R K v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr. Justice Picken |
| Judgment Date | 21 December 2015 |
| Neutral Citation | [2015] EWHC 3668 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 December 2015 |
| Docket Number | Case No: CO/16707/2013 |
[2015] EWHC 3668 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr. Justice Picken
Case No: CO/16707/2013
Catherine Meredith (instructed by Wilson Solicitors LLP) for the Claimant
Kerry Bretherton (instructed by The Government Legal Department) for the Defendant
Hearing dates: 1 and 2 December 2015
Introduction
The Claimant ('K') is a 35-year old man who was born in Ghana. He entered the United Kingdom on 4 September 2003. He has lived here ever since. It is common ground that he was a victim of trafficking. He challenges the refusal by the Defendant, in a decision letter dated 16 January 2015 made under the National Referral Mechanism for the identification of victims of trafficking (the 'NRM'), to grant him a residence permit, and so discretionary leave to remain under Article 14 of the Council of Europe Convention on Action against Trafficking in Human Beings 2005 (CETS No 197) (the 'Trafficking Convention'), rather than under the Immigration Rules which are not concerned with the grant of leave to remain to victims of trafficking.
As will appear, the decision made on 16 January 2015 was a 'fresh' decision made after permission to bring these judicial review proceedings had been given by Lord Carlile of Berriew CBE QC (sitting as a Deputy High Court Judge) on 1 April 2014 in relation to an earlier decision made by the Defendant on 10 October 2013. K's case, in summary and as set out in the Amended Grounds for Judicial Review prepared by reference to the letter dated 16 January 2015, is that the Defendant's refusal to grant him a residence permit is unlawful in that it: (i) failed to apply/misapplied her own published trafficking guidance without good reason in the assessment of whether the Claimant qualified for a residence permit, failing in particular to take into account material considerations (Ground (1)); (ii) applied an unlawful policy governing the eligibility conditions for a residence permit (Ground (2)); (iii) was in breach of Article 4 of the European Convention on Human Rights as a result of a failure to exercise 'anxious scrutiny' of K's eligibility for a residence permit (Ground (3)); and (iv) failed to consider at all, or acknowledge, the principle that the Defendant is required to correct an historic injustice to a victim of trafficking (Ground (4)). As will appear, the nature of the Grounds has undergone, in places, something of a change from how they were presented in the Amended Grounds for Judicial Review.
The Defendant disputes each of these grounds. She maintains that the decision made on 16 January 2015 was a decision which was lawful. Miss Kerry Bretherton, counsel for the Defendant, noted in her skeleton argument, in particular, that Grounds (3) and (4) were not mentioned in the skeleton argument submitted by Miss Catherine Meredith, counsel for K. Miss Meredith subsequently, however, made it clear, in a document submitted in reply to Miss Bretherton's skeleton argument, that Ground (3) is pursued. It was confirmed by Miss Meredith, both in the reply document and in her oral submissions, that, consistent with how the point was put in the Amended Grounds for Judicial Review, the challenge is as to the decision made on 16 January 2015. However, despite the Amended Grounds stating very specifically in paragraph 141 (as to Ground (3)) that the alleged failure to exercise 'anxious scrutiny' by the decision-maker was a failure as to matters set out in paragraph 125 (matters which did not include a Police investigation, which was addressed in paragraph 126 and following), Miss Meredith explained that Ground (3) had as its exclusive focus the issue of co-operation with the Police and how that issue was addressed by the decision-maker when the decision was made. She confirmed also during her oral submissions that, despite reference in her skeleton argument to "a failure to discharge the Defendant's positive obligations by way of a referral to and cooperation with the police" being one of the grounds asserted in these proceedings, no freestanding failure by the Defendant to make a referral to the Police had been asserted in the Amended Grounds and, as such, this broader type of allegation was not pressed before me — at least, as I shall later explain, as regards matters which have happened after the decision in K's case was made on 16 January 2015. As I shall explain shortly, this has an impact on the admissibility of certain material post-dating the decision made on 16 January 2015 on which, at least in her skeleton argument, Miss Meredith sought to rely.
