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The Queen (on the application of FM) v Secretary of State for the Home Department

Judgment Cited authorities 16 Cited in 10 Precedent Map Related
Vincent
JurisdictionEngland & Wales
JudgePhilip Mott
Judgment Date26 March 2015
Neutral Citation[2015] EWHC 844 (Admin)
Docket NumberCase No: CO/6034/2014
CourtQueen's Bench Division (Administrative Court)
Date26 March 2015
Categories

[2015] EWHC 844 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Philip Mott QC

Sitting as a Deputy High Court Judge

Case No: CO/6034/2014

Between:
The Queen (on the application of FM)
Claimant
and
Secretary of State for the Home Department
Defendant

Christopher Buttler (instructed by Deighton Pierce Glynn) for the Claimant

Christian Jowett (instructed by Treasury Solicitor) for the Defendant

Hearing dates: 19 & 20 March 2015

Philip Mott QC:

1

The Claimant is a victim of trafficking. That was accepted by the Defendant in a Conclusive Grounds decision on 3 October 2014. The same decision concluded that she did not qualify for leave to remain and was liable to removal from the UK. The Claimant challenges that decision, permission having been granted by Rose J on 6 February 2015.

2

The Claimant's history, as accepted by the Defendant, appears in the consideration minute which lay behind the decision of 3 October 2014. I can summarise it shortly. She was born on 11 June 1987, and is now aged 27. She comes from Ethiopia. She left Ethiopia in 2006, travelling to Sudan and then to Saudi Arabia to work for a Saudi family. Whilst in Saudi Arabia she worked from about 6 am to midnight, 7 days a week. She was told not to leave the house, and did not do so. Her passport was taken from her. She was often hit by her employer, her hair and her clothes were pulled, and she was insulted. She was not allowed to visit a doctor or to go to shops on her own. She was not taken to the doctor on an occasion when she needed medical attention. She was provided with no sanitary protection, and had to steal it from the family's bathroom. She was not allowed to eat with the family, did not have her own food, and survived on leftovers. She had no social contact with anyone outside the family for which she worked.

3

On 31 January 2009 she travelled to the UK with her employer as a domestic worker on a visa valid until 31 December 2012. The treatment she received did not noticeably change on arrival in the UK. She slept in a room used by the family to store their clothes. She had no privacy as members of the family would come into the room whenever they pleased.

4

As a result of this sustained conduct she became scared of the family, and what they might do to her. After about 6 months in the UK she escaped from her employer, and claimed asylum on 28 July 2009. She was granted Temporary Admission, which was renewed on a number of occasions. However it was not until 17 January 2014 that her case was referred to the national referral mechanism ("NRM") which deals with potential victims of trafficking. The basis of that referral, by a Home Office official, was the Claimant's asylum screening interview as long ago as 28 January 2009.

5

Thereafter, a positive Reasonable Grounds decision was issued on 31 January 2014, followed by a negative Conclusive Grounds decision on 19 March 2014. This was challenged in judicial review proceedings in June 2014 which were compromised by a consent order on 5 August 2014 in which the Defendant agreed to reconsider the Conclusive Grounds decision. Meanwhile her asylum claim had been rejected and an appeal dismissed.

6

The reconsideration led to a positive Conclusive Grounds decision on 3 October 2014. This concluded that the Claimant had been trafficked. It continued:

"Although you were found to be trafficked because of the particular circumstances of your case, those circumstances no longer exist and as you do not qualify for leave to remain in the UK you will be liable for removal."

7

Those somewhat laconic reasons were followed by a supplementary letter on 12 November 2014 in reply to one from the Claimant's solicitors challenging the refusal of leave to remain. The supplementary letter stated:

"As you will be aware, there are two avenues by which victims of trafficking may qualify for a period of leave. Your client is not co-operating with an ongoing police investigation, therefore does not qualify in this capacity. The other avenue by which she may qualify for leave is her 'personal circumstances'. When deciding whether your client's circumstances were such that she required a period of leave, the Competent Authority had due regard to all of the evidence submitted at the date of the decision.

