FM, R (on the application of) v Secretary of State for the Home Department [2015] EWHC 844 (Admin)

Case No CO/6034/2014[2015] EWHC 844 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 26 March 2015
Before
PHILIP MOTT QCSitting as a Deputy High Court Judge
Between
THE QUEENClaimantSECRETARY OF STATE FORDefendantTHE HOME DEPARTMENTDefendant
Christopher Buttler (instructed by Deighton Pierce Glynn) for ClaimantChristian Jowett (instructed by Treasury Solicitor) for DefendantHearing Hearing dates: 19 & 20 March 2015
JudgmentPhilip Mott QC :
[1]The Claimant is a victim of trafficking. That was accepted by the Defendant in a Conclusive Grounds decision on 3 October 2014. The same decision concluded that she did not qualify for leave to remain and was liable to removal from the UK. The Claimant challenges that decision, permission having been granted by Rose J on 6 February 2015.[2]The Claimant’s history, as accepted by the Defendant, appears in the consideration minute which lay behind the decision of 3 October 2014. I can summarise it shortly. She was born on 11 June 1987, and is now aged 27. She comes from Ethiopia. She left Ethiopia in 2006, travelling to Sudan and then to Saudi Arabia to work for a Saudi family. Whilst in Saudi Arabia she worked from about 6 am to midnight, 7 days a week. She was told not to leave the house, and did not do so. Her passport was taken from her. She was often hit by her employer, her hair and her clothes were pulled, and she was insulted. She was not allowed to visit a doctor or to go to shops on her own. She was not taken to the doctor on an occasion when she needed medical attention. She was provided with no sanitary protection, and had to steal it from the family’s bathroom. She was not allowed to eat with the family, did not have her own food, and survived on leftovers. She had no social contact with anyone outside the family for which she worked.[3]On 31 January 2009 she travelled to the UK with her employer as a domestic worker on a visa valid until 31 December 2012. The treatment she received did not noticeably change on arrival in the UK. She slept in a room used by the family to store their clothes. She had no privacy as members of the family would come into the room whenever they pleased.[4]As a result of this sustained conduct she became scared of the family, and what they might do to her. After about 6 months in the UK she escaped from her employer, and claimed asylum on 28 July 2009. She was granted Temporary Admission, which was renewed on a number of occasions. However it was not until 17 January 2014 that her case was referred to the national referral mechanism (“NRM”) which deals with potential victims of trafficking. The basis of that referral, by a Home Office official, was the Claimant’s asylum screening interview as long ago as 28 January 2009.[5]Thereafter, a positive Reasonable Grounds decision was issued on 31 January 2014, followed by a negative Conclusive Grounds decision on 19 March 2014. This was challenged in judicial review proceedings in June 2014 which were compromised by a consent order on 5 August 2014 in which the Defendant agreed to reconsider the Conclusive Grounds decision. Meanwhile her asylum claim had been rejected and an appeal dismissed.[6]The reconsideration led to a positive Conclusive Grounds decision on 3 October 2014. This concluded that the Claimant had been trafficked. It continued:
“Although you were found to be trafficked because of the particular circumstances of your case, those circumstances no longer exist and as you do not qualify for leave to remain in the UK you will be liable for removal.”
[7]Those somewhat laconic reasons were followed by a supplementary letter on 12 November 2014 in reply to one from the Claimant’s solicitors challenging the refusal of leave to remain. The supplementary letter stated:
“As you will be aware, there are two avenues by which victims of trafficking may qualify for a period of leave. Your client is not co-operating with an ongoing police investigation, therefore does not qualify in this capacity. The other avenue by which she may qualify for leave is her ‘personal circumstances’. When deciding whether your client’s circumstances were such that she required a period of leave, the Competent Authority had due regard to all of the evidence submitted at the date of the decision. … With regard to [FM]’s personal circumstances, she left her trafficking situation five years ago. She entered the NRM in January 2014. Consideration has been given to any medical or psychological needs she may have as a result of her trafficking experience. It is noted that [FM] was asked during her first interview whether she was receiving any counselling. She indicated that she was not. During her second trafficking interview, during which she was accompanied by a BAWSO support worker, she stated that she was not receiving any counselling but that she communicates with one of the BAWSO counsellors on the phone occasionally. She indicated that she has a social worker. … No post-decision representations have been submitted through the apposite route … Neither [FM]’s BAWSO support workers nor the first responder have contacted the Competent Authority to adduce any additional evidence, nor have they raised concerns that the decision is not in line with published guidance. It is noted that you have not submitted any additional information regarding your client’s personal circumstances.”
[8]Thereafter there was pre-action protocol correspondence, but no further explanation or reconsideration of the case. The Defendant made the point that the Claimant’s solicitors had not submitted further evidence, in particular as to whether she had started receiving counselling or was due to start it.[9]The claim form in these proceedings was filed on 23 December 2014. With it was a witness statement from the Claimant saying that she was willing to undergo counselling.

