The Queen (on the application of Hoang Anh Minh) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Helen Mountfield |
| Judgment Date | 18 June 2015 |
| Neutral Citation | [2015] EWHC 1725 (Admin) |
| Docket Number | Case No: CO/17706/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 June 2015 |
[2015] EWHC 1725 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Helen Mountfield QC
Sitting as a Deputy High Court Judge
Case No: CO/17706/2013
Keelin McCarthy (instructed by Lawrence Lupin Solicitors) for the Claimant
Christopher Staker (instructed by Government Legal Department) for the Defendant
Hearing date: 11 February 2015
Helen Mountfield QC :
The issue in this case and the correct approach
This is a case about the proper operation of the procedures for determining whether a person may be a victim of trafficking. The Claimant is a Vietnamese man born in 1990. He was detained when entering the UK in the back of a lorry from France on 2 September 2013. The issue in this case is whether, in the series of decisions under challenge taken in the six weeks that followed that date (on 20 September, 25 September and 14 October 2013) the decision-maker erred in reaching the decision that there were "no reasonable grounds" to conclude that the Claimant was a victim of trafficking for the purposes of the Council of Europe Convention on Action against Trafficking in Human Beings, CETS No 197 ("the Trafficking Convention").
The Court's role is not to determine for itself whether there were or not such reasonable grounds, but to decide whether the decision-maker properly addressed himself to the right legal issue, and reached his decision on the basis of a rational application of the Defendant's policy guidance as to how this issue should be approached.
However, as well as an ordinary public law challenge, the Claimant says that the Defendant's failure correctly to apply her own Guidance meant that there was a breach of Article 4 of the European Convention on Human Rights (ECHR), which imposes positive obligations to take proportionate steps to investigate where there are indications that a person might have been subjected to trafficking by a third party.
In those circumstances, where fundamental human rights are in issue, I am required to give anxious scrutiny to the decisions which the Defendant reached, and to be satisfied that the decisions:
" show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account."
( R(FM) v SSHD [2015] EWHC 844 (Admin) at [30], quoting R(YH) v SSHD [2010] 4 All ER 448 at 24).
The greater the likely impact of a decision on the rights of the person affected, the greater the detailed justification and explanation which will be expected.
Nonetheless, I remind myself that the Court's task is one of review for error of law, not correctness, and that anxious scrutiny:
" does not mean that the court should strive by tortuous mental gymnastics to find error in the decision when in truth there has been none. The concern of the court ought to be substance not semantics."
( FM at [32], quoting R(Sarkisian) v IAT [2001] EWHC Admin 486 at [18]).
The Competent Authority's consideration of the trafficking claim and the parallel asylum process
Having been detained on entry to the UK, the Claimant immediately claimed asylum, and his claim was put into the "fast track process" on the same day.
Thereafter, matters moved swiftly in terms of his claim for asylum. He had a screening interview on 6 September 2013 and a substantive asylum interview on 17 September 2013. On 20 September 2013, the Defendant refused the Claimant's claim for asylum and humanitarian protection. His appeal against that decision was brought in the First Tier Tribunal (Asylum & Immigration Chamber) ("the FTT"). On 14 October 2013, his application to remove the case from the fast track process was refused, and on 16 October 2013 Immigration Judge Rowlands dismissed his appeal. The Claimant's application to appeal to the Upper Tribunal against the FTT asylum decision was refused. His appeal rights against the asylum decision were exhausted on 29 October 2013.
In a parallel with the asylum process — and indeed depending on the same interviews — the Claimant's case was also referred to the Home Office's Competent Authority under the Trafficking Convention to consider whether there were "reasonable grounds" for considering that the Claimant is a victim of trafficking. On 20 September 2013, the same day as the asylum decision, the Competent Authority also issued a decision finding that there were no reasonable grounds for concluding that the Claimant had been trafficked from Vietnam to Russia in 2009, or onward from Russia to the UK in 2013.
