R (on the Application of BT) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Anne Whyte |
| Judgment Date | 23 March 2018 |
| Neutral Citation | [2018] EWHC 584 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 March 2018 |
| Docket Number | Case No: CO/313/2018 |
[2018] EWHC 584 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Anne Whyte QC SITTING AS A DEPUTY HIGH COURT JUDGE
Case No: CO/313/2018
Emma Fitzsimons (instructed by Duncan Lewis) for the Claimant
Emily Wilsdon (instructed by GLD) for the Defendant
Hearing dates: 14 March 2018
Judgment Approved
Anne Whyte QC:
The claimant has the benefit of anonymity and will be referred to throughout these proceedings as “BT”.
On 22 January 2018 the claimant filed applications for interim relief (release from detention) and permission to apply for judicial review. On 23 January 2018 Lang J ordered that the claimant's applications be listed for an oral hearing. Other case management directions were made. The claimant was given leave to file and serve an application to amend his grounds upon receipt of disclosure from the defendant. This hearing has therefore been listed to determine the application for permission and interim relief and an application by the claimant to adduce further evidence.
The Court was notified on 13 March 2018 that the defendant (“SSHD”) intended to release the claimant to a Salvation Army address on 14 March. That being so, the application for interim relief is no longer pursued.
BT is Vietnamese. He entered the UK illegally, possibly in 2014. He was detained under immigration powers on 5 May 2017 following completion of a 3-year custodial sentence imposed on 22 April 2016 for cannabis (a class B controlled drug) production. The defendant accepted that the claimant is a victim of human trafficking. The defendant made a positive Reasonable Grounds decision on 17 August 2016 and a positive Conclusive Grounds decision on 3 October 2016. These decisions were made whilst the claimant was serving his sentence of imprisonment. The Conclusive Grounds decision accepted that he had been the subject of trafficking in Russia and had been trafficked to the UK but in light of the crown court judge's sentencing remarks and inconsistent accounts declined to conclude that he had been forced into criminality in the UK. He did not challenge that decision.
He claimed asylum in May 2016 and this was refused in May 2017. This claim and his human rights claim were certified under sections 94 and 94B of Nationality, Immigration and Asylum Act 2002. That decision was swiftly reviewed in the light of the Supreme Court ruling in Kiarie & Byndloss v SSHD [2017] UKSC 42 though maintained with the distinction that it was acknowledged that he now had an in country right of appeal.
He has been recognised as a victim of torture, the defendant regarding him on 9 October 2017 as an Adult at Risk at level 2 after a Rule 35 Report referred, for the first time, to injuries sustained at the hands of his traffickers in Russia. The claimant has some underlying health issues. He is epileptic and has had seizures whilst in detention. A report prepared for the purpose of his asylum claim by a psychotherapist called Susan Pagella and dated 25 October 2017 concluded that he was suffering from PTSD and that detention in criminal custody and at the immigration detention centre in question was significantly detrimental to his health. His asylum claim has proceeded through the usual channels. Having been refused asylum, as described above, he lodged an appeal with the First Tier Tribunal (“FTT”) in late July 2017. It was anticipated that this claim would be expedited and resolved within 4 months. There were a couple of adjournments of hearings but ultimately on 29 November his appeal was dismissed. Within a couple of weeks he had been granted leave to appeal and on or about 30 January 2018 his appeal was successful and his case remitted to the FTT.
His detention was subject to regular reviews. The progress and anticipated timetable of the asylum claim and appeal were noted during the reviews. During each review an assessment was made of the risk of absconding and re-offending and risk of harm to the public, if released. During the reviews each of these risks was assessed as “high”, it being noted that BT had no ties in the UK, was liable to deportation, had no legal basis for remaining, no financial self-sufficiency and that the nature of his conviction meant that he posed a risk of harm to the public. No serious health concerns were identified. The defendant's decision to release the claimant now is said to have been occasioned by a change in circumstances namely the recent remission of his asylum appeal to the FTT with no hearing date in sight and the issue of these proceedings, the combined effect of which suggests that his removal cannot be effected now within a reasonable period of time.