Provisions against trafficking

[10]The Council of Europe Convention on Action against Trafficking in Human Beings (“CAT”) was signed on 16 May 2005. It was ratified by the UK on 17 December 2008, but has never been directly incorporated into domestic law. Instead, the UK’s international obligations have been implemented by the adoption of procedures and policies by government ministers responsible. The most important of these is the Defendant, who has issued and updated a document now called “Victims of human trafficking – competent authority guidance” (“the Guidance”).[11]The relevance of the CAT in this sort of challenge, and that of the Explanatory Report (“CATER”) which accompanied it, have been considered by the Divisional Court in R (Atamewan) v SSHD [2014] 1 WLR 1959. The following principles are now established: i) Insofar as the Guidance purported to give effect to the terms of the CAT and failed to do so, that would be a justiciable error of law. In general it is not disputed, as I found in the case of R (E) v SSHD [2012] EWHC 1927, that the Defendant has adopted the CAT in her published Guidance. The exception in Atamewan in respect of Article 27 of the CAT no longer applies because of changes in the wording of the Guidance, as set out below, which clearly now purport to give effect to Article 27 of the CAT, as the Defendant accepts. ii) Because the Defendant, and the agencies acting on her behalf, are public authorities for the purposes of the Human Rights Act 1998, they must not do anything that would be contrary to a person’s rights under the European Convention on Human Rights (“ECHR”). One of those rights, under Article 4 of the ECHR, is not to be subjected to slavery. That provision must be read in harmony with the general principles of international law. Those principles include the CAT, which is a more detailed approach to the prevention and relief of slavery by means of trafficking. Thus a failure to comply with the obligation in the CAT is amenable to judicial review by this route. iii) As a result of these two principles it is not disputed on behalf of the Defendant in the present case that I am entitled to look at both the CAT and the CATER when considering the Defendant’s duties under her published Guidance.[12]The structure and purpose of the CAT in relation to assistance for victims is analysed in Atamewan. The following provisions of the CAT and CATER are relevant to the present case: i) The paramount objectives of the CAT are “respect for victims’ rights, protection of victims and action to combat trafficking in human beings” [Preamble]. The purposes include “to protect the human rights of the victims of trafficking, design a comprehensive framework for the protection and assistance of victims … as well as to ensure effective investigation and prosecution” [Article 1(1)(b)]. Two of the main aims of the CAT are “the protection of the rights of trafficked persons and the prosecution of those responsible for trafficking”. Those two aims are related to each other [CATER §57]. ii) The first stage is to identify victims and make a reasonable grounds decision. Thus, “if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings” they must take various steps, including to “ensure that that person receives the assistance provided for in Article 12, paragraphs 1 and 2” [Article 10(2)]. iii) The assistance provided for in Article 12(1) requires the state to “adopt such legislative or other measures as may be necessary to assist victims in their physical, psychological and social recovery”. This includes providing “appropriate and secure accommodation, psychological and material assistance” and “information, in particular as regards their legal rights and the services available to them”. The authorities must make arrangements for assistance measures “while bearing in mind the specific nature of that aim” (i.e. the aim of assisting victims “in their physical, psychological and social recovery”) [CATER §150]. Psychological assistance is needed “to help the victim overcome the trauma they have been through and get back to reintegration into society” [CATER §156]. Information about legal rights and services includes “how the criminal-law system operates” and “should enable victims to evaluate their situation and make an informed choice from the various possibilities open to them” [CATER §160]. iv) When a positive reasonable grounds decision is made, the victim must be given a “recovery and reflection period of at least 30 days”. One of the reasons for this is to enable the victim “to take an informed decision on cooperating with the competent authorities”. The assistance under Article 12 (1) &(2) must continue throughout this period [Article 13(1)]. Article 13 is intended to apply to victims who are illegally present in the country [CATER §172]. “Informed decision” means that the victim “must know about the protection and assistance measures available and the possible judicial proceedings against the traffickers” [CATER §174]. v) Article 14 requires the state to “issue a renewable residence permit to victims” where either “their stay is necessary owing to their personal situation” or “their stay is necessary for the purpose of their co-operation with the competent authorities in investigation or criminal proceedings”. The state may decide not to renew, or even to withdraw, that residence permit in appropriate cases. For the victim to be granted such a residence permit, “either the victim’s personal circumstances must be such that it would be unreasonable to compel them to leave the national territory, or there has to be an investigation or prosecution with the victim co-operating with the authorities.” [CATER §183]. The “personal situation requirement takes in a range of situations, depending on whether it is the victim’s safety, state of health, family situation or some other factor which has to be taken into account.” [CATER §184]. vi) Article 15 requires the state to “ensure that victims have access, as from their first contact with the competent authorities, to information on relevant judicial and administrative proceedings”. The purpose of this Article is to ensure that victims are compensated [CATER §191]. vii) By Article 16, the return of a victim “shall be with due regard for the rights, safety and dignity of that person and for the status of any legal proceedings related to the fact that the person is a victim, and shall preferably be voluntary”. viii) Article 27 provides that “investigations into or prosecution of offences … shall not be dependent upon the report or accusation made by a victim”. Its purpose is “to make it easier for a victim to complain by allowing him or her to lodge the complaint with the competent authorities” [CATER §278]. ix) By Article 29, the state has a responsibility “to ensure co-ordination of the policies and actions of their governments’ departments and other public agencies against trafficking in human beings”.