R EK v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Gilbart |
| Judgment Date | 27 March 2015 |
| Neutral Citation | [2015] EWHC 1193 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 March 2015 |
| Docket Number | C0/16106/2013 |
[2015] EWHC 1193 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Gilbart
C0/16106/2013
Ms Nathalie Lieven QC and Ms Catherine Meredith (instructed by NINA RATHBONE-PULLEN Wilson Solicitors LLP) appeared on behalf of the Claimant
Ms Samantha Broadfoot (instructed by Treasury Solicitor) appeared on behalf of the Defendant
Two matters before we start, first of all having reread the papers there was a Newton hearing. I am now quite satisfied that there was a Newton hearing in which XB took part but there are still some mysteries about it. Secondly, my intention when giving judgment is to refer to the claimant anonymously and I intend to refer to the country as Aland. Does anyone have any objection to that course?
MS LIEVEN: No, my Lord.
MS BROADFOOT: No, my Lord.
This is an application for interim relief made on behalf of the Claimant XB. For reasons which appear below, it is important that she remains anonymous. Similarly, I shall only refer to the country where she resides currently as Aland, of which she is a citizen.
In late 2010, when she resided in the United Kingdom, the Claimant was arrested and detained on suspicion of being involved in offences relating to the trafficking and control of prosecution. She faced an indictment to the Crown Court alongside a man S. In due course both defendants entered guilty pleas. She pleaded guilty to the control of prostitutes (but not to any offence of trafficking), together with other offences relating to the possession of false passports and identity documents and also to the transfer of large sums abroad which were earned in a business. The co-defendant S entered guilty pleas to offences of trafficking. Both pleaded guilty after the submission of a written basis of plea. A hearing in accordance with the authorities in R v Newton [1483] 77 Cr App Rep 13 (known to everyone in the criminal courts as a Newton hearing) seems to have been held. That appears from a copy of the submissions made by defence counsel. XB's basis of plea contended that she had played a subordinate role and had received no reward. She contended that her transfer of money abroad was in part of her own earnings and in part S using her money transfer account to send money abroad.
Her written basis of plea also referred to submissions that would be made on her behalf about her involvement in what was called the sex trade. The submissions made by defence counsel after the evidence had been given (including, it appears from the submissions, from her) state that the prosecution accepted that XB was herself a victim of trafficking from a very young age and had been the subject of considerable violence. Counsel also informed the judge that she had given her consent to referral to the National Referral Mechanism, which deals with those who say they have been trafficked.
In the event, S received a sentence of 10 years' imprisonment on two counts of trafficking for sexual exploitation, one into the United Kingdom and the other within it. The judge rejected his basis of plea having heard two of the prostitutes concerned and found that he had engaged in substantial coercion. He considered that the offences were so serious that he should pass a sentence higher than that in the definitive guidelines. He sentenced him to 10 years on each of those two counts concurrent. On another count of conspiracy to control prostitutes in which no coercion was involved, but 15 prostitutes were controlled, he sentenced him to four years' imprisonment concurrent. On another count of removing criminal property from the United Kingdom, he received a 2 year concurrent sentence, and he received concurrent sentences of 12 months and 6 months' imprisonment respectively for offences of the possession of criminal property.
So far as XB was concerned, there had been some cross-examination of the witnesses in the Newton hearing. The transcript of the sentencing remarks does not reveal whether the judge accepted the basis of plea but there is no sign that he rejected it. What he found is that she was part of a team with S and had assisted him in running what was a business. That was not inconsistent with the basis of plea. The judge made an express finding that she had coerced no-one. She received a sentence of 30 months' imprisonment on the conspiracy to control prostitutes together with short concurrent sentences of 12 months' imprisonment on counts relating to possession of false passports and a false identity card. She was also sentenced to 18 months' imprisonment concurrent for being involved in the removal of criminal property from the United Kingdom, amounting to between £100–150,000. The judge made a recommendation for deportation in the case of S but not in the case of XB. In fact, since the authority of R v Kluxen [2010] EWCA Crim 1081, [2011] 1 CR App Rep (S) 39, [2011] 1 WLR 218 per Thomas PQBD (as he then was) it has been inappropriate to make a recommendation for deportation. But the significant point of course is that the judge declined to do so in the case on XB referring to "let(ting) whatever procedures are to be done on her behalf be done". That was a reference to the submission made to him by her counsel that she had agreed to be referred to the National Referral Mechanism.
There was a confiscation hearing under the Proceeds of Crime Act. No-one has put the Crown Court record before me. Such evidence as there is shows that there was a consent order whereby the benefit was said to be £100,000 and the recoverable amount £30. I have seen no judgment or other justification for either figure. It used to be commonplace in criminal courts that consent orders of that kind were made without any judgment being given. The practice was strongly criticised by Thomas LJ (then PQBD) in R v Aujla [2008] EWCA Crim 637 at paragraph 28.
I have spent a little time on what occurred at the Crown Court, because much of what has happened since has reflected a view of what occurred there.
Because of the sentences XB had received, totalling 30 months, she was subject to automatic deportation under section 32 of the UK Borders Act 2007 unless an exception under section 33 applied. In this case the application for an exception was made under Exceptions 1 and 6. Exception 1 reads:
"Where removal of the foreign criminal in pursuance of a deportation order would breach —
"(a) a person's Convention rights, or
"(b) the United Kingdom's obligation under the Refugee Convention."
Exception 6 (which was inserted into the Act with effect from 1 April 2009) reads:
"Exception 6 is where the Secretary of State thinks that the application of section 32(4) and (5) would contravene the United Kingdom's obligation under the Council of Europe Convention on Action against Trafficking on Human Beings (done at Warsaw on 16 May 2005)."
Both exceptions were cited in the representations made to the Home Secretary about whether she should be deported and she also claimed asylum.
On 6 February 2012 an officer of the UK Border Agency, acting as Competent Authority, issued a decision on whether there were reasonable grounds to treat XB as a victim of trafficking. In a very short letter she concluded that there were not. She found that XB had freedom of movement and was not under the control of another. I regard it as regrettable that that officer never sought any information about what had happened at the Crown Court hearing, beyond saying that she had regards to the remarks of the sentencing judge (without citing them) and the views of the investigating officer. I have noted already what defence counsel had submitted about the concessions by the Crown but there is no indication that anything about the Crown's case, as presented in court, was given to the Competent Authority. I should add that to experienced criminal judges, reliance on the views of the investigating officer, while of course of value, can give less than the full picture save in the most straightforward cases. There were other flaws in that decision to which I shall refer in due course.
But be that as it may, there was a decision by the designated Competent Authority. XB was released from her sentence of imprisonment in March 2012, and then detained under immigration powers.
In June 2012, the Home Secretary refused her asylum and ordered her deportation. The decision letter:
i) rejected her asylum claim on the basis that she had no well founded fear of persecution;
ii) she would be of no interest to the authorities on her return to the main airport in Aland;
iii) her removal would not contravene articles 2 or 3 of the European Convention on Human Rights;
iv) her conviction of the offence of controlling prostitutes (wrongly stated in the letter to B as "conspiracy to traffic into the UK and conspiracy to control prosecution for gain)" disqualified her under Rule 339 for humanitarian protection;
v) refused discretionary leave;
vi) considered in the light of section 72(2) of the Nationality and Immigration Act 1972 that her offences relating to prostitution (again wrongly stated to relate to trafficking) and those relating to identity cards and documents meant that the Geneva Convention was disapplied in her case;
vii) decided that there was no article 8 claim.
It is to be noted in the course of dealing with the asylum claim that the letter referred to the decision of the Competent...
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