The Queen (on the application of (1) O and (2) H) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Garnham |
| Judgment Date | 31 January 2019 |
| Neutral Citation | [2019] EWHC 148 (Admin) |
| Docket Number | Case No: CO/2251/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 January 2019 |
[2019] EWHC 148 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Bristol Civil Justice and Family Centre
Bristol, BS1 6NP
Mr Justice Garnham
Case No: CO/2251/2018
Natalie Lieven QC, Shu Shin Luh and Gemma Loughran (instructed by Deighton Pierce Glynn Solicitors) for the Claimants
Lisa Giovannetti QC, Gwion Lewis (instructed by Government Legal Department) for the Defendant
Hearing dates: 22 & 23 November 2018
Approved Judgment
Introduction
The principal issue raised by this case is as follows: have delays by the Home Office in the process of making “Conclusive Grounds” decisions in respect of potential victims of human trafficking become so significant and so widespread as to be unlawful?
“Conclusive Grounds” decisions are made by “Competent Authorities” under an arrangement established by the Secretary of State for the Home Department (“the Secretary of State”), for the purpose of identifying victims of trafficking and modern slavery, an arrangement called “The National Referral Mechanism” (“NRM”). There are two competent authorities, the UK Human Trafficking Centre, operated by the National Crime Agency, and the Home Office. This claim relates only to the systems operated by the Home Office
There was a delay of 34 months between the date when Ms O, the First Claimant, received what is called a positive “Reasonable Grounds” decision, in August 2015, and the date in June 2018 when she received a negative Conclusive Grounds decision. There was a delay of more than 19 months between the positive Reasonable Grounds decision and the negative Conclusive Grounds decision in the case of Ms H, the Second Claimant. A third claimant, P waited 19 months between the two decisions. She thereafter discontinued her claim.
The two Claimants allege unlawful delay in their own cases. But they also allege that their cases are illustrative of a much wider and more profound deficiency in the NRM arrangements operated by the Home Office. They point to what they describe as sustained criticism of the arrangements contained in reports by Mr Jeremy Oppenheim for the Home Office in 2014 and by the National Audit Office in 2017, and in witness statements from a number of solicitors with experience of representing potential victims of trafficking.
The Secretary of State resists this claim. He argues that there is no duty to make a Conclusive Grounds decision within a particular period. He says that whilst particular individuals have been waiting regrettably long periods for a Conclusive Grounds decision to be made in their case, the evidence does not support the claim that “delays are systematically egregious”. He disputes the suggestion that the delays in the two Claimants' cases were unreasonably long and points out that ultimately conclusive grounds were not established in their cases.
Before considering the criticisms advanced by the Claimants, it is necessary to identify first the relevant international instruments, second the domestic policies and guidance, third the relevant parts of the Claimants' own history and fourth the history and reviews of the NRM.
The International Instruments
There are three relevant international instruments.
First, the Council of Europe Convention on Action against Trafficking in Human Beings (or “ECAT”), which came into force in February 2008. The relevant articles are as follows:
“Article 1 — The purposes of this Convention
1. The purposes of this Convention (include) “(b) to protect the human rights of the victims of trafficking…
Article 10 – Identification of the victims
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.
Article 12 – Assistance to victims
1 Each Party shall adopt such legislative or other measures as may be necessary to assist victims in their physical, psychological and social recovery. Such assistance shall include at least:
(a) standards of living capable of ensuring their subsistence, through such measures as: appropriate and secure accommodation, psychological and material assistance;
(b) access to emergency medical treatment;
(c) translation and interpretation services, when appropriate;
(d) counselling and information, in particular as regards their legal rights and the services available to them, in a language that they can understand;
(e) assistance to enable their rights and interests to be presented and considered at appropriate stages of criminal proceedings against offenders;
(f) access to education for children…
7 For the implementation of the provisions set out in this article, each Party shall ensure that services are provided on a consensual and informed basis, taking due account of the special needs of persons in a vulnerable position and the rights of children in terms of accommodation, education and appropriate health care.
Article 13 – Recovery and reflection period
1 Each Party shall provide in its internal law a recovery and reflection period of at least 30 days, when there are reasonable grounds to believe that the person concerned is a victim. Such a period shall be sufficient for the person concerned to recover and escape the influence of traffickers and/or to take an informed decision on cooperating with the competent authorities. During this period it shall not be possible to enforce any expulsion order against him or her…
2 During this period, the persons referred to in paragraph 1 of this Article shall be entitled to the measures contained in Article 12, paragraphs 1 and 2…
Article 14 – Residence permit
1 Each Party shall issue a renewable residence permit to victims, in one or other of the two following situations or in 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 cooperation with the competent authorities in investigation or criminal proceedings…
Article 15 – Compensation and legal redress
1 Each Party shall ensure that victims have access, as from their first contact with the competent authorities, to information on relevant judicial and administrative proceedings in a language which they can understand.
2 Each Party shall provide, in its internal law, for the right to legal assistance and to free legal aid for victims under the conditions provided by its internal law.
3 Each Party shall provide, in its internal law, for the right of victims to compensation from the perpetrators.
4 Each Party shall adopt such legislative or other measures as may be necessary to guarantee compensation for victims in accordance with the conditions under its internal law, for instance through the establishment of a fund for victim compensation or measures or programmes aimed at social assistance and social integration of victims, which could be funded by the assets resulting from the application of measures provided in Article 23.
Article 16 – Repatriation and return of victims
1 The Party of which a victim is a national or in which that person had the right of permanent residence at the time of entry into the territory of the receiving Party shall, with due regard for his or her rights, safety and dignity, facilitate and accept, his or her return without undue or unreasonable delay.
2 When a Party returns a victim to another State, such return shall be with due regard for the rights, safety and dignity of that person and for the status of any legal proceedings related to the fact that the person is a victim, and shall preferably be voluntary…
Article 18 – Criminalisation of trafficking in human beings
Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct contained in article 4 of this Convention, when committed intentionally…
Article 26 – Non-punishment provision
Each Party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so.”
Second, the 2011 EU Anti-Trafficking Directive (2011/36/EU), the recitals to which include the following:
“(7) This Directive adopts an integrated, holistic, and human rights approach to the fight against trafficking in human beings and when implementing it, Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an...
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