Court of Appeal - Administrative Court, August 06, 2018, [2018] EWHC 2122 (Admin)

Resolution Date:August 06, 2018
Issuing Organization:Administrative Court
 
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Neutral Citation Number: [2018] EWHC 2122 (Admin)

Case No: CO/3449/2017

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 6 August 2018

Before :

KARON MONAGHAN QC

Sitting as a Deputy High Court Judge

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Between :

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Ms. Hooper (instructed by Duncan Lewis Solicitors) for the Claimant

Mr. Hansen (instructed by the Government Legal Department) for the Defendant

Hearing dates: 13 February 2018

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By order dated 2 August 2016 the Claimant has been granted anonymity and no report of this case shall directly or indirectly identify the Claimant.

KARON MONAGHAN QC:

Introduction

  1. In summary, by this claim the Claimant challenges the Defendant's failures to properly progress his trafficking claim and to subject him to immigration detention for a period of 70 days.

  2. This case was listed for judgment on 11 May 2018. Unfortunately I discovered on the evening of 10 May 2018, when the Defendant's counsel alerted me to it, that both parties had lodged submissions after the hearing of the claim, voluntarily, to address an issue raised in oral argument. Those submissions were not forwarded to me by the Court office and I was unaware that they had been lodged. The case was therefore taken out of the list to allow me time to consider them. These submissions addressed the case of EM v Secretary of State for the Home Department [2016] EWHC 1000 (Admin) to which I revert below.

  3. Before judgment was listed for hand down a second time, I became aware of the judgment in R (TDT) v SSHD [2018] EWCA Civ 1395 which seemed to me might have a significant bearing on this case. I therefore provided the parties with the opportunity to make submissions on TDT. Submissions were received in writing from the parties (the last dated 9 July 2018). Though the parties were invited to notify me if they considered an oral hearing was necessary to address TDT, neither did so.

    Factual Background

  4. The Claimant is a Vietnamese national who was born on 4th January 1982. He arrived in the UK on an unknown date.

  5. The Defendant is responsible for immigration functions as the responsible Secretary of State for the UK Border Agency. She is also responsible for the ``Competent Authority'' (``CA'') which in turn is responsible for the identification of trafficking victims (through the National Referral Mechanism: ``NRM'').

  6. The Claimant first came to the attention of the authorities on 14th March 2016 when he was encountered by police officers from the West Mercia police force at Frankly Service Station with three other men; one Vietnamese man and two ``white'' men. The officers plainly had concerns about the Claimant since one of them completed a referral form in respect of the Claimant and submitted it to the NRM. In that form, the officer completing it identified certain ``general indicators of modern slavery.'' These included that the Claimant was ``distrustful of authorities'' and ``acts as if instructed by another''. The officer also noted that the Claimant's passport or documents were held by another; that he lacked access to medical care; that he had limited social contact; that he did not know his home or work address and that the officer perceived him to be bonded by debt. The officer gave an account of the information provided by the Claimant which included that the Claimant had paid $20,000 to fly from Vietnam to France and that though he had a genuine passport he was in possession of false documents since he had handed his passport over to a man he did not know when he arrived in France. The Claimant said that he was then taken to the UK in the back of a lorry, entering the UK illegally. The officer noted that the Claimant was ``clearly nervous''. The Claimant was recorded as stating that a person called ``Nam'' had told him on the day he was apprehended by the officers to go with the two white men with whom he was found. There was hydroponic equipment (commonly used in the cultivation of cannabis) in the van in which the officers found the Claimant, and the two white men were found in possession of small quantities of cannabis. The officer completing the form also noted that he believed that the Claimant had been ``told what to say'' by the other Vietnamese man (who was also suspected by the arresting officers of having been trafficked) and that he was ``reluctant to go into any detail''.

