R EM v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Arden LJ,Lord Justice Peter Jackson,Sharp LJ |
| Judgment Date | 15 May 2018 |
| Neutral Citation | [2018] EWCA Civ 1070 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2016/0814 |
| Date | 15 May 2018 |
[2018] EWCA Civ 1070
Lady Justice Arden
Lady Justice Sharp
and
Lord Justice Peter Jackson
Case No: C4/2016/0814
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
Mr Justice Haddon-Cave
CO/498/2016
Royal Courts of Justice
Strand, London, WC2A 2LL
Martin Chamberlain QC and Christopher Buttler (instructed by Leigh Day) for the Appellant
James Eadie QC and Gwion Lewis (instructed by Government Legal Department) for the Respondent
Hearing date: 25 April 2018
SUMMARY
This is an application for judicial review for which Underhill LJ granted permission on appeal on 22 September 2016, when he further directed that it should be heard in this court rather than in the Administrative Court. It raises two questions:
(1) What is the nature and scope of the State's obligation to provide assistance and support (‘the support duty’) to persons formally identified as potential victims of human trafficking (‘PVoTs’) arising from Articles 11(2) & (5) of Directive 211/36/EU, and from the published policy guidance of the Home Secretary (‘the SSHD’)?
(2) Was the duty discharged in the case of the Claimant, EM, during a period in 2016 when she had been identified as a PVoT but was detained at an immigration removal centre (‘IRC’)?
The Claimant argues that the support duty requires PVoTs to be offered an individualised assessment of their needs so that they can be provided with the assistance necessary for their physical, psychological and social recovery. This assessment is a complex task that must be performed by a specialist in the assessment of victims of trafficking, otherwise meaningful individualised assistance cannot be provided. It is accepted that in relation to PVoTs who are not in detention the duty is discharged by means of a national support service jointly funded by the Home Office and Ministry of Justice, but that service does not extend to detained PVoTs. The different provision that is made for detained PVoTs does not, it is said, discharge the support duty and consequently the treatment of the Claimant was unlawful.
The SSHD accepts that all identified PVoTs must be assessed with a view to meeting their needs as a PVoT. She does not accept that the support duty requires the assessment to be performed by a specialist in human trafficking, or for the support to focus on the issue of human trafficking as opposed to the overall needs of the individual. She contends that the support provided to the Claimant when she was in detention amply discharged the UK Government's duty towards her.
My conclusion, as appears below, is that the Claimant overstates the obligations that arise under the Directive and the policy guidance. The obligation is to provide necessary assistance and support directed to the overall needs of each PVoT. The manner in which needs are to be assessed and assistance provided is not prescribed in the way that the Claimant contends. Nor does the regime that has been put in place for non-detained PVoTs imply an obligation to replicate it for detained PVoTs. The Claimant was provided with a level of assistance and support that met the State's domestic and international legal obligations.
I would therefore dismiss this judicial review application.
This judgment covers the following matters:
A. The Claimant's account
B. The legal proceedings
C. Relevant Law and Policy
D. Current health provision for PVoTs
E. The assistance and support provided to the Claimant
F. Witness evidence
G. Submissions
H. Determination
I. Conclusion
A. THE CLAIMANT'S ACCOUNT
The account given by the Claimant (which has not been accepted by the SSHD) is that she has suffered a number of traumatic experiences. Now in her late 40s, she was born in Nigeria. After an unexceptional early life, she married in 1997 and had a son born in the same year. She studied to be a midwife but was not able to continue when she became pregnant again. During the pregnancy, her husband and son were killed in a car accident in which she was not involved. The circumstances surrounding the funerals were extremely distressing and were followed by severe oppression from her late husband's family. As a result, she and her second child, a daughter, went into hiding. However, she was found, faced threats, and had to move on more than once. She therefore arranged for her daughter to be cared for temporarily while she herself moved overseas to find work. She met a woman who offered to get her work as a carer in the UK with the opportunity to complete her midwifery diploma; if she repaid the expenses involved, her daughter could then join her. In September 2006, this woman brought her to London and gave her a room, but kept her passport. It transpired that the accommodation was a brothel, and the Claimant was forced to engage in prostitution in order to send money back to Nigeria. She was told that if she went to the police, she would be arrested and her family would suffer. After about six months, she escaped with the assistance of a customer, who set her up with accommodation and a cleaning job. An agent helped her to get a false Nigerian passport with fake immigration stamps. When she tried to use this to open a bank account, she was arrested and in October 2008 she was sentenced to 12 months' imprisonment for using a false document. In February 2009, she was detained for the first time at Yarl's Wood IRC for a period of seven months and in April 2009 she was made the subject of a deportation order. In December 2009 she was again detained to facilitate her imminent deportation.
