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Home Office fail to correctly identify a victim of trafficking resulting in over five months' unlawful detention (28 June 2019)

Date: 28/06/2019
Duncan Lewis, Main Solicitors, Home Office fail to correctly identify a victim of trafficking resulting in over five months' unlawful detention

Our client NN, was unlawfully detained by the Home Office for over five months after they failed to identify him as a victim of trafficking, and mistook him for another man who had been deported years previous.

NN, a Vietnamese national who was trafficked to the UK in 2016, was unlawfully detained at Morton Hall immigration removal centre last year after the Home Office refused to accept that he was not another Vietnamese national - T - who had previously been deported in 2011. The Home Office only agreed to carry out fingerprint tests after Duncan Lewis threatened them with legal action.


Background

NN was trafficked into the UK in 2016. He was forced to work unpaid at a cannabis farm by members of a gang. He was discovered by the police in October 2017 and subsequently arrested for the production of a Class B controlled drug. During the police station interview, NN disclosed a number of indicators that he was a victim of trafficking; however neither the police nor the Home Office referred him to the National Referral Mechanism (NRM) as a potential victim of trafficking. He was instead convicted of cannabis cultivation – despite a defence being available in criminal law if an individual was compelled to commit the criminal act in the course of their trafficking – and sentenced to 242 days imprisonment.

Prior to his sentencing suggestions arose that NN was a Vietnamese national who had been deported from the UK in 2011 following a drugs conviction and had re-entered the country in breach of the deportation order (T). Although the criminal judge found that NN was not T, the Home Office continued to refer to him as T, and after he had served half of his imprisonment sentence, transferred him to immigration detention, on the basis that there was an outstanding deportation order in place for T.

Upon his induction to immigration detention, NN repeatedly informed staff that he was not T. Pictures of NN and T were compared and differences between the two were noted. However despite this, the Home Office continued to identify NN and T as the same person and no investigations took place into NN’s identity.

In March 2018, NN claimed asylum. Whilst in detention he was assaulted twice by other residents with detention records noting that NN had signed a police disclaimer in regards to the assault. Additionally, NN did not undergo a mental and physical assessment within 24 hours of his admission to immigration detention, in breach of Rule 34 Detention Centre Rules 2001.

On 14th May 2018, a Rule 35 assessment was undertaken due to concerns the he was a victim of torture however the Home Office maintained NN’s detention using the facts from T’s case to argue that the detention should continue.


Duncan Lewis Solicitors instructions

On 31st May 2018, NN instructed Duncan Lewis Solicitors as his legal representatives. We wrote to the Home Office requesting that he be referred to the NRM as a victim of trafficking and that his identity be investigated. It was only after NN sought legal assistance that the Home Office referred him to the NRM and decided to compare NN’s fingerprints to T’s.

By late June, pre-action correspondence was sent to the Home Office and by 2nd July 2018 a positive reasonable grounds decision was made. Ten days later, NN was released from detention to safe-house accommodation.

Duncan Lewis began further pre-action correspondence regarding NN’s false imprisonment, however, the Home Office denied that his detention was unlawful, admitting only to making a mistake in identifying him as T.

Despite this admission, the Home Office continued to process NN’s trafficking claim under T’s name, disclosing both NN and T’s records to Duncan Lewis, in breach of data protection laws.

Following his release, NN was diagnosed with PTSD and depression and in January 2019 made a formal complaint to the Home Office that despite their acceptance that he was not T, they were continuing to process his claim under T’s name. The Home Office initially refused to respond to this complaint whilst he had outstanding pre-action correspondence against the Home Office, but by April 2019, confirmed that a separate file had been created for NN.


Conclusion

In February 2019, a positive Conclusive Grounds decision was made accepting that NN is a victim of trafficking. He was told that would have a further 45 days of trafficking support before it stops, and that no discretionary leave decision will be made while his asylum claim remains outstanding. Following an interim order by the court, his support as a victim of trafficking continued.

On 14th June 2019, the Home Office and NN agreed to settle the claim for false imprisonment for £45,000. NN has since had his screening and substantive interview in his asylum matter. He is now seeking advice on appealing his criminal conviction in light of the s45 Modern Slavery defence.

Caseworker Karen Staunton, part of the Duncan Lewis team representing NN commented;

"This is yet another example of the Home Secretary’s hostile environment leading to a complete disregard of the rights of victims of trafficking. This attitude in turn enables traffickers to exert greater power over their victims because they can tell victims that they will be disbelieved and detained should they seek protection from the Home Office."



Representation

NN is represented by public law director Ahmed Aydeed, and public law caseworkers Karen Staunton and Harvey Slade from the Duncan Lewis Birmingham office. Tom Hickman QC of Blackstone Chambers and Julianne Kerr Morrison of Monckton Chambers were instructed in the false imprisonment claim.






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