Secretary of State for the Home Department v Hoang Anh Minh
| Jurisdiction | England & Wales |
| Judge | Lord Justice Burnett,Mr Justice Cobb,THE PRESIDENT OF THE FAMILY DIVISION |
| Judgment Date | 20 June 2016 |
| Neutral Citation | [2016] EWCA Civ 565 |
| Docket Number | Case No: C4/2015/2583 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 June 2016 |
[2016] EWCA Civ 565
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINSTRATIVE COURT
Helen Mountfield QC, sitting as a Deputy High Court Judge
CO/17706/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE FAMILY DIVISION
Lord Justice Burnett
and
Mr Justice Cobb
Case No: C4/2015/2583
Christopher Staker (instructed by the Government Legal Department) for the Appellant
Martin Westgate QC and Keelin McCarthy (instructed by Lawrence Lupin Solicitors) for the Respondent
Hearing date: 24 May 2016
Approved Judgment
On 20 September 2013 a body within the Home Office known as "the Competent Authority" concluded on behalf of the appellant Secretary of State that the respondent had failed to show that there were reasonable grounds to believe that he was a victim of trafficking. The decision was maintained in two further decision letters during the following three weeks after representations had been made by solicitors acting on behalf of the respondent. The decision was made pursuant to policy guidance ("the Guidance") put in place to satisfy some of the international obligations of the United Kingdom following its becoming a party to the Council of Europe Convention on Action Against Trafficking in Human Beings, CETS No. 197 ("the Anti-Trafficking Convention"). Had the decision been to the opposite effect, the Competent Authority would have gone on to consider whether the respondent was in fact a victim of trafficking with consequences capable of affecting whether he would be able to remain in the United Kingdom, at least in the short term. The respondent challenged the decision in judicial review proceedings. By an order of 18 June 2015 Helen Mountfield QC, sitting as a Deputy High Court Judge, quashed the decision with the consequence that it fell to be remade: [2015] EWHC 1725 (Admin). The judge found that in coming to his decision, the official concerned had failed to apply the Guidance correctly in various respects. The judge also declared that there had been a breach of article 4 of the European Convention on Human Rights ("ECHR"). That provides:
"1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
3 …"
The declaration was made on the basis that the United Kingdom had failed to comply with the procedural obligation implicit in article 4 ECHR to investigate cases of slavery and forced labour. The judge decided that the failure to abide by the Guidance in making the reasonable grounds to believe decision inexorably led to that conclusion.
The Secretary of State does not seek to upset the order of the judge that the decision was flawed as a result of its failure to apply the Guidance. There is a single ground of appeal, namely that the judge erred in concluding that there was a breach of article 4 ECHR and, in particular, that a failure to apply the Guidance could give rise to a breach of article 4.
The matter was remitted to the Competent Authority to remake the decision. The respondent had also made an application for asylum on the basis of his stated fear of what would befall him were he to be returned to Vietnam, of which he is a national. The asylum application was rejected and the respondent was unsuccessful in his appeal to the First-tier Tribunal and then Upper Tribunal long before the judicial review proceedings were heard. We were told that by the time the reasonable grounds to believe decision came to be remade the respondent had disappeared. That became apparent when the Competent Authority tried to contact him and was confirmed by his solicitors who have also lost contact with him.
The Facts
No findings of fact were made in the course of the judicial review proceedings. What follows is a description of the respondent's account, which comprised the information before the Competent Authority at the time that the decision was made. It had been augmented by a report from an expert in migration, Abigail Stepnitz, dated 3 October 2013 which was provided to the Home Office with the correspondence designed to achieve a change of mind following the decision of 20 September 2013.
The respondent is a Vietnamese national born on 19 September 1990. He gave an account of his early life in Vietnam as a trainee Buddhist monk. He suggested that he had encountered problems in Vietnam because of his religious and imputed political beliefs. He was arrested and detained for a few days in May or June 2009. Although he was released, the authorities continued to have an interest in him. Arrest warrants were issued. As a result, the respondent decided to leave Vietnam with the assistance of his spiritual master. In September 2009 he travelled on false documents by air to Russia. On his arrival he was taken by force to a garments factory. He was unable to go to the address he had been given by his spiritual master. He was told that his spiritual master had not paid the full price for the journey and so the respondent was expected to work to pay off the debt. His belongings were confiscated and he was put to work for between 10 and 15 hours a day. There were perhaps 10 or more other workers in the factory. The respondent was fed, clothed and housed at the factory but he was not paid. He was a prisoner. He and the other workers were released unexpectedly in June or August 2013 because the Russian authorities were poised to arrest those running the factory. He was given $2,000 by the owners to get away. There was an arrangement with the factory owners that the respondent and other workers would be fed "and would get some money when we departed". The appellant suspected that they had been given money to disappear before the police arrived.
The respondent believed he had a sister in the United Kingdom and "workmates had told me to go to the UK so I followed them to the UK". After leaving the factory, he and three persons who also wanted to travel to the United Kingdom contributed $1,000 each to someone to take them to London. He travelled first to France on "a fishing boat or lorry ship". The boat was "silver grey" and had some "black and some white fishermen". He remained in France for about a month before getting into a lorry to cross the channel. They boarded the lorry at 02.00 on 2 September 2013, crossed the channel and were picked up by the Police at a petrol station in the United Kingdom later that afternoon. The respondent was arrested but no criminal proceedings followed. We have no information about the fate of the others in the lorry, or its driver. The respondent was detained using immigration powers whilst his asylum application and subsequent appeal were dealt with.
In his account to Ms Stepnitz the respondent confirmed the details of his early life, travel to Russia, his treatment there and the circumstances of his release from the factory with $2,000. He told her that he had been given the names of people he might contact in the United Kingdom, but at that stage he was unwilling to tell her (or the police) who they were. There was no suggestion that he was being delivered to anyone in particular or that he was obliged to make contact with these people. He was frightened because he feared that the names might be people connected with those who had organised his travel from Vietnam to Russia and was conscious that if his asylum appeal failed, he might be returned there swiftly. He was frightened that if he shared the addresses it would be obvious that he had done so, and he might be in danger. Ms Stepnitz gave the respondent the details of the Metropolitan Police team dedicated to investigating trafficking. The respondent's solicitors later made contact with them. We have been told that after his asylum appeal failed the respondent indicated that he would co-operate with the police. Ms Stepnitz's conclusion was that the respondent had been trafficked from Vietnam to Russia and that "given the amount of fear [he] presents regarding the addresses he was given in the UK it is a possibility that he would have faced exploitation in this country as well."
The Anti-Trafficking Convention
The Anti-Trafficking Convention is one of many international measures designed to combat trafficking in human beings. Others have their origins in the United Nations and the European Union and, indeed, the Slavery Convention of 1926 which entered into force in 1955. The Anti-Trafficking Convention is a Council of Europe agreement which most, but not all, of the States Parties to the ECHR have signed and ratified.
The explanatory report accompanying the Anti-Trafficking Convention described trafficking and entrapment of victims as a modern form of slavery, as does the preamble. It was designed to promote the prevention of trafficking, the protection of the human rights of the victims of trafficking and the prosecution of those responsible. Those objectives are enshrined in article 1. Article 4a provides a definition of trafficking as meaning,
"the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs."
Articles 5 and 6 require parties to the Anti-Trafficking Convention to take measures to...
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