The Queen (on the application of ZV) v Secretary of State for The Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Garnham |
| Judgment Date | 18 October 2018 |
| Neutral Citation | [2018] EWHC 2725 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5021/2017 |
| Date | 18 October 2018 |
[2018] EWHC 2725 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
33 Bull Street, Birmingham, B4 6DS
Mr Justice Garnham
Case No: CO/5021/2017
Ms Samantha Knights QC & Zoe McCallum (instructed by Duncan Lewis) for the Claimant
Mr Tom Brown (instructed by Government Legal Department) for the Defendant
Hearing dates: 2nd & 3rd July 2018
Introduction
ZV, a national of Lithuania, alleges that in 2009 she was “trafficked” into the UK by an abusive partner. She says she was beaten, forcibly injected with heroin and forced into prostitution for some eight years. She says, that during the period in which she was controlled by her trafficker, she committed a “string of petty shoplifting offences at his direction” for which she received convictions.
The man whom the Claimant says trafficked her was deported to Lithuania in early 2017. On 20 June 2017, the Claimant was served with a Notice of Liability to Deportation by the Secretary of State for the Home Department (“the Secretary of State”), on the basis that she was a persistent offender. On 23 June 2017, she was taken into immigration detention.
By these judicial review proceedings, ZV challenges her treatment by the Secretary of State. In particular, she challenges his decision to deport her and to declare inadmissible her asylum claim. She further alleges that her detention between 24 June 2017 and 30 October 2017 was unlawful, that the Secretary of State failed to discharge his obligations to her under the EU Trafficking Directive and that he committed breaches of his policy in relation to potential victims of torture. The Defendant resists all these claims.
I heard argument in this case on 2 & 3 July 2018 from Ms Samantha Knights QC and Zoe McCallum on behalf of the Claimant and from Mr Tom Brown for the Defendant. On the evening of the first day of the hearing in this case, the Claimant received notification from the “Competent Authority”, a department of the Home Office, that they had concluded that she was indeed a victim of trafficking. I gave the Secretary of State time to consider the consequences of that decision and the parties, the opportunity to make written submissions in response to any decisions the Secretary of State might make in the light of that decision.
On 10 October, as I was completing the drafting of this judgment, Mr Brown sent me a note about the decision of Nicol J in H v SSHD [2018] EWHC 2191 (Admin) a case in which Ms Knights had represented the Claimant and in which judgment was handed down in August 2018. I allowed both parties to make additional submissions on the significance of that decision for this case.
I am grateful to counsel for their clear and helpful submissions, both orally at the hearing and subsequently in writing.
The History
I set out here the essential outline chronology of events relevant to this case. I will return to particular aspects of the chronology in more detail at the appropriate points during the course of this judgment.
The Claimant was born on 8 July 1984. Her parents divorced when she was four and between the ages of 18 and 21 she suffered multiple bereavements including the loss of her mother in 2006. Shortly after her mother's death, she began a relationship with a man I shall call DE. In 2008, her stepfather died.
The Claimant says that as her relationship with DE progressed, he became physically abusive and demanded money from her. She says that in November 2009, he drugged her and brought her to the UK. On arrival, DE kept the Claimant locked in a house and demanded that she work for him as a prostitute. When she resisted he beat her and forcibly injected her with Heroin. She was forced into prostitution and raped repeatedly by different men. She said that after a year DE allowed her to leave the house, but only to shoplift for him.
Between 8 July 2010 and 27 June 2012, the Claimant was convicted of theft on five occasions. She was sentenced to 42 days imprisonment in March 2012 and 28 days in June 2012. She says that on release from prison in April 2012 she discovered that DE was in prison. She then began a relationship with a female friend she had made at HMP Holloway. The two women then relocated together to Lithuania believing that DE was in the UK.
The Claimant reports, however, that they were spotted by family or friends of DE and subsequently kidnapped, taken to woods and gang-raped. She says that DE appeared at the site of the rape. The Claimant alleges that he threatened them with death if the Claimant did not return to him. The Claimant was shortly thereafter brought back to the UK to resume captivity and forced prostitution for a further four years until, in 2017, DE was deported. During this period the Claimant was again convicted of theft or attempted theft.