As to Ground (4), Miss Meredith explained in her skeleton argument, in a footnote, that this aspect, which is based on EK (Tanzania) [2013] UKUT 313, was not pursued as part of the present proceedings since it is recognised by K and his legal team that leave to remain on the basis of correcting an historic injustice is a separate issue to be determined most appropriately through an application under the Immigration Rules rather than in the present context. However, somewhat surprisingly, during the course of Miss Bretherton's submissions, Miss Meredith interjected to say that Ground (4) was pursued. Subsequently, after this judgment was sent to the parties in draft, Miss Meredith explained that Ground (4) was not, after all, intended to be resurrected and apologised for the confusion. In the circumstances, whilst I had thought that I need say no more about Ground (4) and instead focus exclusively on Grounds (1), (2) and (3), and indeed that would ultimately seem to be the case, nevertheless, if only for completeness, I propose to address Ground (4) also.
Background facts
The background facts are largely uncontroversial. It was acknowledged by Miss Bretherton that, in the circumstances, I could take them from Miss Meredith's helpful summary in her skeleton argument, and this is what I do in what follows, albeit that I have made modifications to Miss Meredith's summary where appropriate, my having myself read the underlying material (including K's most recent witness statement dated 11 November 2015 and so not available to the Defendant when making the decision on 16 January 2015, a matter to which I shall return) in order to satisfy myself that what is contained in that summary is accurate.
Ghana
K was born in Ghana on 3 February 1978. His mother died when he was aged 3. He was subsequently sold by his father's family to a couple in the north of the country whom he called his 'aunty' and 'uncle'. He attended school from the age of about five. He stopped going to school, however, when fees ceased to be paid, instead working for his 'aunty' and 'uncle' on the streets, selling various things as well as working without pay on cocoa plantations and fishing. He was regularly beaten using electrical cables, canes and palm branches. He also suffered sexual abuse from his 'aunty'. He tried to run away on a number of occasions, and in addition witnessed a fellow child labourer being beaten to death by tree branches.
K managed to escape, with somebody else who worked on the plantation, and went to live with somebody called Afia for a few months. In this period K was subjected to threats and rituals known as "juju" which instil extreme fear into victims to prevent them from speaking of their abuse and as a means of maintaining control. It was in this period also that somebody else called Tony introduced K to a person called Mr Boat who arranged a passport and visa for travel to this country.
Arrival in the United Kingdom
As I have mentioned, K entered the United Kingdom on 4 September 2003. On arrival he was taken to a house in Luton, where he was subjected to forced labour and mental and verbal abuse. This lasted for three years, during which he was unable to escape and his passport was kept from him. He was locked in a house and taken to work in warehouses to sort through and clean products such as clothing, shoes and electrical equipment. He received payment only occasionally, adding up to about £40 a month. He worked from 4 am until about 8 or 9 pm, receiving only limited amounts of food.
K eventually escaped with the aid of a Ghanaian truck driver called Ben, who collected goods from one of the warehouses where K worked. Ben helped K to obtain his passport and took him to a house in Milton Keynes. There he was made to work as a male escort, on one occasion being anally raped. After about 6 months, he escaped and went to work in London as a cleaner, where he entered into a relationship with a woman with whom he had a son. This was in 2007.
Immigration applications
The same year, on 7 June 2007 to be precise, K applied for an EEA Registration Certificate in conjunction with somebody whom he claimed was his uncle and two people said to be his cousins. This was on the expiry of his leave to remain as a student on 31 May 2007, K's initial entry to this country having been as a student. Further immigration applications were, however, refused. K was served with papers stating that he had overstayed his visa and his subsequent challenges to this were unsuccessful. In October 2010, having a year before been arrested as an overstayer and made the subject of reporting restrictions, K was convicted of knowingly possessing an improperly obtained (and another's) identification documents with intent. He was sentenced to 15 months' imprisonment.
K then made several applications...
To continue reading
Request your trial
-
The Queen (on the application of KTT) v Secretary of State for the Home Department
...leave policy, which also applied a compelling personal circumstances approach was embedded. At first instance (before Picken J [2016] 4 WLR 25) it was common ground that the Guidance: “was intended to, and purported to, give effect to [ECAT]; and that, if it failed to give effect to [ECAT]......
-
PK (Ghana) v The Secretary of State for the Home Department
...OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)) THE HON MR JUSTICE PICKEN [2015] EWHC 3668 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL Lord Justice Patten Lord Justice Hickinbottom and Lord Justice Singh Case No: C4/2016/0......
-
R Ermira Kurtulaj v Secretary of State for the Home Department
...considers a decision refusing to hold that a person has been trafficked (see R (K) v Secretary of State for the Home Department [2015] EWHC 3668 (Admin) at para.74 and 20 As Mr Darryl Allen QC, sitting as a Deputy High Court Judge, observed in NS, R (on the application of) v Secretary of S......