R JP v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Murray |
| Judgment Date | 10 December 2019 |
| Neutral Citation | [2019] EWHC 3346 (Admin) |
| Date | 10 December 2019 |
| Docket Number | Case No: CO/4606/2018, CO/4608/2018 |
| Court | Queen's Bench Division (Administrative Court) |
[2019] EWHC 3346 (Admin)
THE HONOURABLE Mr Justice Murray
Case No: CO/4606/2018, CO/4608/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Chris Buttler (instructed by Deighton Pierce Glynn Solicitors) for the Claimants
Ms Joanne Williams (instructed by the Government Legal Department) for the Defendant
Hearing date: 2 May 2019
Approved Judgment
Each of the claimants, JP and BS, is a victim of human trafficking and has also claimed asylum in the United Kingdom. Each claimant seeks to challenge the decision of the defendant, the Secretary of State for the Home Department, not to determine her application for a residence permit under Article 14(1) of the Council of Europe Convention on Action against Trafficking in Human Beings of 16 May 2005 (“ECAT”) before determining her claim for asylum. In the case of JP, the relevant decision is dated 21 September 2018 (“the JP Decision”). In the case of BS, the relevant decision is also dated 21 September 2018 (“the BS Decision”).
Each of JP and BS also seek to challenge the lawfulness of the Secretary of State's policy that, in the case of a victim of trafficking who is also making an application for asylum, the Secretary of State will not determine the victim's application for a residence permit under Article 14(1) of ECAT before making a decision on the asylum application.
Procedural history
JP's claim ( CO/4606/2018) for judicial review of the JP Decision was issued on 19 November 2018. BS's claim ( CO/4608/2018) against the BS Decision was also issued on 19 November 2018. There are some factual differences in the background to each claim, but the claims raise the same issues. The same solicitors, Deighton Pierce Glynn (“DPG”), act for each of JP and BS in these proceedings.
On 29 November 2018 Garnham J granted anonymity to each of JP and BS and ordered that JP's claim and BS's claim should be managed together.
By order dated 16 January 2019 (sealed on 17 January 2019) HHJ Bidder QC, sitting as a Deputy Judge of the High Court, gave BS permission to amend her Statement of Facts and Grounds and the Secretary of State permission to amend her Summary Grounds of Defence in relation to BS's claim.
By order dated 17 January 2019 (sealed on 23 January 2019) HHJ Bidder QC, sitting as a Deputy Judge of the High Court, gave JP permission to amend her Statement of Facts and Grounds and the Secretary of State permission to amend her Summary Grounds of Defence in relation to JP's claim. HHJ Bidder QC also ordered that JP's claim and BS's claim be consolidated.
By order dated 8 March 2019 (sealed on 13 March 2019) (“the Permission Order”), on a review of the papers, Andrew Baker J gave permission for JP and BS to bring their claims for judicial review, for the reasons appended to his order. He also granted expedition of the claims, to be heard as soon as possible after 30 April 2019. At para 4 of his reasons, Andrew Baker J observed that it would be appropriate to hear the claims even if they became academic, because the issue:
“raises an argument of real public importance that does not turn on the detailed facts and substantial numbers of other potential claimants are or are likely to be affected. Moreover, that challenge relates to a recent change of policy and there is a strong public interest in the lawfulness of the new policy (since open to doubt) being authoritatively considered, if possible, before it becomes too well embedded.”
The Secretary of State's applications for adjournment of the hearing
Shortly before the hearing, the Secretary of State made an application, supported by detailed written submissions, for (i) a stay of these proceedings behind proceedings relating to the claimants in two other judicial review cases that were being heard together, R (NN) v SSHD (CO/1040/2019) and R (LP) v SSHD (CO/1039/2019) or (ii) in the alternative, for an order adjourning the hearing of this case, which was then due to be heard on either 2 or 3 May 2019 (and was heard on 2 May 2019), on the basis that the consolidated case of NN & LP should proceed as the lead case for various reasons.