The Claimant says that after DE was deported she began working as a gardener and cleaner. On 17 June 2017, she was convicted of possession of cannabis and of other offences and a suspended sentence was activated. She was taken into custody at HMP Bronzefield.
On 20 June 2017, the Claimant was served with a Notice of Liability to Deportation. The following day she was served with a notice that she was liable to deportation in accordance with the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”) and given the opportunity to submit any reasons as to why she should not be deported. On 23 June 2017 she was detained under immigration powers at the same establishment.
On 18 July 2017, whilst in detention, the Claimant prepared a detailed handwritten statement (“the 18 July Letter”) on her circumstances, setting out why she said she should not be deported. That described the abuse she had suffered at the hands of DE and the reasons why she feared return to Lithuania. I return to the detail of that letter below.
The Home Office conducted its first detention review on 21 July 2017 and decided to maintain detention. On 28 July 2017, the Defendant made a deportation order against the Claimant and certified it, pursuant to Regulation 33 of the 2016 Regulations. The same day she was transferred to Yarl's Wood IRC.
On 8 August 2017, the Claimant completed a form for potential adult victims of modern slavery for the National Referral Mechanism (“NRM”). That was sent to the NRM's Competent Authority.
The Defendant conducted a second detention review on 23 August 2017 and decided to maintain detention. On 25 August 2017, the Claimant's solicitors made representations regarding temporary release, the Regulation 33 certification and the delay in reaching what is called “the Reasonable Grounds Decision” under the NRM. On 31 August 2017, the Defendant refused the Claimant's temporary release.
On 19 September 2017, a general practitioner, Dr Mahmood, carried out an examination at Yarl's Wood IRC, pursuant to Rule 35 of the Detention Centre Rules 2001. On 22 September 2017, the Defendant conducted a third detention review in response to the Rule 35 report and decided to maintain detention.
The Home Office wrote to the Claimant on 26 September 2017, noting that she had applied for asylum under the Refugee Convention on the basis that she had a well-founded fear of persecution in Lithuania. Referring to paragraph 326E and 326F of the Immigration Rules, the Home Office declared her asylum claim inadmissible.
On 4 October 2017, the Competent Authority wrote to the Claimant at Yarl's Wood IRC, indicating that there were reasonable grounds for believing that the Claimant had been a victim of modern slavery (human trafficking), a decision which is referred to hereafter as “a positive Reasonable Grounds Decision”.
On 10 October 2017, the Home Office emailed the Salvation Army, a charitable organisation that provides accommodation for potential victims of trafficking, referring the matter for them, with a view to their providing appropriate accommodation for the Claimant.
On 12 October 2017, the Defendant conducted a fourth detention review which supported release. On 13 October, the Claimant's release referral was approved.
On 24 October 2017, the Home Office confirmed that the certification was maintained and a release referral had been made. On 27 November 2017, Mrs Justice Yip ordered the Claimant's release from detention to suitable accommodation, which release was to take place by no later than 30 November 2017. She ordered the Defendant to ensure that the Claimant received appropriate psychological therapy and counselling treatment within ten days of release. On 30 November 2017, the Claimant was released from detention to a safe house. She was then assigned a key worker, was registered with a GP and was provided with eight sessions of counselling, anti-depressants and medication to treat her drug dependence.
As noted above, the Competent Authority made a positive conclusive grounds decision on 29 June 2018, which it communicated to the Claimant on 2 July 2018. On 12 July, the Defendant withdrew the Regulation 33 certification and indicated he had decided to maintain the Deportation Order.
The 18 July 2017 letter
The 18 July letter features large in this case and it is convenient to set out here the detail it contained. The handwriting is good and, although at times the English is less than perfect, its meaning is tolerably clear. The letter contains the following assertions:
• On previous occasions, the Claimant says, she had reported that her partner was abusing her. She says that he was “beating me up”. She says that she opened up about both his physical abuse and his sexual abuse after her partner was deported. She...
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