At that point, the Claimant challenged her detention by the first of no fewer than five sets of proceedings that she has brought. She was released, re-arrested and again released. Her application to apply for judicial review was refused as being totally without merit. In March 2010 an attempt was made to re-arrest her, but she had absconded. For 5 1/2 years her whereabouts were unknown to the SSHD.
On 22 September 2015, the SSHD's officers visited a London nursing home with a warrant. Entry was forced after three people were seen trying to escape via the rear. The officers found the Claimant hiding in the back garden. She was detained and returned to Yarl's Wood on 24 September 2015, where she remained until 9 August 2016.
B. THE LEGAL PROCEEDINGS
On 1 October 2015, the Claimant issued her second judicial review claim, challenging her proposed removal and seeking bail, which was refused. She falsely claimed to be pregnant. However, on 6 January 2016, the Secretary of State issued a positive “reasonable grounds” decision, namely that there was reason to believe that she was a PVoT and was entitled to a 45-day reflection and recovery period (‘reflection period’). On 16 January, her application for temporary admission was refused.
The Claimant then issued a third set of judicial review proceedings, challenging her detention and the decision to refuse her admission. On 11 February, Haddon-Cave J refused these applications and on 25 February, an application for permission to appeal was lodged.
On 1 April 2016, after an interview with the Claimant on 8 March, the SSHD made a “conclusive grounds” decision that she was not, on the balance of probabilities, a victim of trafficking. This determination relied significantly upon the absence of any account of trafficking given by the Claimant in 2008–2010 during her detention and in the first set of judicial review proceedings.
On 28 June 2016, the Claimant issued a fourth claim for judicial review, challenging the lawfulness of the conclusive grounds decision on the ground that the 8 March interview and consequent decision was rendered unfair by a breach of the support duty (the issue that arises in this claim). She successfully applied for an order that that claim be stayed behind this claim. On 13 July, she then filed a claim for damages in the county court for false imprisonment and/or breach of Arts. 4 and/or 5 ECHR. On 9 August, the Claimant was released from immigration detention.
The application for permission to appeal from the order of Haddon-Cave J was refused on paper by Underhill LJ on 30 June 2016, but granted in part by him on oral renewal on 22 September. He also ordered that this hearing would not consider the fourth set of proceedings or the false imprisonment claim, which remain outstanding.
The grounds for which permission was given have evolved as a result of an order made by the Master, but ultimately boil down to the questions set out in paragraph 1 above.
C. RELEVANT LAW AND POLICY
This arises from three sources:
• The Council of Europe Convention on Action Against Trafficking in Human Beings (‘The Convention’)
• Directive 2011/36/EU (‘The Directive’)
• Victims of Modern Slavery: Competent Authority Guidance (‘The Home Office Guidance’)
The parties are agreed that, for reasons explained below, directly enforceable legal obligations can only arise under the Directive and the Guidance.
The Anti-Trafficking Convention
The Anti-Trafficking Convention is the principal international measure designed to combat trafficking in human beings. It is concerned with the immediate treatment of those in respect of whom there are reasonable grounds to believe that they are victims of trafficking. It is also concerned with their medium-term treatment for immigration purposes if it is accepted administratively that they have been trafficked. It is also concerned with the criminalisation of behaviour associated with trafficking and the need to investigate and prosecute offences. See Secretary of State for the Home Department v H [2016] EWCA Civ 565 at [30].
The United Kingdom signed the...
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