In this case, concerning a victim of re-trafficking, the High Court ruled in favour of the Claimant, CP, finding that the Secretary of State for the Home Department (SSHD) had breached the Claimant’s protective obligations under Article 4 of the European Convention on Human Rights and detained him unlawfully. The High Court also found that the Home Office’s initial negative conclusive grounds decision was unlawful and unreasonable.
As the authority responsible for both immigration functions, as the Secretary of State for the UK Border Agency, and the Competent Authority (CA), who is in turn in charge of identifying potential victims of trafficking, the claim was made against the Defendant on these main grounds:
(1) The failure to properly progress and investigate CP’s trafficking claim; and
(2) That the SSHD unlawfully subjected CP to immigration detention for a period of 70 days
CP was trafficked to the UK from Vietnam. He was first discovered and held to be a potential victim of trafficking (PVOT) when he was arrested by the police on 14 March 2016. He was found with other individuals in a van where there was hydroponic equipment, which is commonly used in the cultivation of cannabis.
One of the officers who encountered CP, in the company of another Vietnamese man and two ‘“white” men’, sent a report to the National Referral Mechanism (NRM), stating his suspicions that CP demonstrated “indicators of modern slavery”. CP was observed to be clearly nervous, acted as if instructed by another person, could not recite his address and the officer perceived him to be bonded by debt. The SSHD became aware of CP on 15 March 2016 as a PVOT as a result of the NRM referral. Owing to a breakdown in communication between police and the NRM, CP was released from custody on the same day to an address provided to the police. It is not clear who provided that address to the police.
CP claims he had nowhere to go and was later picked up by his traffickers and re-trafficked.
On 20 March 2016 the SSHD held that there were “reasonable grounds” to believe that CP was a PVOT. A letter was sent to CP, who was believed to be at the address held on police record, informing him of the decision and notifying him that after 45 days the CA would be making a conclusive grounds decision (CGD) in respect of his status and that documentation, including a witness statement, would aid this decision. This letter was never answered. On 21 April 2016 CP was invited to an interview via a letter. This too did not receive a response and was returned to sender on 27 April 2016. At this point the SSHD was aware that CP was not at the address provided to police, but they did not report him as a missing person.
On 6 September 2016 the SSHD decided that further information was required to make a CGD, sending another letter to CP at the same address, which was returned on 18 October 2016. After seeking further information from the police, including CP’s statement, the SSHD went back on their submission that further information was required and made the CGD without making further attempts to contact CP. That decision was negative.
It was after this that CP was found in a cannabis factory and arrested. He was denied the protection afforded to PVOT as the SSHD’s CGD was negative and was sentenced to 4 months imprisonment. During sentencing, the judge states:
“I have no doubt that when you made your way to this country you hoped that you would be able to do an honest job and that you have been exploited by other people.”
On 16 May 2017, CP was served with a Notice of a Decision to Deport, at which point he made an asylum application. His imprisonment ended on 25th May 2017 and, on 26th May 2017, CP was transferred to Harmondsworth Immigration Removal Centre. On 21 June 2017, he attended his asylum interview and on 29 June a doctor assessed him and submitted a Rule 35(3) report which supported his claim of head trauma inflicted by his traffickers.
Despite numerous representations and requests for a new NRM referral, CP’s trafficking claim was not allocated to a case-worker until 5 July 2017. Further, despite being recognised as a victim of torture, the SSHD decided that continued detention was justified and anticipated that removal could be realistically expected to take place within 5 months.
In their pre-action protocol letter to the SSHD, CP’s solicitors included a psychiatric report which stated that CP was suffering from post-traumatic stress disorder and that continued detention was a risk to his mental health. After an interim hearing on 2 August 2017, during which the SSHD resisted CP’s release, it was ordered that he be released into the care of the Salvation Army, which was done on 3 August 2017. A positive reasonable grounds decision in regards to his NRM referral was made on 8 September 2017, recognising him as a PVOT.
CP’s grounds concerning the SSHD’s failure to protect him as a victim of trafficking specifically drew on the CA policy which states that where the person referred to the NRM has gone missing, pending a conclusive grounds decision and not enough information is present to determine whether they are a victim of trafficking, the process should be suspended. The SSHD failed to do this, instead relying on the little information they had, allowing the CA to make a negative conclusive grounds decision, which put CP at risk of further harm.
The judge ruled that in doing this, the SSHD was in direct breach of the CA guidance in violation of CP’s rights under Article 4 of the ECHR.
It was held that the SSHD had unlawfully detained CP from the outset, the negative CGD was unlawful and the SSHD had breached the policy by failing to refer CP to the NRM when he was encountered after having been re-trafficked.
The Judge also found that the SSHD could not justify CP’s detention on public order grounds, since he had been deemed as posing a 'medium' risk of re-offending and there was a lack of contemporaneous reference to public order grounds in her detention reviews.
The Claimant was represented by Monika Glowacka and Sulaiha Ali, of Duncan Lewis, and Louise Hooper of Garden Court Chambers.