerability may be of any kind, whether physical, psychological, emotional, family-related, social or economic. The situation might, for example, involve insecurity or illegality of the victim's administrative status, economic dependence or fragile health. In short, the situation can be any state of hardship in which a human being is impelled to accept being exploited. Persons abusing such a situation flagrantly infringe human rights and violate human dignity and integrity, which no one can validly renounce."
The Explanatory Memorandum continues that a wide range of means must be contemplated including violence by pimps to keep prostitutes under their thumb and taking advantage of a person's position of vulnerability. It adds that the various cases reflect differences of degree rather than any difference in the nature of the phenomenon: [84]. Trafficking can occur before the exploitation of a person begins: [87].
In commenting on Article 13 the Explanatory Report states that a victim must not be removed from a Party's territory during the recovery and reflection period, and each Party must provide victims, without delay, with the relevant documents authorising them to remain on its territory during that period.
In the European Union Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims ("EU Trafficking Directive") was adopted on 5 April 2011. It replaced Council Framework Decision 2002/629/JHA. The Directive adopts and expands upon the obligations and definitions contained in the Palermo Protocol and the Trafficking Convention. It is concerned in the main with the criminalising of trafficking in human beings. However Article 11, supported by recital (18), requires Member States to take the necessary measures to establish appropriate mechanisms aimed at the early identification of those trafficked and to provide assistance to and support for victims: see R (Gudanaviciene) v. Director of Legal Aid Casework [2014] EWCA Civ 1622 [2015] 1 W.L.R. 2247.
Article 4 of the European Convention on Human Rights provides for freedom from slavery, servitude and forced labour. In Rantsev v. Cyprus [2010] ECHR 25965/04; 28 EHRC 313, the Strasbourg Court interpreted it as extending to human trafficking. In assessing whether there had been a violation of Article 4, the Court said in familiar language that national legislation had to ensure the practical and effective protection of the rights of victims or potential victims of trafficking. In addition to criminal law measures to punish traffickers, the Court said, Article 4 required member states to take operational measures to protect victims, or potential victims, of trafficking and to investigate potential cases of trafficking. The Court referred to the Palermo Protocol and the Trafficking Convention: [279]–[289].
The UK ratified the Trafficking Convention on 17 December 2008 and it entered into force on 1 April 2009. This led to the creation of the UK's National Referral Mechanism ("the NRM") in 2009. The Convention is implemented in the UK by means of the Secretary of State's policies on human trafficking in the form of Home Office Guidance. There was no submission before me that the Secretary of State's policies are inconsistent with the provisions of the Trafficking Convention or with Article 4 ECHR.
First is the Home Office Guidance, Victims of human trafficking – competent authority guidance ("the HO competent authority guidance"). The version relevant in the present claim was valid from 24 October 2013, although there is...
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