ZV (Lithuania) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Moylan LJ,Lord Justice Underhill,Dingemans LJ |
| Judgment Date | 30 July 2021 |
| Neutral Citation | [2021] EWCA Civ 1196 |
| Docket Number | Case No: C4/2019/0210 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 1196
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM:
THE QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
MR JUSTICE GARNHAM
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Moylan
and
Lord Justice Dingemans
Case No: C4/2019/0210
Ms Samantha Knights QC and Ms Zoe McCallum (instructed by Duncan Lewis) for the Appellant
Mr Tom Brown (instructed by the Treasury Solicitor) for the Respondent
Hearing date: 4 th March 2021
Approved Judgment
INTRODUCTION
In order to explain the issues on this appeal it is necessary first that I summarise the factual and procedural history, but it is not necessary that I do so in any detail.
The Appellant is a Lithuanian national born on 8 July 1984. She is an established victim of trafficking 1. She was trafficked to this country in late 2009 by a man with whom she had been living to whom I will refer as DE. Over the next six or so years she was under his close control and was forced to act as a prostitute. She was frequently beaten by him and he encouraged her addiction to heroin. At his instigation she regularly engaged in shoplifting: she was convicted on nine occasions and had short terms of imprisonment. In 2012 she briefly escaped to Lithuania while DE was in prison, but she was found by his associates and after being abducted and raped she was brought back by them to this country.
In early 2017 DE was deported to Lithuania and the Appellant became free from his direct control. However, in April of that year she was convicted of possession of cannabis and a previous two-month sentence of imprisonment was activated, which she served at HMP Bronzefield. On 20 June 2017 she was served with notice of deportation on the basis that she was a persistent offender; and on the expiry of her sentence on 23 June she was detained under Immigration Act powers. At first she remained at Bronzefield but on 28 July she was transferred to Yarl's Wood.
Also on 28 July 2017 the Secretary of State made a deportation order. The Appellant has appealed against that decision, but the hearing of the appeal has been deferred pending the outcome of the present proceedings.
On the basis of disclosures made while the Appellant was in detention, on 8 August 2017 her case was referred under the National Referral Mechanism (“the NRM”), which is the UK machinery for identifying and supporting victims of modern slavery. On 4 October a unit within the Home Office acting as the “Competent Authority” decided that there were reasonable grounds to believe that she was a victim of trafficking, and thus that she was, in the jargon, a “potential” victim of trafficking. The effect of that decision was that she became entitled under the NRM to a 45-day “recovery and reflection period”. During that period she could not be removed from the UK, and she was also entitled to various forms of support. The reasonable grounds decision should have led to her early release from detention, but that did not occur.
In the meantime, the Appellant had made an application for asylum on the basis that if she were returned to Lithuania she would be at risk of persecution by DE. By letter dated 26 September 2017 the Home Office informed her that her asylum claim was “inadmissible” under paragraphs 326E and 326F of the Immigration Rules and would not be substantively considered, because as a member state of the EU Lithuania was regarded as a safe country of return. I will refer to that as “the inadmissibility decision”.
On 30 October 2017 the Appellant commenced judicial review proceedings against the Secretary of State seeking relief under a number of heads. At this stage it is sufficient to say that among other things she claimed (a) that her continuing detention was unlawful; (b) that she was being denied proper support as a potential victim of trafficking; and (c) that the inadmissibility decision was unlawful. On 27 November Yip J granted her permission to apply for judicial review and ordered that she be released within three days and provided with a package of support. She was duly released on 30 November.
The Appellant's claim was heard by Garnham J in Birmingham on 2 and 3 July 2018. Only a few days before the hearing the Competent Authority made a “conclusive grounds” decision accepting that she is a victim of trafficking. Partly for that reason, and partly also because of developments in the case-law which required further submissions, Garnham J did not hand down judgment until 18 October. He had to consider five grounds of challenge, but we are only concerned with two aspects of his decision, which I can summarise as follows:
(1) He rejected the Appellant's challenge to the inadmissibility decision.