The claimant submits in his original Grounds that his detention is unlawful relying on various grounds. The timing of his claim was triggered by the fact that the Upper Tribunal granted him leave to appeal the decision of the FTT. In Amended Grounds dated 22 February 2018 he also seeks to challenge (a) the failure to investigate his trafficking claim, in breach of article 4 of the Council of Europe Convention Against Trafficking in Human Beings 2005 and (b) the failure to grant him discretionary leave as a victim of trafficking. The defendant submits that these additional two grounds are free standing of the general complaints about unlawful detention and are inexcusably out of time. Although the application for permission is split into eight separate grounds, six relate to a claim that the detention was unlawful. In summary, it is said that the detention was unlawful on a rolling basis as follows:
i) from the start, on the basis that the claimant ought to have been released as a victim of trafficking who did not pose any threat to public order, alternatively
ii) that by late July when his appeal to the FTT was lodged it should have been apparent on Hardial Singh grounds that his removal could not be effected within a reasonable time, alternatively
iii) By late October the defendant should have been aware from the Pagella report that detention was positively harmful to the claimant and this ought to have occasioned his release.
Application to rely upon further evidence dated 2 March 2018
The claimant has issued an application seeking permission to rely upon a bundle of supplementary documents including amended grounds for judicial review. The defendant neither consents to nor opposes the application but points out that the delay, in her view, is not obviously justified and that if admitted, the court should consider with care what weight to attach to the additional documentation. Having considered the additional documents, I do not consider that the defendant is prejudiced by their admission although I agree that some could have been filed sooner. In those circumstances, I accede to the application.
Relevant Law and Policy
Permission will be granted only where the court is satisfied that there is an arguable ground for judicial review which merits full investigation at a full hearing ie a ground which could succeed.
BT's sentence of imprisonment was in excess of 12 months. That being so, section 32 of the UK Borders Act 2007 requires the defendant to deport him unless any of the exceptions in section 33 apply. Section 36 confers on SSHD a power to detain such a person. That power to detain will be subject to the Hardial Singh principles.
The defendant's published policy Victims of Modern Slavery – Competent Authority Guidance relevantly reads at p57 [my emphasis]:
“ Action 7: consider whether a potential victim can be released from detention
If the potential victim of trafficking or modern slavery is in immigration detention they will normally need to be released on TA or TR by the Home Office unless in the particular circumstances, their detention can be justified on grounds of public order.
The decision letter advises the person that they have been granted 45 days for recovery and reflection on TA or TR to remain in the UK whilst a conclusive grounds decision is made on their case. This does not grant any leave to enter or remain.
Therefore a detained person is usually released from immigration detention if they receive a positive reasonable grounds decision and where they are released, the Competent Authority which dealt with persons case whilst detained must pass the case on to a non-detained Competent Authority (UKVI) at this point for the conclusive grounds decision to be made unless there are exceptional reasons why this is not possible.”
In Rantsev v Cyprus (2010) 51 EHCR, the Court held that Article 4 of the Council of Europe Convention Against Trafficking in Human Beings 2005 imposed obligations on states including “a procedural obligation to investigate situations of potential trafficking…for an investigation to be effective, it must be capable of leading to the identification and punishment of individuals responsible”.
The Immigration Act 2016: Guidance on Adults at Risk in Immigration Detention advocates a “case-by-case evidence-based assessment of the appropriateness of detention of an individual considered to be at particular risk of harm”. Available evidence graded is into levels (1, 2 or 3). For these purposes, two levels are relevant:
“Level 2 evidence is: professional evidence (e.g. from a social worker, medical practitioner or NGO), or official documentary evidence, which indicates that the individual is an adult at risk-should be afforded greater weight. Individuals in these circumstances will be regarded as being at evidence level 2
Level 3 evidence is: professional evidence (e.g. from a social worker, medical practitioner or NGO) stating that the individual is at risk and that a period of...
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