Upper Tribunal (Immigration and asylum chamber), 2017-06-30, [2017] UKUT 331 (IAC) (R (on the application of FT) v Secretary of State for the Home Department (“rolling review”; challenging leave granted))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mrs Justice Cheema-Grubb, Upper Tribunal Judge Blum |
| Status | Reported |
| Date | 30 June 2017 |
| Published date | 10 August 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | “rolling review”; challenging leave granted |
| Hearing Date | 09 June 2017 |
| Appeal Number | [2017] UKUT 331 (IAC) |
R (on the application of FT) v Secretary of State for the Home Department (“rolling review”; challenging leave granted) [2017] UKUT 00331(IAC)
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review Decision Notice
The Queen on the application of FT
(Anonymity Direction Made)
Applicant
v
Secretary of State for the Home Department
Respondent
Before Mrs Justice Cheema-Grubb
Upper Tribunal Judge Blum
Application for judicial review: substantive decision
Having considered all documents lodged and having heard the parties’ respective representatives, Ms M Knorr, of Counsel, instructed by Wilson Solicitors LLP, on behalf of the applicant and Mr Z Malik, of Counsel, instructed by the Government Legal Department, on behalf of the respondent, at a hearing at Field House, London on 09 June 2017.
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The intrinsic undesirability of and the strong general presumption against allowing a “rolling review” in judicial review proceedings whereby the Upper Tribunal admits material evidence that has not been considered by the primary decision maker are important factors in considering an application to amend grounds to challenge a supplementary or new decision (see R (Caroopen & Myrie) v SSHD [2016] EWCA Civ 1307). However, the decision whether to allow amendments of the grounds of challenge is a case management decision taking account of all relevant considerations.
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In applying the policy set out in the Competent Authority Guidance and the Discretionary Leave Guidance, the fact of the respondent having “mishandled” the case and the impact of that upon the applicant, are relevant/material considerations in determining the duration of leave to be granted to a Victim of Trafficking.
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Where the respondent has regard to an earlier disengagement from treatment in considering the duration of leave to be granted, a relevant consideration is whether that disengagement from treatment was because of a failure to provide support as a VOT because of an earlier incorrect “conclusive grounds decision”.
Decision: the application for judicial review is granted
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This judicial review application concerns the lawfulness of the duration of leave granted to the applicant, a recognised Victim of Trafficking (VOT).
Background and procedural history
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These proceedings have a long and protracted history. The essential facts giving rise to the applicant’s eventual recognition as a VOT are not in dispute. He is a citizen of China born on 26 July 1980. He and his younger sister lived with their parents who fought, often about money. The applicant was frequently beaten by his parents with a rod or leather belt. His mother, with whom the applicant had a particularly fraught relationship, died in the year that he left primary school. His father drank to excess and suffered from liver disease. After an unhappy time at school the applicant obtained work as a manual labourer. During the course of this employment he had quarrels with one of the workers and was subsequently assaulted by police officers acquainted with the worker. The applicant’s uncle borrowed a significant sum of money from people traffickers to facilitate his departure from China sometime in 2007 and his clandestine entry into the United Kingdom in August 2007.
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The applicant remained under the control of the traffickers and was compelled to work, under threat of violence and without remuneration, in a ‘cannabis house’ where he was locked in and held in debt bondage. On one occasion, having asked to leave, he was threatened with a knife and a gun and his arm was cut causing extensive bleeding and leaving a scar.
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On 23 November 2007 the applicant was arrested on suspicion of cultivating cannabis. On the day of his arrest he gave a statement to the duty solicitor disclosing indicators of trafficking. These included the borrowing of £17,000 from the traffickers, the absence of any wage for his work, and concern about his indebtedness and the problems he believed may be visited on his family in default of repayment. He was later charged with that offence and he pleaded guilty on 24 November 2007. He was convicted and sentenced to 20 months imprisonment on 31 January 2008.
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During an interview with immigration officers on 14 March 2008 the applicant claimed asylum. He was not questioned about the arrangements for his travel to the UK, the money owed to the traffickers, or how he came to be working in the cannabis house. Trafficking was not considered as part of his asylum claim. He was taken into immigration detention on 23 September 2008 following completion of his sentence, and his asylum claim was refused on 11 October 2008. The applicant did not appeal that decision. A deportation order was made against him on 12 November 2008.
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The applicant remained in immigration detention for nearly 4 years before being released into NASS accommodation on 20 September 2012. He was placed under curfew and electronically tagged. These restrictions were only lifted on 31 March 2016 following the threat of judicial review action. On 15 August 2013 the applicant was referred by the Salvation Army into the National Referral Mechanism (NRM) for the purpose of identifying him as a potential VOT. A positive “reasonable grounds” decision was made on 22 August 2013. A civil claim for damages challenging the lawfulness of the applicant’s detention and the failure to identify him as a VOT was issued on 29 September 2013. Those proceedings, which remain outstanding, have been stayed pending the outcome of this litigation.
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Written representations were provided on behalf of the applicant in support of the awaited “conclusive grounds” decision. These included, inter alia, a statement from the applicant (1 November 2013) and a medico-legal report (14 November 2013) prepared by Mary Robertson, a Chartered and Consultant Clinical Psychologist and Head of Service at the Traumatic Stress Clinic, Camden and Islington NHS Foundation Trust. Her medico-legal report diagnosed the applicant with severe Post-Traumatic Stress Disorder (PTSD), a Major Depressive Disorder in the severe range, and anxiety in the moderately severe range.
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The respondent made negative “conclusive grounds” decisions on 13 January 2014 and 3 March 2014 finding that the applicant was not a VOT. This brought about the end of outreach and financial support that had been provided to him between 23 December 2013 and 23 January 2014 following the initial “reasonable grounds” decision. The “conclusive grounds” decisions were challenged by way of judicial review which ultimately settled by consent. On 02 July 2014, the respondent accepted that the applicant was a VOT but declined to grant him Discretionary Leave (DL) and decided that his deportation would be pursued. This decision was maintained on 17 September 2014 following further submissions by the applicant’s representatives that included a letter from a counsellor at Room to Heal dated 08 September 2014, confirming that the applicant attended a lengthy assessment, that he was severely isolated and had great difficulties trusting people, and that he would be well suited to the kind of therapeutic program provided by the organisation. No steps were taken by the respondent to reinstate the applicant’s support following her acceptance that he was a VOT.
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The applicant challenged the decisions dated 2 July 2014 and 17 September 2014 by way of judicial review. He also made a fresh asylum and human rights claim on 5 May 2015. On 12 May 2015 further representations were made seeking a grant of leave to remain in reliance on the respondent’s trafficking policy. These representations were accompanied by a letter indicating that the applicant was due to attend an appointment at the Refugee Therapy Centre (RTC), which had offered him counselling, a China country expert report prepared by Dr Jackie Sheehan and documents confirming that an application had been made to the Criminal Cases Review Commission (CCRC) regarding his conviction. On 15 July 2015, following a grant of permission to proceed with...
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