The claimants, JP and BS, opposed the Secretary of State's stay application. I dealt with it on the papers, refusing it by order dated 26 April 2019. Broadly, I accepted the position of JP and BS that their claims were sufficiently different from those of NN and LP so as to justify proceeding with their claims at the hearing then listed for 2/3 May 2019. The Secretary of State renewed her stay application, with further detailed written submissions, which was again opposed by JP and BS. By order dated 30 April 2019 I refused the renewed application, and the hearing proceeded on 2 May 2019.
After the hearing on 2 May 2019
After the hearing on 2 May 2019, I was notified that the Secretary of State had agreed to reconsider the applications made by each of JP and BS for a residence permit under Article 14(1) of ECAT, having refused each application shortly before the hearing by letters dated 23 April 2019. I will revert to the impact of this on the claims later in this judgment.
The obligations of the UK in relation to trafficking victims
The United Kingdom is a party to ECAT, having ratified it on 17 December 2008. As a treaty, it does not have direct effect, and it has never been incorporated into the law of any part of the UK, including England and Wales. It has, however, been implemented administratively in the UK by the National Referral Mechanism (“NRM”), a process for identifying and supporting victims of trafficking created in 2009 in light of the UK's obligations under ECAT.
The issue of whether ECAT is justiciable arose in the case of R (PK (Ghana)) v SSHD [2018] EWCA Civ 98. In that case at [34] Hickinbottom LJ noted that it had been common ground before Picken J in the court below that a failure to give effect to ECAT would be a justiciable error of law. Before the Court of Appeal in that case, counsel for the Secretary of State confirmed that concession. In her Detailed Grounds of Defence for each claim in this case, the Secretary of State stated that “the published policies came into being to give effect to [Articles 10, 12 and 14] of ECAT”, which the claimants say is consistent with the Secretary of State's concession on justiciability of ECAT in PK (Ghana). The Secretary of State's position in this case is that she is constrained to follow this concession, but she reserves her position for the future. In any event, she maintains that her published policies are consistent with the United Kingdom's obligations under ECAT and that they give proper effect to those obligations.
Articles 10(1) and 10(2) of ECAT provide as follows:
“1. Each Party shall provide its competent authorities with persons who are trained and qualified in preventing and combating trafficking in human beings, in identifying and helping victims, including children, and shall ensure that the different authorities collaborate with each other as well as with relevant support organisations, so that victims can be identified in a procedure duly taking into account the special situation of women and child victims and, in appropriate cases, issued with residence permits under the conditions provided for in Article 14 of the present Convention.
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 and shall likewise ensure that that person receives the assistance provided for in Article 12, paragraphs 1 and 2.”
Articles 10(1) and 10(2) of ECAT require each state that is a party to ECAT to have an appropriate legislative and administrative framework, as well as a procedure and relevant resources, for identifying potential and actual victims of trafficking and, where appropriate issuing victims with residence permits under Article 14(1) of ECAT. Article 10(2) also requires a member state to ensure that, until a conclusive determination has been made whether a potential victim is an actual victim of trafficking, the potential victim is:
i) protected from removal from the state; and
ii) entitled to receive the assistance provided for in Articles 12(1) and 12(2) of ECAT (discussed further below).
Articles 14(1) and 14(5) of ECAT provide as follows:
“1. Each Party shall issue a renewable residence permit to victims, in one or other of the two following situations or both:
(a) the competent authority considers that their stay is necessary owing to their personal situation;
(b) the competent authority considers that their stay is necessary for the purpose of their co-operation with the competent authorities in investigation or criminal proceedings.
…
5. Having regard to the obligations of the Parties to which Article 40 [Relationship with other international instruments] of this Convention refers, each party shall ensure that granting of a permit according to this provision shall be without prejudice to the right to seek and enjoy asylum.”
In the UK, a “renewable residence permit”, as referred to in Article 14(1) of ECAT would be in the form of discretionary leave to remain (“DLR”) granted to...
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