R DS v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr |
| Judgment Date | 15 November 2019 |
| Neutral Citation | [2019] EWHC 3046 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4466/2018 |
| Date | 15 November 2019 |
[2019] EWHC 3046 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Bristol Civil Justice Centre
2 Redcliff St, Bristol BS1 6GR
Judgment handed down at:
Royal Courts of Justice
7 Rolls Building, Fetter Lane,
London EC4A 1NL
Mr Justice Kerr
Case No: CO/4466/2018
Ms Shu Shin Luh (instructed by Deighton Pierce Glynn Solicitors) for the Claimant
Mr William Irwin (instructed by Government Legal Department) for the Defendant
Hearing date: 11th October 2019
Approved Judgment
Introduction
This judicial review application challenges the government's policy requiring that a person whose claim to be a victim of human trafficking has been rejected, can only have the decision reconsidered if one of a class of bodies intercedes with government on the person's behalf. The claimant's individual claim has been now been resolved by a recent decision on reconsideration after initial rejection, that she is, after all, a victim of trafficking.
The essence of the challenge is that the state is responsible under international law instruments for identifying and assisting victims of trafficking and may not delegate important aspects of that duty to non-state bodies. It is said that a rigid policy, not on its face admitting of any exceptions, is leading the defendant to close her eyes and mind to relevant evidence that individuals are victims of trafficking after being wrongly identified as non-victims.
The defendant says the policy is reasonable and lawful; it is a legitimate means of performing the state's duty in a manner that is efficient, swift and effective. It is necessary and lawful to bar direct access by individuals and organisations, including legal representatives, to the remedy of reconsideration, so as to manage cases in an orderly way, deter repetitious and long winded advocacy and use the state's resources effectively and efficiently.
Relevant Law and Policy
Signatory states to the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT) have agreed to combat trafficking in human beings using the measures provided for in ECAT. Human trafficking violates article 4 of the European Convention on Human Rights (ECHR), which prohibits slavery, servitude, forced or compulsory labour.
Article 4 of ECAT defines trafficking in human beings. There is a detailed definition. It is common ground that it includes sexual slavery. Article 10 of ECAT contains measures that signatory states must take to protect and promote the rights of victims. This includes a duty to provide trained and qualified persons to identify and help victims through a procedure established by the state.
Since the protection of victims is a paramount objective, identifying the victims is of the first importance. The Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims (the Anti-Trafficking Directive) also requires member states to take measures to identify, assist and protect victims. Article 11(4) provides simply:
“Member States shall take the necessary measures to establish appropriate mechanisms aimed at the early identification of, assistance to and support for victims, in cooperation with relevant support organisations.”
The above propositions form the bare bones of the domestic and international law and policy needed for this case. The parties' written arguments, especially those of the claimant, went into much more detail. I was referred to a substantial body of case law and explanatory materials. I do not find it necessary to refer to all the instruments and cases, except to the extent below.
A more detailed account of the relevant law and policy can be found in Underhill LJ's judgment in R (TDT) v. Secretary of State for the Home Department [2018] 1 WLR 4922; see also Farbey J's account in her judgment in R (MN) v. Secretary of State for the Home Department [2018] EWHC 3268 (QB) at [16]–[26].
The United Kingdom performs its duties under ECAT and the Anti-Trafficking Directive through the National Referral Mechanism (NRM). The NRM is an administrative process operated by the defendant to identify and ensure support and assistance for victims of trafficking. It has no statutory underpinning and is set out in a policy document: Victims of modern slavery – Competent Authority guidance (the CA guidance).