(2) He rejected her claim that the provision of appropriate support had been both unlawfully delayed and inadequate.
I should, however, note that he held that the Appellant had been unlawfully detained for a period of 45 days, including the period between 23 October and 30 November 2017.
The Appellant sought permission to appeal on four grounds. On 6 November 2019 Irwin LJ refused permission on grounds 2 and 3 but granted it as regards the dismissal of her challenge to the inadmissibility decision (ground 1). As for ground 4, which challenged the decision that there had been no breach of the support duty during the period that she was detained, he ordered that the application for permission be adjourned to the hearing of the appeal, on the basis that if permission were granted it would be determined at the same hearing.
The Appellant was represented by Ms Samantha Knights QC and Ms Zoe McCallum, and the Secretary of State by Mr Tom Brown of counsel. The case was well argued on both sides.
The Appellant is entitled to anonymity pursuant to section 1 of the Sexual Offences (Amendment) Act 1992.
GROUND 1: THE INADMISSIBILITY DECISION
I should emphasise by way of preliminary that the Appellant's challenge is concerned specifically and only with the refusal of the Secretary of State to admit her asylum claim, and the issues which it raises are limited to the lawfulness of that decision. The Secretary of State accepts that even if the appeal is dismissed that will not be determinative of the Appellant's appeal against the deportation order or of her right to seek discretionary leave to remain as a victim of trafficking; and in either context she will be entitled to raise issues about humanitarian protection, including under article 3 of the European Convention on Human Rights (“the ECHR”).
THE BACKGROUND LAW
The Refugee Convention
The starting-point must be the Refugee Convention 1951. The Convention takes effect in domestic law by more than one route, but for present purposes I need only note that section 2 of the Asylum and Immigration Appeals Act 1993 (which is headed “Primacy of Convention”) reads:
“Nothing in the immigration rules … shall lay down any practice which would be contrary to the Convention.”
Likewise, in M v Ministervo Vnitra C-391/16 the Grand Chamber of the Court of Justice of the European Union (“the CJEU”) confirmed that the provisions of the Convention constitute primary EU law. The Refugee Convention also underlies Directive 2011/95/EU, the so-called “Qualification Directive”, which prescribes how member states must decide applications for asylum. (I refer to the Directive for completeness, but it does not in fact apply to the present case, because it only applies to claims for asylum by non-EU nationals.)
I need not set out the detailed provisions of the Refugee Convention. It is sufficient to say that it prohibits the return of a person to a country where they have a well-founded fear of persecution. A country where there is no risk of persecution is referred to in the jurisprudence as a safe country of origin.
It is established as a matter of both domestic and EU law that the concept of “persecution” covers not only persecution by the state from which the putative refugee has fled but also persecution by non-state actors where the state authorities are unable or unwilling to provide protection against the ill-treatment which they fear: see Horvath v Secretary of State for the Home Department [2000] UKHL 37, [2001] 1 AC 489, (and article 6 (head (c)) of the Qualification Directive). The effect of that test is explained in the majority opinion of Lord Hope in Horvath. One of the issues before the House was, as he puts it at p. 494 G-H:
“What is the test for determining whether there is sufficient protection against persecution in the person's country of origin—is it sufficient, to meet the standard required by the Convention, that there is in that country a system of criminal law which makes violent attacks by the persecutors punishable and a reasonable willingness to enforce that law on the part of the law enforcement agencies? Or must the protection by the state be such that it cannot be said that the person has a well-founded fear?”
As to that, he says at p. 500 F-H:
“[T]he answer … is to be found in the principle of surrogacy. The primary duty to provide the protection lies with the home state. It is its duty to establish and to operate a system of protection against the persecution of its own nationals. If that system is lacking the protection of the international community is available as a substitute. But the application of the surrogacy principle rests upon the assumption that, just as the substitute cannot achieve complete protection against isolated and random attacks, so also complete protection against such attacks is not to be expected of the home state. The standard to be applied is therefore not that which would...
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