[13]The Guidance in force at the date of the decision under challenge was valid from 24 October 2013. It runs to 115 pages. The following provisions are relevant to this case: i) states in terms that the Guidance “is based on” the CAT. ii) states “You must refer all credible allegations to … your local police force” if the person is naming a trafficker, other victims, a place of exploitation, or providing another piece of key information that may require investigation. It is common ground that the Claimant’s allegations came within this requirement. The Guidance continues “You must do this as soon as the information is known to the Home Office”. iii) sets out the two stage process involving a Reasonable Grounds decision followed by a Conclusive Grounds decision. The reasonable grounds test is one of “I suspect but cannot prove”. If a positive Reasonable Grounds Decision is made, the potential victim must be granted a 45 day reflection and recovery period. iv) places a duty on the decision-maker to “make every effort to secure all available information that could prove useful in establishing if there are reasonable grounds”. v) states that where a positive Reasonable Grounds Decision is made, “you must … grant a 45 day recovery and reflection period by way of temporary admission” and also notify the police (where appropriate). vi) requires staff to gather more information to make a Conclusive Grounds decision. This involves consultation with various agencies, including the police. The Conclusive Grounds decision is made on the balance of probabilities (page 83). vii) deals with the possible extension of the 45 day recovery and reflection period. It requires a 30 day review, and says “By day 30 you must be gathering information to make the conclusive grounds decision. As part of this, you must contact the … investigating police force”. viii) requires staff, before issuing a Conclusive Grounds decision, to telephone the police (if there is a criminal investigation) “to discuss your decision and check if any further information has become available”. ix) provides that a Conclusive Grounds decision must be notified in writing to the police. x) Pages 98 to 99 deal with Discretionary Leave (“DL”) on the grounds of personal circumstances. It states that DL may be appropriate for a victim “if their personal circumstances are compelling. For example, to allow them to finish a course of medical treatment that would not be readily available if they were to return home”. This must be considered in line with the Defendant’s discretionary leave policy. xi) deals with victims who are assisting with police enquiries. It provides that 12 months DL may be granted “where a victim has agreed to cooperate with police enquiries”, but that “the police must make a formal request for them to be granted leave to remain on this basis”. I will consider the proper interpretation of this provision later in this judgment. xii) covers “Reconsidering a decision”. It notes that “a first responder or support provider” may wish to submit additional evidence or raise concerns about the decision. In these circumstances the competent authority must look at whether they wish to reconsider the decision. This is not a formal right of appeal “and the decision should only be reconsidered where there are grounds to do so”.[14]It is common ground that the 45 day recovery and reflection period is protected by the grant (if necessary) of Temporary Admission. The “renewable residence permit” under Article 14 is granted in the UK, where it is merited, by way of DL. The Defendant’s DL policy provides that in trafficking cases a grant of DL should be considered where the victim’s personal circumstances “are so compelling that it is considered appropriate to grant some form of leave”, or where the victim “is cooperating with an ongoing police investigation in relation to their trafficking case and their presence is required for this purpose” [DL policy §2.4].[15]The distinction between Temporary Admission and DL is important. The position of those on Temporary Admission is best described in the words of Sedley LJ in R (MS, AR & FW) v SSHD [2010] INLR 489, at paragraph 2:
“Such people do not have to be detained, but they have to exist in a half-world (Cranston J called it limbo, but theologians have recently decided that there is no such place) in which they have £5 a day to live on, cannot take work, must live where they are required to, have access only to primary healthcare, can obtain no social security benefits or social services assistance and can study only in institutions that require no payment. In these respects, which are determined by law and are not simply discretionary conditions imposed by the Home Office, they may be no worse of than asylum-seekers (which all three of the present appellants initially were) but are markedly worse off than if they had formal leave to remain.”
[16]In relation to victims of trafficking, this situation is alleviated to a small extent because funding is made available for support organisations, but this funding ceases when a Conclusive Grounds decision is made. As a result, this Claimant is in a far worse position than if she had been granted DL.