Three different versions of the CA guidance were before me. The first two date from March 2016 and were both labelled “version 3.0”. The third was published on 2 September 2019 and is labelled “version 8.0”. In the MN case, Farbey J upheld the government's submission that it was lawful to apply the balance of probabilities as the standard of proof when making a “conclusive grounds” decision. She explained the process thus, referring to the “version 3.0” published on 21 March 2016, at [2]:
“Under the [CA] guidance, the identification of a person as a victim of trafficking is a two-stage process. The first part is the ‘reasonable grounds decision’ which acts as an initial filter designed to determine whether someone is a ‘potential’ victim of trafficking (p.50). At this stage, when the CA [competent authority] receives a referral under the NRM, it must decide whether it is ‘reasonable to believe’ that a person is a victim of trafficking on the information available (p.50). According to the CA guidance, this standard of proof will be satisfied where the CA ‘suspects but cannot prove’ that a person is a potential victim (p.19). It is a ‘relatively low threshold’ (p.20). The second stage involves further inquiry and leads to a ‘conclusive grounds decision’ as to whether someone ‘is in fact a victim’ (p.50). At this second stage, the CA must consider whether there is sufficient information that the individual is a victim on the balance of probabilities.”
The parties referred me to different parts of different versions of the CA guidance. The only major difference of substance drawn to my attention is that in the latest version, the National Crime Agency (NCA) is no longer a “competent authority”; only the Home Office is; hence the advent of the term “Single Competent Authority” or SCA. That aside, although the wording has changed quite a lot, the substance has not changed much.
Neither counsel submitted that recent changes found in the September 2019 version would affect the outcome of this case. The claimant's case was considered against the previous versions. There must have been others in between, which I have not been shown. I will take the content from the most recent incarnation of the CA guidance except where indicated below.
The CA guidance “gives information for staff in the Single Competent Authority (SCA) in the Home Office, to help them decide whether a person referred under the [NRM] is a victim of modern slavery” (p.7). It describes the legal framework on modern slavery. It states the two stage process; first, the “reasonable grounds” decision and then the “conclusive grounds” decision.
The SCA, i.e. designated specialist staff within the Home Office, replaced the previous competent authorities on 29 April 2019 (p.16). Referrals for consideration by the SCA are received from “first responders”. These bodies are “designated organisations which can refer potential victims of modern slavery in the UK into the NRM” (p.17).
The first responders are then listed: the Home Office itself, local authorities, Health and Social Care Trusts, police forces, the National Crime Agency, Trafficking Awareness Raising Alliance, Migrant Help, Kalayaan, the Gangmasters and Labour Abuse Authority, the Medaille Trust, the Salvation Army, Barnardo's, the National Society for the Prevention of Cruelty to Children, Unseen UK, New Pathways, the Black Association of Women Step Out and the Refugee Council.
Bodies called “support providers” are also recognised by the defendant and in the CA guidance. They are contracted by government to provide care for victims or potential victims, under a “victim care contract”. They are charitable or philanthropic organisations dedicated to protecting and furthering the needs of victims of human trafficking. Some of those organisations feature in the written evidence in this case further mentioned below.
Returning to the CA guidance, there is then much explanation about different types of modern slavery and human trafficking. It makes grim reading; sexual exploitation of children, enforced servitude, sexual slavery, forced criminality and forced removal of body organs are among the topics discussed.
The CA guidance then sets out in more detail the process of evidence gathering for the purpose of carrying out the two stage decision making process. In some cases, it is explained, there will be enough evidence to make a positive “reasonable grounds” decision; in others, further enquiries will be needed.
If the reasonable grounds decision is positive, there is a “recovery and reflection period” of at least 45 days. The SCA must then go on to consider and make a “conclusive grounds” decision. This should be made as soon as possible once the 45 days has elapsed. If there is not enough evidence to make the decision, further evidence must be gathered.
The SCA must “make every effort to request all available information that could prove useful in establishing if there are conclusive grounds” (p.53). This information must be gathered, where appropriate, from the first responder, a support provider, police, a local authority or the Independent Child Trafficking Advocate.
Relevant medical evidence must be considered. There is a separate section on the views of experts during the NRM process (p.73ff). “Potential victims of modern slavery may rely...
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R LH v Secretary of State for the Home Department
...45 Having circulated the draft of this Judgment, the parties referred me to R (DS) v Secretary of State for the Home Department [2019] EWHC 3046 (Admin), which was handed down after the hearing of this case. The Defendant's Reconsideration Guidance was considered in detail by Kerr J. The p......