The Claimant asked for that decision to be reconsidered, but on 25 September 2013, the Competent Authority decision-maker refused to change the Defendant's position and found that there were still no reasonable grounds for concluding that the Claimant had been trafficked.
On 7 October 2013, the Claimant's lawyers wrote a letter under the pre-action protocol for judicial review setting out legal objections to the original "reasonable grounds" decision on 20 September 2013 and the review decision of 25 September 2013. With that letter, the Claimant's lawyers attached an undated statement from the Claimant and a report dated 3 October 2013 from Abigail Stepnitz, who is an expert in human trafficking. However, on 14 October 2013, the Defendant replied to the pre-action protocol letter contesting the claim, and — in response to the new material — the Competent Authority issued a further decision of the same date concluding that the 20 September 2013 decision should be maintained.
This application for judicial review was lodged on 24 December 2013, and permission was granted on the papers on 2 June 2014.
It is said on the Claimant's behalf that the Defendant's decision was flawed because she failed to apply relevant guidance on how a reasonable grounds decision should be made; and that — by reason of that failure — there has been a breach of a positive obligation to identify and support victims of trafficking under Article 4 European Convention of Human Rights ("ECHR").
The grounds identify the decision under challenge as being that of 25 September 20For the purposes of this analysis, I have taken the "reasonable grounds" decisions of 20 September 2013, 25 September 2013 and 14 October 2013 together, since it appeared to be common ground that any mistakes in the earlier decisions could have been cured by the later decisions, and the 25 September and 14 October decisions were by way of reconsideration of the first decision in the light of later material. The question I have asked is whether the analysis in all three letters, read together, is a lawful one, having regard to the nature of the test to be applied and the nature of the Guidance governing the approach to it.
The hearing took place on 11 February 2015. In May 2015, I became aware of a recent decision of Phillip Mott QC sitting as a deputy High Court Judge in R(FM) v SSHD [2015] EWHC 844 (Admin), and asked counsel for further submissions in writing as to whether the analysis of the Trafficking Convention and national system for determining trafficking claims as summarized in paragraphs 12 and 13 of that judgment was accepted. I also asked for submissions on propositions derived from analogous (but not identical) processes in age determination cases ( R(FZ) v Croydon LBC [2011] EWCA Civ 59) and in asylum cases where a decision-maker has to make a decision as to whether or not he is reasonably satisfied that asylum has been claimed at the earliest opportunity ( R(Q) v SSHD [2004] QB 36, [2003] EWCA Civ 364).
I am grateful to counsel for providing these written submissions in short order. In the event, I was persuaded by the Defendant's submissions that analogies from these additional cases did not add to the analysis of the issues before me.
The facts
Although it appears to be accepted that the Claimant came to England via Russia, the Defendant does not accept the Claimant's account of the circumstances in which he went to Russia or the means by which he was transported either to Russia or to the factory at which he worked while he was there.
The first time the Claimant explained his case to the Defendant was in his initial asylum screening interview on 6 September 2013. In that interview, he was recorded as having said that he had left Vietnam in 1999 (a date which, when asked if he wanted to correct anything in the record of the interview, he later corrected to 2009). He had travelled to Russia, where he stayed until June 2013, when he travelled to the UK. In that interview, he was recorded as saying that the reason he came to the UK was that he was an abandoned child who had lived in a Buddhist Temple in Vietnam and had come to look for his younger sister whom he believed to be living in the UK. He said that he had no friends or relatives or means of survival in Vietnam. He does not appear to have been asked why he came to the UK via Russia.
In his substantive asylum interview on 17 th September 2013, the Claimant's account was again that he had lived since childhood in a Buddhist Temple with a Buddhist monk whom he called "the Master". During the Phat Dang religious ceremony in 2009, authorities came and disrupted the ceremony and began to destroy things. The police arrested the Claimant and two or three others, after he had spoken out against the ruling Party. He was released by police the following evening. After he was released, the police twice came looking for him and...
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