The challenge to the Conclusive Grounds decision

[17]The Claimant challenges the decision of 3 October 2014, together with the supplementary reasons of 12 November 2014, both in relation to the personal situation/circumstances element and in relation to the police investigation element. The underlying facts are not in dispute.[18]In relation to the Claimant’s personal situation, by the date of the Conclusive Grounds decision the Defendant was in possession of a report from Dr Battersby dated 5 July 2014. Dr Battersby is a consultant general adult psychiatrist, approved under section 12 of the Mental Health Act 1983 and based in Plymouth. She routinely works with victims of trauma, particularly sexual assault, and regularly undertakes medico-legal work with asylum seekers. Her report discloses the following material facts and opinions: i) The Claimant suffers from mental health problems, best described as a complex trauma reaction. This commonly occurs after a prolonged period of abuse. ii) Treatment is available for such a condition. It has three stages. The first focuses on safety, stabilization, and establishing the treatment frame and the therapeutic alliance. The middle stage involves revisiting and reworking the trauma. The last stage involves identity and self-esteem development. The length of treatment is difficult to predict, but is usually a minimum of 6 months and often lasts over a year or 18 months. iii) The most important factor in the prognosis after treatment is a feeling of security. iv) The Claimant has a history of repeat victimization and is at significant risk of re-trafficking. With a supportive package of care she would be less at risk of re-trafficking. If removed from the UK she would be more at risk of re-trafficking. v) At the time of the report, the Claimant had a boyfriend in the UK, also from Eritrea. It was a somewhat precarious relationship as he was either married or getting married. In addition, he shouted at her and got angry very quickly. She was nearly 5 months pregnant (she gave birth to a baby girl on 7 December 2014). The boyfriend did not know this. She intended to keep the baby on her own.[19]The decision letter of 3 October 2014 does not mention Dr Battersby’s report at all. The Conclusive Grounds consideration minute, which lay behind the original decision letter, notes the conclusion of Dr Battersby that the Claimant is suffering from complex trauma reaction, but does not mention the recommendation for treatment. The supplementary reasons of 12 November 2014 rely on the replies in interview that the Claimant was not receiving counselling for the conclusion that her personal circumstances did not justify the grant of DL, without making any reference at all to Dr Battersby’s report.[20]It is correct that the Claimant has not yet started any therapeutic treatment. In her statement in these proceedings dated 22 December 2014, about two weeks after the birth of her baby, she said that she is willing to try the treatment if childcare can be arranged. Dr Battersby, in a letter to the Claimant’s solicitors on 18 December 2014, says that “Pregnancy, childbirth and the post-partum period result in very significant changes in hormone levels that often have profound effects on a woman’s mental state. It would be unusual for a woman to access counselling to address longer-term life events during this time.”[21]In relation to police investigations, it is accepted by the Defendant that no referral was made to the police at any time prior to the Conclusive Grounds decision, and indeed not until 16 February 2015. As a result, no police investigation has yet begun, or at least no contact has been made with the Claimant. The Claimant says, in a statement made on 22 January 2015, that she will cooperate with any police enquiries.[22]The decision letter of 3 October 2014 does not mention police investigations, nor is there any mention of police involvement in the consideration minute. The supplementary reasons of 12 November 2014 say simply that the Claimant “is not co-operating with an ongoing police investigation”, as if the police had been notified, had contacted the Claimant and she had declined to cooperate. Or that it was the responsibility of the Claimant to make a complaint to the police.

