In this case, a claim was brought to challenge the lawfulness of detention concerning an EU national who is a victim of trafficking and the certification of her removal under Regulation 33 of the Immigration (European Economic Area) Regulations 2016 (EEA Regulations 2016).
History of case
This case concerned a Lithuanian national (ZV) who was trafficked to the UK by her ex-partner. She was beaten, forcibly injected with heroin, forced into prostitution and to commit shoplifting offences by her ex-partner, for which she received convictions.
The Claimant informed the Secretary of State (the Defendant) that she was abused, controlled by her ex-partner and she feared returning to Lithuania as she believed her partner had been deported there.
The Defendant may only remove the Claimant if he certifies that the removal pending the outcome of her deportation appeal would not be unlawful under Section 6 of the Human Rights Act 1998.
Despite being informed by the Claimant that she is a potential victim of trafficking, the Defendant made the decision to deport her and certify her removal as permitted under Regulation 33 of the EEA Immigration regulations 2016 on grounds of public policy, pending her appeal. The Defendant also considered that the Claimant would not face a real risk of serious irreversible harm if she was to be removed pending the outcome of her appeal.
Significantly, the Defendant still made the decision to certify the Claimant’s removal after recognising that there were indicators that the Claimant may be a victim of trafficking and he had referred her to the Competent Authority.
The Competent Authority (who is also the Defendant) is required to make a Reasonable Grounds (RG) decision within 5 working days of the National Referral Mechanism (NRM) referral. It took the Defendant more than 2 months to determine that there were reasonable grounds to believe that the Claimant may be a victim of trafficking. The reason given for the delay was that the Competent Authority was on annual leave. After the positive RG decision was made, the Claimant continued to be detained and was only released when an urgent interim relief application was made to the Court. The Claimant was detained just under 2 months before the Defendant was ordered by the Court to release her from immigration detention. Thereafter, a positive Conclusive Grounds decision was made and served in the evening of the first day of the oral substantive hearing for the Judicial Review claim, 9 months after the RG was made.
It was decided that the Claimant was entitled to substantial damages for her unlawful detention of 45 days.
Judge Garnham states, “There was an obligation on the Secretary of State, in my judgment, urgently to take the steps necessary to effect her release. I can detect no such urgency. On the contrary, the impression with which I am left is of a marked reluctance to complete the necessary process.”
Unfortunately, the entire period (5 months) of the Claimant’s detention was not considered unlawful and the Claimant’s legal team are currently appealing the decision to the Court of Appeal.
Nonetheless, the result of the judgment does reiterate the Secretary of State and Competent Authority’s duty when making RG decisions regarding a detainee’s position as a potential victim of trafficking. In this case the delay and continued detention, even after a positive RG decision was made, was considered unlawful, and the Claimant was awarded substantial damages. As a result, other NRM related failures will come under similar scrutiny in future cases, which could equate to greater protection for potential victims of trafficking in the future.
The Claimant is represented by Phong Ma and Ahmed Aydeed from our Public Law & Immigration departments in the Midlands (Leicester and Birmingham), who instructed Samantha Knights QC and Zoe McCallum from Matrix Chambers.
The Guardian also commented on the case and can be found here: