Y, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 62 (Admin)

Case No CO/9946/2009[2013] EWHC 62 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/01/2013
Before
PHILIP MOTT Q.C.Sitting as a Deputy High Court Judge
Between
THE QUEENClaimant(on the application of “Y”)ClaimantSECRETARY OF STATE FORDefendantTHE HOME DEPARTMENTDefendant
Eric Fripp and Althea Radford (instructed by Messrs Wilson LLP) for ClaimantDr Christopher Staker (instructed by Treasury Solicitor) for DefendantHearing Hearing dates: 14 th December 2012
JudgmentPhilip Mott QC :
[1]On 20 April 2012 I handed down judgment in this case, concluding that the decision letter of 14 December 2009 was open to challenge in two respects. As to the period for which the Claimant was in an unknown foreign country, the decision was bad for lack of proper reasons. As to the period during which the Claimant was held in the UK, the decision was irrational in that the only proper conclusion was that the Claimant was then a victim of trafficking.[2]I left open the question whether those conclusions had any practical value, or were merely academic since the further decision that the Claimant no longer qualified for Convention assistance was not only rational but almost inevitable. I invited written submissions from the parties and these have now been received.[3]Mr Fripp, for the Claimant, submits that the conclusions are important. He points first to Article 10(2) of the Convention, which obliges the Defendant to identify victims, which identification leads to certain consequences including a bar on removal until the identification process is complete. He also relies on the entitlement of a victim to the assistance provided for in Article 12, notwithstanding that in this particular case the Claimant now needs no such assistance.[4]Dr Staker, for the Defendant, submits that the bar on removal no longer applies because the Claimant has been identified as a victim, at least during the period when she was held in the UK, and it is unnecessary for the Defendant to make any further decision on her status when in the unknown foreign country. He further submits that the identification of the Claimant as a victim is of no practical value where she no longer qualifies for Convention assistance. In those circumstances, he argues, the Claimant has not succeeded in her challenge overall and the Defendant should be entitled to her costs of the proceedings.[5]Mr Fripp has filed further submissions in reply which repeat his reliance on Article 10(2).[6]Since handing down the substantive judgment in this case I have heard and given judgment in another human trafficking case, R (on the application of E) v Secretary of State for the Home Department [2012] EWHC 1927 (Admin). The decision under challenge was later in time, and involved consideration of the revised Asylum Process Guidance. This makes clear on page 36 that individuals who are conclusively found to be victims of trafficking, but who do not currently qualify for Convention assistance (i.e. people in the position of this Claimant) “must still be issued with a positive conclusive grounds decision”. That decision is important if and when the individual returns home, when the home state will owe duties under Article 16(2) of the Convention.[7]The judgment in R (on the application of E) v Secretary of State for the Home Department post-dated the written submissions sent to me, and on receipt of a draft supplementary judgment referring to it Dr Staker made further submissions in writing as to its effect on this case. I invited any response in writing from Mr Fripp and ordered the case to be listed for further argument. Mr Fripp has filed written submissions and Dr Staker has replied to them. The oral argument was heard on 14 December 2012. This is my final judgment dealing with the remaining issues.[8]Mr Fripp makes a preliminary submission that I should not reopen my draft supplementary judgment. It is well established that the purpose of circulating draft judgments is to ensure that typographical and factual errors are corrected, not for the parties to reopen or reargue the case. This is an exception insofar as I refer to a case on which the parties had not addressed argument. I therefore take account of the written and oral submissions on R (on the application of E) v Secretary of State for the Home Department and have expanded my reasons, although my final conclusion remains the same.[9]Dr Staker’s submission on R (on the application of E) v Secretary of State for the Home Department is that it reflected a different situation, where the decision-maker had not considered whether as a result of historic trafficking the Claimant still required the protection and assistance of the Convention. In this case the decision expressly stated, and in my judgment correctly, that the Claimant was not in need of Convention protection and assistance, whether or not she had been trafficked in the past. He submits that if, as here, it is clear at the Reasonable Grounds stage that the subject is not in need of Convention protection and assistance, there is no need for the Defendant to make a Conclusive Decision at all. Significant resources may be needed to investigate claims of past trafficking, in circumstances where this would have no practical consequence at the time of the decision and would be of no benefit to the person concerned.[10]The starting point is the Convention, which I have found the Defendant adopted in her published policy. i) Article 10(1) requires each Party to provide its competent authorities with trained persons “so that victims can be identified in a procedure duly taking into account the special situation of women and child victims and, in appropriate cases, issued with residence permits under the conditions provided for in Article 14 of the present Convention”. ii) Article 10(2) requires each Party to ensure that “if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence provided for in Article 18 of this Convention has been completed by the competent authorities and shall likewise ensure that the person receives the assistance provided for in Article 12, paragraphs 1 and 2”.