The parties’ submissions

[23]Mr Buttler, for the Claimant, makes it clear that his is not merely a reasons challenge, based on a failure to explain the decision. He maintains that the Defendant has fundamentally failed to consider the information she had, or to make proper inquiries into the questions raised by that information, so that even now the decision cannot be justified.[24]As to the personal situation of the Claimant, Mr Buttler submits that the Defendant was aware that she had a diagnosis of complex trauma reaction, that she had a need for therapeutic intervention, that if removed from the UK as she was she was at risk of re-trafficking, and that she was pregnant with a child she intended to keep. This information, he argues, should have given rise to an investigation of why counselling had not started, and whether the Claimant wished to undergo it. Any such inquiry, he submits, would have produced the answers now available, that it would be unusual for anyone to engage with such therapy during pregnancy, and that the Claimant would be willing to try if childcare could be arranged. Since such therapy requires a starting point of safety and stability, it must be at least arguable that it required the grant of DL to be effective. A decision which refused DL without even considering these factors, or making further inquiries to establish whether the argument for DL was compelling, must be unlawful.[25]As to the police investigations, Mr Buttler submits that there has been a serious breach of the positive duty to trigger an investigation by referring the case to the police. In this respect, he says, this case is indistinguishable from Atamewan. He relies on the positive obligation on the state under Article 4 of the ECHR to carry out an effective investigation. For an investigation to be effective, it must be carried out with reasonable promptness and expedition, the state cannot leave it to the victim to lodge a complaint, and the victim must be involved in the procedure to the extent necessary to safeguard her legitimate interests (Rantsev v Cyprus & Russia (2010) 51 EHRR 1, at paragraphs 232, 288). As a result, he submits, the decision cannot stand for three reasons: firstly because an error of law renders unlawful any decision directly affected by it (Lumba v SSHD [2012] 1 AC 245); secondly because it would be conspicuously unfair to allow the Defendant to rely on a state of affairs which was a consequence of its own omission (whether or not that amounted to an error of law); and thirdly because the decision failed to take into account the material consideration that no referral to the police had been made, or took into account the irrelevant consideration that the Claimant was not then cooperating with a police investigation when none had been initiated by a referral.[26]Mr Buttler also made submissions in relation to the position of the Claimant’s child, unborn at the time of the challenged decision, and the application of section 55 of the Borders, Citizenship & Immigration Act 2009 (“BCIA”). I will deal with those later in this judgment.[27]Mr Jowett, for the Defendant, submits that the Conclusive Grounds decision was made at the right time on the correct material, but says that this decision could and would be reviewed as further information became available, and in the meantime the Claimant would continue to enjoy her Temporary Admission.[28]In relation to the Claimant’s personal situation, Mr Jowett points to the answers in interview relied upon in the decision letters as showing that no counselling had yet started. He relies on the absence of any mention in correspondence prior to the issue of proceedings of the Claimant’s willingness, let alone any desire, to undergo such counselling as had been recommended by Dr Battersby. In a case where the Claimant was represented by solicitors, he submits that the Defendant had made sufficient inquiries and there was a specific mechanism for the provision of additional information following a Conclusive Grounds decision which was not used. It was both lawful and reasonable for the Defendant to proceed on the basis that the Claimant’s representatives had furnished her with all relevant information.[29]As to the police investigation, Mr Jowett accepts that there was a failure to follow the policy in the Guidance, but the failure was adequately remedied as soon as it was appreciated. The Defendant will continue the Claimant’s Temporary Admission pending a police response. When that is received, she will make a DL decision. Until that stage is reached, it is not possible to know whether the Claimant’s continued presence in the UK is necessary on this ground. He does not submit that the requirement on page 101 of the Guidance that the police make a formal request for DL to be granted is a condition precedent to the grant of such leave (despite those words appearing in the Detailed Grounds of Defence). Instead, the view of the police is an important factor in the assessment of necessity, and will usually be determinative, so that a proper DL decision cannot be made before that view is known.

