History of the Case
H is a Vietnamese national who was trafficked to the UK in early 2013 as a minor. He was physically and sexually abused by his traffickers and forced to work in a cannabis house where he was arrested in October 2013. Whilst still a minor, he was released into Local Authority care but absconded 4 days later. He was re-arrested in 2016, then aged 19. An Immigration Officer referred him to the National Referral Mechanism (NRM) but his trafficking was not raised in the criminal proceedings. He was convicted of cannabis cultivation and sentenced to 8 months imprisonment. The Secretary of State for the Home Department (SSHD) made a litany of errors in dealing with H’s case.
Throughout the judicial review proceedings the Claimant challenged the following:
- The certification of the asylum and human rights claims
- The decisions to detain and maintain detention
- The decision to refuse the Claimant discretionary leave to remain as a victim of trafficking
- The failure to provide the Claimant with support and assistance
- The systemic breaches in the administration and treatment of victims of trafficking.
Prior to the substantive hearing, the SSHD conceded that the entire period of the Claimant’s detention was unlawful and agreed to pay substantial damages. He also conceded that the decisions to certify his asylum claim and refuse him discretionary leave were unlawful and agreed to reconsider these decisions.
At the substantive hearing on 18 and 19 July 2018 before Justice Nicol, the two remaining issues to be determined were:
Whether the SSHD breached his legal duty to provide support and assistance for the Claimant who had been trafficked to the UK as a child.
Whether the treatment that the Claimant received is illustrative of wider systemic failings in the treatment of victims of trafficking by the SSHD and as such the Court should grant declaratory relief.
In respect of ground 2, the Claimant’s position was that he was never provided with any support and assistance as a potential and actual victim of trafficking until his release from detention. The Claimant relied upon numerous deficiencies in the healthcare provided to him, including but not limited to:
- Breach of Rules 34 and 35 of the Detention Centre Rules
- Failure to conduct an individualised assessment of the Claimant’s needs as a potential victim of trafficking
- Failure to provide an interpreter during medical examinations.
It was argued that that the mere potential availability of medical services in a prison or an immigration removal centre (IRC) does not of itself satisfy the obligation to provide appropriate medical support. It was submitted that the Defendant’s failure to provide support and assistance was in breach of Article 4 of the European Convention on Human Rights, Article 12 of the Trafficking Convention, Articles 11 and 14 of the Trafficking Directive and Home Office policy.
In response, the Defendant’s position was that ground 2 served no useful purpose and should instead be considered in the quantification of damages that he had already conceded that the Claimant was entitled to for his unlawful detention. He argued that a distinction ought to be drawn between Rules 34 and 35 and the requirements of support in the various sources of law on which the Claimant relied as a victim of trafficking. It was submitted that the differences between the opinions of the treating clinicians in detention and the medical experts instructed by the Claimant was a clinical disagreement and did not allow the Judge to decide that the view of the detention centre medical staff was deficient.
In respect of ground 4, the Claimant’s position was that the Claimant’s case exposed a series of significant failings in the National Referral Mechanism (NRM) process of referral, identification, decision-making and notification. In summary the failings were:
- In relation to the interview process and the documentation for the NRM referral;
- The Claimant was assessed as an adult as opposed to a minor;
- Relevant authorities were not notified of the reasonable grounds decision;
- There were considerable delays in decision-making in the NRM process;
- The Home Office also acted in breach of obligations under the Trafficking Convention, Directive and policy in taking negative asylum and human rights decisions, whilst the Competent Authority were still considering the trafficking claims, and in pursuing deportation and removal at the same time.
The Claimant thus sought a declaration that the Defendant should undertake a review of his processes and policy relevant to these issues.
The Defendant’s response was to accept that there were operational challenges in his dealing with victims of trafficking given the large number of victims and that the scheme was still relatively new. The SSHD accepted that he is acknowledging the problems and seeking to address them. It was argued that in any event the errors and omissions in the Claimant’s case did not allow the Judge to conclude that there were systemic errors which should lead to any declaration from the Court.
Justice Nicol agreed with the Defendant that the Claimant had not made out ground 2. He found that a distinction has to be made between the obligations to the Claimant as a victim of trafficking and other obligations which may arise, including under the Detention Centre Rules.
Justice Nicol said that judicial review is not a procedure well suited for investigating factual disputes. For this reason he did not make findings on the standard of the healthcare provided by the treating clinicians and the interpreting services provided to the Claimant in immigration detention. The claim for judicial review on ground 2 was therefore dismissed.
In respect of ground 4, Justice Nicol found that while there were undoubtedly some errors in the handling of the Claimant’s own claim to have been a victim of trafficking, he considered that a wider declaration as to the systemic problems with the procedures for dealing with victims of trafficking was inappropriate and would not serve any purpose. Permission was therefore refused on ground 4.
H’s legal team has applied for permission to appeal to the Court of Appeal on ground 2 (failure to provide support and assistance), on the basis that the Judge failed to make relevant findings when relying on the evidence before him, including: the alleged breaches of the Detention Centre Rules 2001 (SI 238/2001), and the assessments of the treating clinicians in detention. Through this they also argue that the Judge was wrong to assume that he could not consider the relevant weight of the evidence in a judicial review. Further, the Judge erred in assuming that the challenge was effectively otiose where the SSHD accepted that the Claimant had been unlawfully detained but maintained the that legal obligation to provide support and assistance had been met.
The team believe that this case demonstrates that further guidance is needed on the threshold that is to be applied in determining whether the SSHD has met his legal obligations to provide support and assistance to victims of trafficking.
Counsel for the Claimant is Samantha Knights QC
of Matrix, instructed by Ahmed Aydeed
, Rachael Davis
, and Karen Staunton
from Duncan Lewis.