  7. The two white men were taken into custody. The Claimant was (initially at least) treated as a victim and, as I have mentioned, a referral was made to the NRM. In consequence of this the Claimant came to the attention of the Defendant on 15th March 2016 as a Potential Victim of Trafficking (``PVOT''). During the course of his detention it appears that the Claimant and the other Vietnamese man were interviewed and made statements to the effect that they had not been trafficked. The documents indicate that there was then some confusion as to who was responsible for dealing with the men. The police spoke to one of the Defendant's immigration officers and to the Defendant's Criminal Cases Unit for advice given that the custody time limits were approaching. The police were advised that since the Claimant had by then been referred to the NRM, the immigration authorities were unable to do anything until the NRM had undertaken an investigation. It appears that the police then spoke to the ``NRM out of hours number'' (the Salvation Army who provide safe homes and support for PVOTs) and then concluded that the Claimant would be released from custody when the custody time limit expired and could go home if he had somewhere to live, or would be referred to the Salvation Army. Records from the Salvation Army show that the police contacted them on 15th March 2016 and the Salvation Army advised the police to let them know if the Claimant needed support. As matters transpired, on 15th March 2015 the Claimant was released from custody to an address provided to the police. It is not clear who provided that address to the police. The Defendant's contemporaneous records include an entry for that date stating that ``it appears that there has been a breakdown in communication between police and NRM''. No action was taken in respect of the hydroponic equipment because the police concluded that the possession of the equipment alone was insufficient to found a criminal charge. The two white men were cautioned for possession of the cannabis.

  8. The Salvation Army contacted the police on 16th March 2016 to follow up on the earlier call to them but their call was not answered or returned. In any event, the Claimant had left police custody by then and there is no suggestion that he was ``signposted'' to the Salvation Army. The Claimant says that following his release from custody he had nowhere to go since he did not know where he had been staying or where his traffickers were. The Claimant has said that after his release, he was picked up from a street in the Birmingham area by men and re-trafficked. In due course the Claimant was found in a cannabis factory. I shall return to this.

  9. In the meantime, on 20th March 2016, the Defendant concluded that there were ``reasonable grounds'' to believe that the Claimant had been ``a victim of modern slavery (human trafficking)''. This decision was made within the 5-day target the NRM sets itself for the making of reasonable grounds decisions. The minute of that decision records the details provided by the police when making the referral to the NRM that I have already set out, and noted in conclusion that the Claimant's claim was both internally and externally consistent and that the decision-maker ``suspect[ed]'' but could not ``prove'' that the Claimant was a PVOT. The consequence of that decision was that the Claimant was granted a 45-day ``recovery and reflection period'' (that is, until 4th May 2016). During that period the Claimant was entitled to safe accommodation and support. A letter was sent to the Claimant notifying him of the decision and informing him that at the end of the 45 day period, the Competent Authority would make a ``conclusive grounds'' decision as to whether the Claimant was indeed a victim of modern slavery. The letter went on to state that in the meantime the police and other UK law enforcement authorities might continue with investigations and that, though he was under no obligation to cooperate, it might be important in helping to bring to justice those responsible for his exploitation if he did so. The letter stated that it would ``greatly assist'' if the Claimant were able to provide documents applying to his case, including among others, a witness statement. The decision letter was sent to the Claimant at the address held by the police. There was no response to that letter.

  10. A further letter was sent to the Claimant on or around 21st April 2016 inviting him to an interview. Again this was sent to the address held by the police. This letter was returned to the Defendant resulting in a note being placed on the Defendant's records on 27th April 2016 that the Claimant was not at the address to which the letter had been sent. Ms. Hooper, for the Claimant, submits that at that point at the latest the Defendant should have appreciated that the Claimant was missing and the police should have been notified in case the Claimant was or could be found given that there were reasonable grounds to believe that he had been a victim of modern slavery. This was not done.

  11. On 6th September 2016, the Defendant wrote to the Claimant again advising him that in order to come to a conclusive grounds decision further information was required. The letter asked for a full statement by 14th September 2016. That letter was sent to the same address as the earlier letters and...

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