Anxious scrutiny

[30]In relation to the standard of review, Mr Buttler submits that the test is one of “anxious scrutiny”, which applies whenever fundamental human rights are in issue. He points to the fundamental and non-derogable nature of Article 4 of the ECHR, and relies on the European Court decision in Rantsev. Anxious scrutiny applies to the qualified Article 8 rights on a fresh claim for leave to remain, so even more it should apply to the absolute right set out in Article 4 of the ECHR. The practical consequences of the challenged decision are serious, involving a liability to detention and removal from the UK, and therefore inability to participate in any police investigation or to access the counselling she has been assessed as needing. He submits that the practical effect of the anxious scrutiny test is “the need for decisions to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account” (R (YH) v SSHD [2010] 4 All ER 448, at paragraph 24). Whether a consideration is relevant to the decision is a matter of law (R (Sainsbury’s Supermarkets Ltd) v Wolverhampton CC [2011] 1 AC 437, at paragraph 70).[31]Mr Jowett does not accept that this is an “anxious scrutiny” case, but even if it is the Defendant has complied with it. He submits that the standard Wednesbury test applies, though bearing in mind that “The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable” (R (Q) v SSHD [2004] QB 36, at paragraph 115). This is, he says, neither such a serious decision as was contemplated in R (Yogathas) v SSHD [2003] 1 AC 920 (paragraphs 9 and 58), nor is it ‘final’ because the Claimant can still make fresh claim submissions under Part 12 of the Immigration Rules, when anxious scrutiny would apply.[32]If anxious scrutiny does apply, it is accepted on both sides that as a result the Defendant would bear the burden of justifying the decision; the review is still one for error of law, not correctness; and anxious scrutiny “does not mean that the court should strive by tortuous mental gymnastics to find error in the decision when in truth there has been none. The concern of the court ought to be substance not semantics” (R (Sarkisian) v IAT [2001] EWHC Admin 486, at paragraph 18).[33]Any decision by a public body which affects the rights of an individual now is expected to include reasons. The extent of the reasons required will vary according to the circumstances. In some cases, it may be enough simply to say that a possible basis of claim has been considered and rejected (an example of this in a different context is the consideration of Article 8 claims outside the Immigration Rules, see R (Nagre) v SSHD [2013] EWHC 720 (Admin), at paragraph 30). In others, very much more detailed justification and explanation will be expected, especially where the effect of the decision is great.[34]The concept of ‘burden of proof’ in judicial review cases is not always apt, since witnesses generally are not heard and challenged, issues of credibility of witnesses do not generally arise, and the material is accepted at its highest in favour of the claimant. If a better term is ‘burden of justification’ or ‘burden of explanation’, the public body will always bear some burden because some reasons are always expected. The weight of that burden will be variable according to the circumstances, as appears in the quotation from Q set out above. At its highest, the term “anxious scrutiny” has become a shorthand description for the much greater detail of reasoning described in YH.[35]In my judgment, for the reasons put forward by Mr Buttler, this is an anxious scrutiny case, but the conclusions which I reach below would be the same on the approach submitted as correct by Mr Jowett.

Police investigations

[36]I deal first with the absence of any police investigation, as the failure of the Defendant in this respect is most clear and stark. The process of involving the police should have started as soon as there was a credible allegation of trafficking. On one view this was as early as 28 January 2009, when the asylum screening interview took place. At the latest it was when a positive Reasonable Grounds decision was made on 31 January 2014. The referral to the police was not made then (or at least there is no evidence that it was, and the police have no record of it). Thereafter there should have been consultation with the police as part of the information-gathering for the Conclusive Grounds decision. There should have been a 30 day review, as part of which the police should have been contacted for information. Before issuing a Conclusive Grounds decision the police should have been telephoned to check whether further information was available. The Conclusive Grounds decision should have been notified to the police. None of this happened. If it had, the initial failure to refer would have been discovered much earlier.[37]In addition, the CAT requires information to be provided to the victim so that an informed decision about cooperation can be made. Mr Jowett said he could not point to any information being given to this Claimant about how the criminal law system operates in the UK. As a result, she has been deprived of the information to enable her to make an informed choice about whether to cooperate with police inquiries.[38]If the Defendant had made a police referral in good time, as was her duty, the position at the time of the Conclusive Grounds decision would have been quite different. The police would have been bound to initiate an investigation. Almost inevitably the first stage would have been to approach the Claimant to seek her cooperation. The officers involved should have had special training in dealing with victims of trafficking, just as officers nowadays are trained in dealing with victims of sexual offences. They would have explained to the Claimant what was involved in her cooperation, what protection could be given to her, and the special measures available to her to make giving evidence in court easier. By the time of the Conclusive Grounds decision it would have been apparent whether the Claimant was willing to cooperate with a police investigation, and whether for the moment her continued presence in the UK was required to make that investigation, and any subsequent prosecution, effective.[39]In Atamewan the referral of the claimant’s case to the NRM was prompt but no police referral was made. She was refused DL on trafficking grounds and was removed to Nigeria. Her solicitors started judicial review proceedings and contacted the police. Their reaction was that it would be difficult to start any investigation as she was out of the country. The Divisional Court concluded that, even if the Guidance in its then form were lawful, the decision was based on an assumption that it was for the claimant to make a complaint to the police, contrary to Article 27 of the CAT. In that case there was a further breach in that the claimant had been removed at the reasonable grounds stage without being given the recovery and reflection period, but the court decided (paragraph 87) that:
“… a decision which is based, in part, on a failure to fulfil the positive obligation not to remove someone who has passed the “reasonable grounds” test and which decision is also contrary to the negative obligation set out in article 27(1) of the CAT cannot be regarded as lawful.”
[40]In O v Commissioner of Police for the Metropolis [2011] HRLR 643 Wyn Williams J decided that the police were under a duty to carry out an effective investigation once a credible account of a breach of Article 4 of the ECHR had been brought to their attention, even without a complaint from or on behalf of the victim. This analysis was accepted in Atamewan, and formed a further basis for saying that the decision to refuse DL was unlawful (paragraphs 89-91).[41]It seems to me that Atemewan is directly applicable. The challenged decision here was based, in part, on a failure to fulfil the positive obligation to initiate police investigations, and implicitly relies instead on an argument which is contrary to the negative obligation in Article 27 of the CAT. Such a decision cannot be regarded as lawful. I accept that the failure to make a police referral undermines the decision in any one of the three ways set out in Mr Buttler’s submissions.[42]The Detailed Grounds of Defence, in paragraph 23, described the challenge on the police investigations ground as ‘premature’. Mr Jowett accepted in argument that his submissions meant the challenged decision was premature in concluding that the Claimant did not qualify for DL. In effect he was submitting that the trafficking element of the decision was correct, but that the DL element should be treated as withdrawn and awaiting further information, at least in relation to the police investigations.[43]I do not consider that position to be satisfactory or tenable. The Guidance clearly contemplates that the police referral may not take place until the Reasonable Grounds decision is made. Within the next 45 days until the Conclusive Grounds decision, it is expected that police inquiries will have progressed at least to the extent of knowing whether the victim needs to be allowed to remain in the UK for the purpose of cooperating with the investigation. If at that stage the victim is still needed in the UK, she should be granted DL of at least 12 months and one day, in line with the DL policy. That may be curtailed at a later date if her presence is no longer required. There is provision for an extension of the 45 day period, but not for the purpose of allowing the police further time to make inquiries.[44]It should not be forgotten that in this case the Reasonable Grounds decision was as long ago as 31 January 2014. Over a year has elapsed since then. The police referral in fact took place on 16 February 2015. 45 days thereafter is 2 April 2015. It is surprising that no contact has yet been made by police with the Claimant, although it may be that these proceedings have delayed any such approach. Certainly there is no update from the Defendant. It is wholly unreasonable for no decision to have been made on DL, and for the Claimant to have to remain on Temporary Admission with all the disadvantages that entails.[45]For these reasons the challenge to the refusal of DL on this ground, or the delay in finally deciding on DL as Mr Jowett prefers to describe it, must succeed.

Personal situation

[46]The duty of the state in relation to psychological needs is clear. Once a potential victim of trafficking is identified, Article 12(1) of CAT requires the state to assist in his or her “physical, psychological and social recovery”. The Guidance makes it clear that DL should be granted to allow a victim to finish a course of treatment that would not be readily available in his or her home country.[47]In this case medical treatment was recommended. That recommendation, coming from an expert, must have been a material consideration, and begs a number of questions. Why has the treatment not started? Is that connected with the Claimant’s pregnancy? Will she agree to such treatment? When can it start? Is it available in Ethiopia? Could it be conducted there with the same prospect of success?[48]Mr Jowett accepts that the test here is as set out in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, at page 1065B, namely: “did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?”.[49]In this case the Defendant appears not to have considered Dr Battersby’s recommendation at all, and certainly made no further inquiries. This is despite the duty under Article 12(1) of the CAT to provide appropriate psychological assistance to help the victim overcome the trauma that she had been through.[50]On any basis it seems to me that the decision, and the supplementary reasons, both fail dismally in considering a vital element of evidence about the Claimant’s psychological condition. Whatever might be the result of a proper consideration, there is no indication that even now it has been given to this aspect of the Claimant’s case. As a result, that part of the decision cannot be supported.[51]In my judgment it is not open to the Defendant to justify the inaction of her staff by saying that the Claimant was legally represented. Victims of trafficking will generally not have representation, at least until after the conclusive grounds stage. I accept that it is a little surprising that in the pre-action correspondence the Claimant’s solicitors never said expressly that the Claimant wished to undergo counselling, but not until after her child was born. There may be many reasons for this, other than the inference that at that stage the Claimant had declined such therapy. In any event, the Guidance quite clearly imposes a duty on the Defendant’s staff to make positive inquiries.

