R XYL v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Deputy High Court Judge Jonathan Swift |
| Judgment Date | 11 April 2017 |
| Neutral Citation | [2017] EWHC 773 (Admin) |
| Docket Number | Case No: CO/4692/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 April 2017 |
[2017] EWHC 773 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Deputy High Court Judge Jonathan Swift QC
Case No: CO/4692/2016
Shu Shin Luh (instructed by WILSON SOLICITORS) for the CLAIMANT
Bilal Rawat (instructed by GOVERNMENT LEGAL DEPARTMENT) for the DEFENDANT
Hearing dates: 8 February 2017
Approved Judgment
Deputy High Court Judge Jonathan Swift QC:
The Claimant claims that she was unlawfully detained between 31 August 2016 and 15 September 2016.
A. Facts and context
The Claimant is a Chinese national. On 12 August 2016 she was arrested by Immigration Officers while she was working at a massage parlour in Salford. On the same day a Removal Decision was made and served on the Claimant informing her that she would be removed from the United Kingdom on or after 17 August 2016. That decision recorded that the Claimant had entered the United Kingdom at some point between 26 March 2015 and 29 September 2015 on a visitor's visa, that had been valid for 6 months; that she had overstayed since the expiry of that visa; and that she was unlawfully in the United Kingdom. On 13 August 2016 the Claimant was detained under Immigration Act 1971 powers, pending her removal from the United Kingdom.
On 19 August 2016 the Claimant stated that she could not return to China, as she feared she would be harmed by her husband, and that she had no sources of help or support in China. On 22 August 2016 the Claimant stated that she wished to claim asylum. An asylum screening interview took place on 30 August 2016. At this interview the Claimant said that she had left China because she had been beaten by her husband. She had then paid an agent to help her leave China who had told her to travel to the United Kingdom on the pretence that she was a visitor. The Claimant stated that her passport had been taken by people who met her on her arrival to the United Kingdom; and that those people had then taken her to a massage parlour in Euston and forced her to work as a prostitute for two months. It was apparent from this, and from some other information given by the Claimant at the asylum screening interview that the Claimant might have been a victim of trafficking. A further interview took place (also on 30 August 2016) and at this time the Claimant was asked to provide further information about how she had come to be in the United Kingdom and what had happened to her on and after arrival. The Claimant stated that on arrival she had been met by a man and a woman, taken to a massage parlour in Euston, and locked in a room. She was imprisoned and forced to work as a prostitute; she was beaten. The Claimant said that in June 2015, after about 2 months at the massage parlour, she escaped. After then she had no contact either with anyone who worked at the massage parlour, or with the agent who had arranged for her to travel to the United Kingdom.
Following the two interviews (and also on 30 August 2016) a National Referral Mechanism ("NRM") form was completed in respect of the Claimant, seeking a reasonable grounds determination as to whether the Claimant had been a victim of trafficking. The referral was made by the Immigration Officer (Ms. Tyacke) who had conducted the second interview on 30 August 2016. It appears that the NRM form was sent to and received by the Competent Authority on 31 August 2016. The referral concerned the events that had taken place immediately before and immediately following the Claimant's arrival in the United Kingdom; it did not concern any events after her escape from the Euston massage parlour in June 2015 (and for the avoidance of doubt it did not relate to the Claimants' work at the massage parlour in Salford, immediately prior to her arrest in August 2016).