[11]This Claimant did not need the assistance in Article 12, but the duty to ensure that she was not removed from the UK until the identification process as victim of a human trafficking offence had been completed is a separate and continuing one. That identification process involves such investigation as the authority considers necessary before a Conclusive Decision is made. That Conclusive Decision may be positive as to victim status, even if the person does not qualify for Convention assistance under Article 12. That interpretation has been accepted by the Defendant in the revised Asylum Process Guidance.[12]The purpose of such a process of identification, even if no Convention assistance is required, is that the Convention is not just aimed at the protection of victims. Article 1(1) reads as follows:
“The purposes of this Convention are: a to prevent and combat trafficking in human beings, while guaranteeing gender equality; b to protect the human rights of the victims of trafficking, design a comprehensive framework for the protection and assistance of victims and witnesses, while guaranteeing gender equality, as well as to ensure effective investigation and prosecution; c to promote international cooperation on action against trafficking in human beings.” a to prevent and combat trafficking in human beings, while guaranteeing gender equality; b to protect the human rights of the victims of trafficking, design a comprehensive framework for the protection and assistance of victims and witnesses, while guaranteeing gender equality, as well as to ensure effective investigation and prosecution; c to promote international cooperation on action against trafficking in human beings.”
[13]Thus the Convention seeks to attack human trafficking by making it a criminal offence in all member states (Article 18) and ensuring that there is international cooperation in prosecuting those found responsible for it. Quite apart from any protection of the victim, there is a Convention interest in identifying her and obtaining any evidence which may be useful in a prosecution.[14]This may involve additional resources, but no more than are reasonable in the particular case to discharge the UK’s international obligations. If the trafficking is so distant, and the victim so unwilling to cooperate, that no further inquiries are likely to be fruitful in identifying the traffickers or their assistants, the Defendant may well make a pragmatic decision to accept the victim’s account without further investigation. The Defendant would then issue a Conclusive Decision which is positive as to past trafficking but decides that no Convention assistance is required. It may be that this is such a case. That process should add little to the resource requirements. In another case, where the victim is willing to provide information about her traffickers, further investigation is both justified and required by the purposes of the Convention.[15]In addition to this there is the duty under Article 16(2) to have regard to the fact that a person is a victim (which I think here includes a past victim) in returning her to another state. That continuing duty on all states who are parties to the Convention is in my judgment compelling.[16]I conclude that the decision in the Claimant’s favour as to whether she has been a victim of trafficking is both important and valuable to her, notwithstanding that it carries no immediate benefits to her in the UK.[17]The relief sought in the Claim Form is that the Reasonable Grounds Decision of 31 July 2009 should be quashed, and for a mandatory order that the Defendant recognise the Claimant as a victim of trafficking. The Amended Grounds ask only that the decisions of 31 July 2009 and 14 December 2009 be quashed. That was also the limit of the relief sought in the Claimant’s detailed skeleton argument for the substantive hearing in April 2012. No question of mandatory relief was raised at the substantive hearing.[18]Since the decision of 14 December 2009 confirmed and amplified the decision of 31 July 2009, and thereby replaced it, the earlier decision no longer stands and there is nothing to quash. As to the later decision of 14 December 2009, for the reasons set out above the Claimant is entitled to an order quashing it, and such an order is not merely academic. I decline to grant any mandatory relief.[19]I should emphasise that my substantive decision in this case related only to a Reasonable Grounds decision. In considering whether relief should be granted, once I had decided that the decision could not be upheld, I have had to look at the framework of the Convention, adopted as part of the Defendant’s published policy. In doing so I have expressed views about the need to make a Conclusive Decision even in a case such as this. I acknowledge that such views are not part of the grounds for my substantive decision, but only issues raised in considering discretionary relief. They have been the subject of late, and largely written, submissions rather than full argument. Whether my views are found to be correct on more detailed examination may have to wait for another challenge, when the issues are central to the case and fully argued.[20]Since the Claimant is entitled to an order quashing the decision of 14 December 2009 she has succeeded to some extent, though she has failed on the second limb of the challenge. As a result the Defendant is not entitled to her costs, but there should be no order for costs, save for detailed Community Legal Service assessment of the Claimant’s publicly funded costs.[21]I therefore quash the Defendant’s decision of 14 December 2009 and make the costs order set out above. As to any appeal, I shall consider any written applications for permission delivered within 7 days of receipt by the parties of this supplementary judgment.