…

With regard to [FM]'s personal circumstances, she left her trafficking situation five years ago. She entered the NRM in January 2014. Consideration has been given to any medical or psychological needs she may have as a result of her trafficking experience. It is noted that [FM] was asked during her first interview whether she was receiving any counselling. She indicated that she was not. During her second trafficking interview, during which she was accompanied by a BAWSO support worker, she stated that she was not receiving any counselling but that she communicates with one of the BAWSO counsellors on the phone occasionally. She indicated that she has a social worker.

…

No post-decision representations have been submitted through the apposite route … Neither [FM]'s BAWSO support workers nor the first responder have contacted the Competent Authority to adduce any additional evidence, nor have they raised concerns that the decision is not in line with published guidance. It is noted that you have not submitted any additional information regarding your client's personal circumstances."

8

Thereafter there was pre-action protocol correspondence, but no further explanation or reconsideration of the case. The Defendant made the point that the Claimant's solicitors had not submitted further evidence, in particular as to whether she had started receiving counselling or was due to start it.

9

The claim form in these proceedings was filed on 23 December 2014. With it was a witness statement from the Claimant saying that she was willing to undergo counselling.

Provisions against trafficking

10

The Council of Europe Convention on Action against Trafficking in Human Beings ("CAT") was signed on 16 May 2005. It was ratified by the UK on 17 December 2008, but has never been directly incorporated into domestic law. Instead, the UK's international obligations have been implemented by the adoption of procedures and policies by government ministers responsible. The most important of these is the Defendant, who has issued and updated a document now called "Victims of human trafficking – competent authority guidance" ("the Guidance").

11

The relevance of the CAT in this sort of challenge, and that of the Explanatory Report ("CATER") which accompanied it, have been considered by the Divisional Court in R (Atamewan) v SSHD [2014] 1 WLR 1959. The following principles are now established:

i) Insofar as the Guidance purported to give effect to the terms of the CAT and failed to do so, that would be a justiciable error of law. In general it is not disputed, as I found in the case of R (E) v SSHD [2012] EWHC 1927, that the Defendant has adopted the CAT in her published Guidance. The exception in Atamewan in respect of Article 27 of the CAT no longer applies because of changes in the wording of the Guidance, as set out below, which clearly now purport to give effect to Article 27 of the CAT, as the Defendant accepts.

ii) Because the Defendant, and the agencies acting on her behalf, are public authorities for the purposes of the Human Rights Act 1998, they must not do anything that would be contrary to a person's rights under the European Convention on Human Rights ("ECHR"). One of those rights, under Article 4 of the ECHR, is not to be subjected to slavery. That provision must be read in harmony with the general principles of international law. Those principles include the CAT, which is a more detailed approach to the prevention and relief of slavery by means of trafficking. Thus a failure to comply with the obligation in the CAT is amenable to judicial review by this route.

iii) As a result of these two principles it is not disputed on behalf of the Defendant in the present case that I am entitled to look at both the CAT and the CATER when considering the Defendant's duties under her published Guidance.

12

The structure and purpose of the CAT in relation to assistance for victims is analysed in Atamewan. The following provisions of the CAT and CATER are relevant to the present case:

i) The paramount objectives of the CAT are "respect for victims' rights, protection of victims and action to combat trafficking in human beings" [Preamble]. The purposes include "to protect the human rights of the victims of trafficking, design a comprehensive framework for the protection and assistance of victims … as well as to ensure effective investigation and prosecution" [Article 1(1)(b)]. Two of the main aims of the CAT are "the protection of the rights of trafficked persons and the prosecution of those responsible for trafficking". Those two aims are related to each other [CATER §57].

ii) The first stage is to identify victims and make a reasonable grounds decision. Thus, "if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings" they must take various steps, including to "ensure that that person receives the assistance provided for in Article 12, paragraphs 1 and 2" [Article 10(2)].

iii) The assistance provided for in Article 12 (1) requires the state to "adopt such legislative or other measures as may be necessary to assist victims in their physical, psychological and social recovery". This includes providing "appropriate and secure accommodation, psychological and material assistance" and...

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