The National Referral Mechanism is part of the arrangements made by HM Government to meet the United Kingdom's obligations under the Council of Europe Convention on Action against Trafficking in Human Beings ("the Anti-Trafficking Convention"). Article 10 of the Anti-Trafficking Convention requires the State parties to make suitable arrangements to identify persons who are victims of trafficking. The Anti-Trafficking Convention provides that "competent authorities" within each State party will have responsibility for this task. The Explanatory Report to the Convention states that the competent authorities will be those public authorities who may have contact with trafficking victims. The Anti-Trafficking Convention also provides for specified forms of assistance to be provided to two classes of person: first to persons who are or have been victims of trafficking; and second to persons who, on reasonable grounds, are believed to be victims of trafficking. The Competent Authority Guidance published by the Home Office on 21 March 2016 describes the NRM as a victim identification and support process. This guidance identifies a number of competent authorities within the Home Office, one of which is the Detained Asylum Casework Team. The Competent Authority Guidance also refers to "first responders"; these are specified statutory authorities and non-governmental organisations who have responsibility for identifying potential victims of trafficking. The Home Office is one of these first responders, and this obviously includes Immigration Officers working within detention centres. The Competent Authority Guidance states that the NRM mechanism is to be used in any case in which the relevant first responder "… suspects a person is a potential victim …" of trafficking. Such persons are identified by reference to a range of indicators set out in separate guidance also published by the Home Office in March 2016 – "Victims of Modern Slavery – Frontline Staff Guidance" ("the Frontline Staff Guidance").
In cases where any of the indicators are present there is an expectation that a referral will be made using the NRM form. On receipt of a referral, the Competent Authority must make a reasonable grounds decision – i.e. decide whether there are reasonable grounds to believe that the person is a victim of trafficking. The reasonable grounds stage is an initial filter to identify victims of trafficking. Where a positive reasonable grounds decision is taken, the Competent Authority then goes on to decide whether the person is in fact a victim of trafficking (the so-called "Conclusive Grounds decision"). The Competent Authority Guidance states that the "… expectation is that the Competent Authority will make a reasonable grounds decision within 5 working days of the NRM referral being received …"; the Guidance then goes on to say "Reasonable grounds decisions for cases in immigration detention will be considered as soon as possible". For present purposes it is important to note that where a positive reasonable grounds decision is made in respect of a person in immigration detention, the ordinary consequence will be that the person is released from immigration detention. This is stated both in the Secretary of State's Guidance to Immigration Officers (see Enforcement Instructions and Guidance, Chapter 9 at §9.9); and in the Competent Authority Guidance. The former states as follows (so far as is material for present purposes):
"Competent Authorities will aim to complete an assessment of whether there are 'reasonable grounds to believe' someone is a victim [of trafficking] within 5 days of referral. A positive decision with trigger a 45 day 'recovery and reflection' period during which time individuals will not be detained (unless their detention can be justified on grounds of public order) and removal action will be suspended. …"
Although the Claimant's case was referred to the relevant Competent Authority (within the Detained Asylum Casework Team) on 31 August 2016, the reasonable grounds decision was not taken until 15 September 2016. The decision taken then (set out in a letter to the Claimant dated 15 September 2016), was a positive reasonable grounds decision. Arrangements for the Claimant's release from detention were put in place on the same day, and she was released.
Part of the documentary evidence for this hearing is the product of a subject access request made by the Claimant under section 7 of the Data Protection Act 1998, directed to the Home Office. The consequence of this is a large amount of documentation relating to the Claimant's arrest, detention and release, including not only the GCID case record sheets, and detention review documentation ordinarily available for claims of unlawful detention, but also various internal emails. All this runs to the better part of 400 pages; but as is to be expected, there are gaps in the paper trail. This is problematic, in particular because the Secretary of State has not provided any witness evidence to give an overall narrative of how the Claimant's case was handled between 31 August and 15 September 2016, and in particular, the steps taken in respect of the reasonable grounds decision from the time the NRM form was provided to the part of the Detained Asylum Casework team that acts as the relevant Competent Authority.
Doing the best that I can, the position seems to have been as follows. The NRM form was sent on 31 August 2016. Attached to that form was the record of the second interview which had been conducted with the Claimant and which concerned matters relevant to whether or not she had been trafficked. The record provided a fair amount of detail on what the Claimant said had happened to her on arrival in the United Kingdom and in the two months following.
Also on 31 August 2016 the Claimant's asylum claim was accepted into the Detained Asylum Casework system. The NRM form was received by a...
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