High Court grants permission to apply for judicial review in challenge to the Home Secretary’s failure to publish guidance on the requirement to give ‘informed consent’ to withdraw from the National Referral Mechanism (NRM) and the unlawful imposition of reporting conditions by the Home Secretary, after grant of High Court bail.
On 10 March 2021, Duncan Lewis Solicitors issued judicial review proceedings on behalf of the Claimant, a Vietnamese asylum seeker and a victim of trafficking. The Claimant was a previous client of Duncan Lewis who was released from detention in January 2020 following an interim relief application lodged by our team. On 12 February 2020, the Claimant was re-trafficked and was reported to the police as a missing person by support workers at his safe house. We made several requests to the Home Office to be notified if the Claimant re-appeared.
In January this year, we were informed by the Home Office that the Claimant had been convicted of cultivating cannabis, re-detained in immigration detention, and had signed forms withdrawing his asylum and trafficking claims without legal representation. The trial judge’s sentencing remarks showed that there were clear indicators of re-trafficking: “You fall within a lesser role because you performed a limited role under coercion. There are aggravating features but they relate to the operation itself rather than you and your previous conviction relates to a similar occasion when you were made to do what you did”.
In March 2021 we issued judicial review proceedings on behalf of the Claimant challenging the lawfulness of his detention and the Home Office’s failure to obtain informed consent from the Claimant prior to the withdrawal of his trafficking claim. We further challenged the Home Office’s failure to publish sufficient guidance on the requirements for giving informed consent to withdraw from the NRM.
We made an application for interim relief on an urgent basis as the Home Secretary refused to release the Claimant. The Claimant was granted interim relief and the costs of the application on 18 March 2021 by HHJ Elvin QC who granted the Claimant High Court bail pursuant to the court’s inherent jurisdiction. The court ordered that the Claimant be released into safe house accommodation. We also requested bail conditions for the Home Office to liaise with the police’s Anti-Trafficking Unit to put in place safeguarding measures and for the Salvation Army to assess the Claimant’s protection needs, which were granted by the court.
Even though it was not ordered by the High Court, following the Claimant’s release from detention, the Home Office imposed an additional bail condition for the Claimant to report weekly, in-person, to an immigration official until further notice.
We filed an application to amend grounds to include a challenge to the unlawful imposition of the reporting condition on grounds that the Defendant does not have jurisdiction to impose conditions where the Claimant has been released on High Court bail pursuant to the court’s inherent jurisdiction.
The Home Office defended their decision to impose the reporting conditions and argued they had jurisdiction to do so. They agreed to suspend the Claimant’s reporting for an interim period but then reinstated the bail conditions.
The Claimant was potentially at risk of re-trafficking while reporting therefore we filed a further application for interim relief to suspend reporting pending the conclusion of the case. We asked that the court list a hearing to determine permission and the further application for interim relief. We are grateful to Unseen and Anti Trafficking and Labour Exploitation Unit (ATLEU) for providing supporting evidence in the case.
The High Court ordered that the Claimant report by phone pending the interim relief hearing. The Home Secretary, prior to the hearing, varied conditions and requested that the Claimant report by phone only.
On 29 June 2021, Mr Justice Lavender granted permission to apply for judicial review, he found that it was clearly arguable that the Home Secretary, unlawfully, failed to publish sufficient guidance on the requirement to give informed consent to withdraw from the NRM and that the Home Secretary does not have jurisdiction to impose conditions on the Claimant’s bail.
As the Claimant has been released from detention, the false imprisonment element of his claim has been transferred to the County Court.
Ahmed Aydeed, Liza Tilley and Nicole Lewis of the Birmingham Public Law team are the Duncan Lewis legal team in this matter. Counsel instructed are Chris Buttler QC of Matrix Chambers and Gayatri Sarathy of Blackstone Chambers.