R BVN v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Bourne |
| Judgment Date | 16 May 2022 |
| Neutral Citation | [2022] EWHC 1159 (Admin) |
| Docket Number | Case No: CO/878/2021 |
| Year | 2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 1159 (Admin)
THE HON. Mr Justice Bourne
Case No: CO/878/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Chris Buttler QC and Gayatri Sarathy (instructed by Duncan Lewis Solicitors) for the Claimant
Robin Tam QC and Benjamin Tankel (instructed by Government Legal Department) for the Defendant
Hearing date: 5 th April 2022
Approved Judgment
INTRODUCTION
The claim
This judicial review claim concerns the treatment of a migrant who has been identified as a potential victim of human trafficking, and the lawfulness of statutory guidance issued by the Defendant under section 49 of the Modern Slavery Act 2015.
The claim raises two distinct questions or topics:
(1) Is the Defendant's statutory guidance unlawful because it permits a potential victim of trafficking to withdraw from the National Referral Mechanism (“NRM”) without imposing a requirement of informed consent (and/or was it therefore unlawful for the Defendant to take steps to remove the Claimant from the UK following such a withdrawal)?
(2) If the High Court grants unconditional bail to a person in immigration detention, is it lawful for the Secretary of State then to impose a condition on the person's release requiring them to report periodically to a specified location?
The legal provisions relating to human trafficking.
The UK is a signatory to the European Convention Against Trafficking (“ECAT”). ECAT is an unincorporated treaty which is not enforceable in the domestic courts. However, it is common ground between the parties that the Defendant has published a policy commitment to give effect to articles 10–13 of ECAT. The Claimant's position, that an unjustified departure from that policy would be unlawful, has been accepted by the Defendant in previous cases: see the references in MS (Pakistan) v SSHD [2020] UKSC 9, [2020] 1 WLR 1373 at [20] per Baroness Hale. The Defendant does not contest the point in this Court but reserves her position if the case is appealed to a higher Court.
Of central importance under ECAT is an obligation on contracting States to identify potential and actual victims of “modern slavery”, which includes human trafficking and slavery, servitude and forced labour. That is reflected in the UK by section 49 of the Modern Slavery Act 2015, which provides:
“(1) The Secretary of State must issue guidance to such public authorities and other persons as the Secretary of State considers appropriate about –
(a) the sorts of things which indicate that a person may be a victim of slavery or human trafficking;
(b) arrangements for providing assistance and support to persons who there are reasonable grounds to believe may be victims of slavery or human trafficking;
(c) arrangements for determining whether there are reasonable grounds to believe that a person may be a victim of slavery or human trafficking.”
The Defendant has accordingly issued guidance under section 49 which is applicable in England and Wales (“the Guidance”). The Guidance has been amended from time to time. The parties agree that the most recent edition, version 2.8 which was published in March 2022, does not differ materially from the version which was in force at the time of the relevant events. It is therefore convenient for this judgment to refer to the current version.
Under the Guidance, “First Responder Organisations” (including law enforcement agencies, local authorities and immigration officials) and other public authorities who encounter potential victims of modern slavery are required to refer those individuals to the NRM, which is the UK's framework for identifying and supporting victims of modern slavery.
Following a referral, decision-making is carried out by the “Single Competent Authority” (“SCA”) in two stages.
Within 5 days of an individual's referral to the NRM, the SCA should make a “reasonable grounds” (“RG”) decision, i.e. whether the decision-maker suspects but cannot prove that the individual is a victim of modern slavery. If that decision is positive, the individual should be given a “recovery and reflection period” of at least 45 days, during which they cannot be removed from the UK and must be given support of various kinds. An individual who is in immigration detention will normally be released unless there are “public order” reasons to do otherwise.
The second stage is a “conclusive grounds” (CG”) decision as to whether, on the balance of probabilities, the individual is a victim of modern slavery. A CG decision requires evidence gathering and although there is a target of making such a decision within 45 days, in practice there are long delays, often of over a year. A positive CG decision could provide a basis for the individual to make applications under the immigration system e.g. for asylum, leave to remain and/or family reunion.
Individuals who have been referred to the NRM receive support and assistance in different ways, depending on whether they are at liberty or in immigration detention.
For those not in detention, support is provided under the Modern Slavery Victim Care Contract (“MSVCC”) delivered by the Salvation Army. Paragraph 8.22 of the Guidance states that those who consent to enter this support:
“… will receive advocacy to access this support. This will usually be provided by a support worker in Modern Slavery Victim Care Contract accommodation or a support worker engaged in outreach support.”
The range of types of support is listed at paragraph 8.28 of the Guidance:
“• Accommodation and Emergency Accommodation
• Financial support and material assistance
• Translation and interpretation services
• Information on rights and services
• Medical treatment, assistance and counselling
• Assistance during criminal proceedings
• Access to the labour market, vocational training and education
• Access to legal representation and legal aid
• Pursuing compensation
• Travel to appointments
• Assistance to return to home country if not a UK national and Discretionary Leave
• Support in transitioning to alternative support services.”
Annex F of the Guidance explains in more detail that support workers in MSVCC accommodation or engaged in outreach support “should be able to provide potential victims … with information on the rights and services available to them” and that this should be in a language which the potential victim can understand and, where possible, in writing (Annex F, paragraphs 15.51–53)
Those in detention, however, do not enter the MSVCC and are not assisted by its support workers. They are supported by way of the existing facilities in each Immigration Removal Centre (“IRC”) or other place of detention. In R (EM) v SSHD [2018] EWCA Civ 1070, [2018] 1 WLR 4386, the Court of Appeal (per Peter Jackson LJ at [40]) found that the regime at IRCs provides:
“(1) Accommodation, catering facilities, leisure and recreation facilities, religious arrangements, education classes, opportunities for paid work, and access to social and legal visits.
(2) Health screening of all detainees on arrival, and thereafter healthcare provision equivalent to the primary community healthcare services provided to the general public.
(3) A range of psychological services according to need.
(4) The right to legal advice. Libraries in immigration removal centres contain a range of reference materials and resources. Detainees are entitled to keep a mobile phone. Weekly legal surgeries are held.
(5) Telephone interpretation is available to help staff speak to detainees.”
The background facts
According to the Claimant, a Vietnamese national, he first arrived in the UK via Russia in the back of a lorry in 2009. On arrival he was discovered and detained for 14 days and then, a day after his release, he was captured by traffickers. In 2013 he escaped and returned to Vietnam. In 2018 he was again brought to the UK in the back of a lorry and was taken to a warehouse where he was required to tend cannabis plants. In January 2019 he was arrested, made allegations of having been trafficked and was referred by police to the NRM, using an alias. The NRM made a positive reasonable grounds (“RG”) decision on 17 January 2019 but a negative conclusive grounds (“CG”) decision on 11 March 2019.
He pleaded guilty to cannabis production and on 16 July 2019 was sentenced to 8 months in prison. Having spent that time on remand, he was taken into immigration detention on the same date. On 18 July 2019 he was served with a Stage 1 deportation notice.
On 16 August 2019 the Claimant was moved to an IRC and was referred to the NRM for a second time, now under his real name. On 4 September 2019 he received a positive RG decision, but the Defendant voided the referral because it duplicated the referral made under a different name in January 2019.
On 19 December 2019 the Single Competent Authority (“SCA”) agreed to reconsider the previous negative CG decision within 3 months, having regard to submissions by the Claimant and to the information contained in the duplicate referral. However, no new CG decision was made.
Following commencement of a judicial review claim, the Claimant was released from detention on 17 January 2020. It is agreed that, at that time, he will have been given the assistance of a support worker.
However, he was reported missing on 13 February 2020, having once again been trafficked and forced to grow cannabis.
On 4 September 2020 he was found, arrested and remanded in custody. On or around 30 September 2020 he was referred to the NRM for a third time.
At this time he was represented by solicitors (not Duncan Lewis who represent him in this claim) in the...
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