The welfare of the child

[52]Section 55 of the BCIA requires the Defendant, when exercising any function in relation to immigration, to have regard to the need to safeguard and promote the welfare of children who are in the UK. Mr Buttler submits that this was applicable to the challenged decision because the child would inevitably be born before the Claimant was removed from the UK. He further submits that the Defendant should have made inquiries about the father of the child. It may well be that the child is entitled to British citizenship through her father.[53]I do not need to decide this argument in the light of my findings, but there are a number of difficulties which arise: i) The child was not born at the time of the challenged decision, so that section 55 did not directly apply. ii) If it did apply, this was clearly a relevant decision, but the welfare of a child as young as this would almost always require that she stay with her mother. All things being equal, she might also benefit from being able to stay in the UK, but if the mother has no right to remain other things are not equal (see Zoumbas v SSHD [2013] UKSC 74, at paragraph 24).[54]The welfare of the child in her own right would be relevant to an Article 8 ECHR decision, but it is doubtful whether it would be directly relevant to the trafficking decision on DL. The paramount objectives and purposes of the CAT relate to the victim’s rights, not those of her family. Article 12 relates to the specific aims of assisting victims in their physical, psychological and social recovery, and assistance measures should bear that in mind. Article 14 refers to the victim’s “personal situation”, and CATER and the Guidance refer to “personal circumstances”.[55]Mr Buttler, in a supplementary written submission, argues for a broad interpretation of “personal situation”. He puts forward three possibilities: a narrow reading, that the personal circumstances must be consequential to the trafficking, such as the complex trauma reaction here; an intermediate reading, that the circumstances need not be consequential to the trafficking, but must be personal, such as pregnancy; and a broad reading, that personal circumstances include factors closely related to the individual, such as the situation of close family members, which will include the classic Article 8 ECHR factors.[56]My provisional view is that the situation or circumstances must be personal, and also must bear some relationship to the individual’s status as a victim of trafficking. I say this for a number of reasons: i) The whole purpose of the CAT is to give particular protection to victims of trafficking, which may well go beyond what is available to those who are not victims. ii) Article 14(5) specifically provides that the grant of a renewable residence permit shall be without prejudice to the right to seek and enjoy asylum. iii) Article 40 provides that the CAT shall not affect the rights and obligations derived from other international instruments, which must include the provisions of Article 8 of the ECHR.[57]I can readily accept that there may be cases where a pregnancy, or the presence of a young child, will affect the DL decision in a trafficking case because it also affects her status as a victim of trafficking. For example, pregnancy may delay the start of counselling, or require longer for that to be completed; there may be expert evidence that the victim needs to bring up her child in a secure place, to avoid fears for the child’s safety reviving her memories of her trafficking and thereby worsening her psychological state. In such cases the existence of the pregnancy or child will be important, but in the context of the trafficking provisions it will be because of the effect on the victim’s welfare and rights.[58]I make no comment on this in relation to the present case, save insofar as it is relevant to the fact that counselling has not yet started, which I have dealt with above.[59]It is of course important that the practical separation of consideration of trafficking claims and Article 8 ECHR claims should not lead to a victim falling between two stools. In theory this should not happen, because all the personal circumstances relevant to the trafficking claim will also be relevant to the Article 8 claim, and the fact that they are not sufficient to lead to a grant of DL on the basis of trafficking should not lead to them being ignored or given less weight in the Article 8 claim. The consideration, rules and thresholds are different.

Remedies

[60]It follows from what I have found that the decision not to grant DL on trafficking grounds must be quashed. That leaves intact the conclusive decision that the Claimant has been trafficked, and requires a swift fresh decision from the Defendant on whether to grant DL.[61]In addition the Claimant seeks a declaration that her rights under Article 4 of the ECHR have been breached. Mr Jowett resists this on the grounds that the Defendant has acknowledged her failure to make a police referral and is taking steps to remedy it.[62]In my judgment this is not enough to amount to just satisfaction. The delay in making the referral was well over a year. It did not immediately follow the challenge which was clearly set out in the Grounds served with the Claim Form on 23 December 2014. It did not occur until a month after service of the Acknowledgement of Service on 16 January 2015, which wrongly claimed that a referral had been made on 31 October 2014 but not actioned. There has never been an express concession of a breach of the Defendant’s duties under Article 4 of the ECHR.[63]I note that a declaration was granted in Atamewan and in O v Metropolitan Police Commissioner. In my judgment this case is in the same category as those. I do not accept Mr Jowett’s submission that these were far more significant breaches of Article 4. I therefore grant a declaration as sought.[64]I will invite the parties to agree a form of order, and to agree any issues of costs if possible. Otherwise costs may be dealt with on written submissions in the usual way.

Cited in 10 later judgments

and 1 more case