PK (Ghana), R (On the Application Of) v The Secretary of State for the Home Department

The Council of Europe Convention on Action against Trafficking in Human Beings 2005 (CETS No 197) (to which I shall refer in this judgment as “the Trafficking Convention”, or just “the Convention”) does not give a foreign national an automatic right to remain in a particular country by virtue of being a victim of trafficking alone; but it does require a state to grant such a victim a residence permit where the competent authority in that state considers that that person’s stay in the country is necessary owing to his or her personal situation. The short point in this appeal is whether the policy documents published by the Secretary of State give effect to that obligation. Picken J held that they do. The Appellant contends that he was wrong.

Before us, Martin Westgate QC and Catherine Meredith appeared for the Appellant, and Kerry Bretherton QC for the Secretary of State. At the outset, I thank them for their respective contributions to the debate.

Article 4 of the European Convention on Human Rights (“the ECHR”) provides that no one shall be held in slavery or servitude, and no one shall be required to perform forced or compulsory labour.

This is supplemented by a number of other international instruments, most notably the Trafficking Convention, signed at Warsaw on 16 May 2005. It was ratified by the United Kingdom on 17 December 2008, and came into force in respect of the United Kingdom on 1 April 2009. There has been no national legislation to give effect to those parts of the Convention with which this appeal is concerned.

Accompanied by an Explanatory Report also dated 16 May 2005 (“the Explanatory Report”), the Convention is intended to be a comprehensive legal instrument focused not only on the prevention of trafficking and the prosecution of traffickers, but also on the protection of victims of trafficking. Thus, the Preamble recognises that “protection of victims” is a “paramount objective” of the Convention; and Article 1(b) includes as a particular purpose of the Convention, not only to protect the human rights of the victims of trafficking, but to “design a comprehensive framework for the protection and assistance of victims…”.

“Measures to protect and promote the rights of victims…” are dealt with in Chapter III of the Convention. Article 10 makes provision for “Identification of the victims”.

Article 10(1) requires each party to provide its competent authorities with persons who are trained in, amongst other things, identifying and protecting victims, so that victims can be identified and, “in appropriate cases”, issued with residence permits under the conditions provided for in Article 14.

Article 10(2) requires each Party to the Convention to:

So far as relevant to this appeal, Article 12 provides as follows:

Article 13 introduces a “Recovery and reflection period”:

Article 14(1), headed “Residence permit”, is the key provision for the purposes of this appeal. It provides:

The Explanatory Note says of Article 14:

Article 16 deals with “Repatriation and return of victims”. Article 16(2) provides:

Article 40(4) provides that nothing in the Trafficking Convention affects other rights under international law, including those under the 1951 Refugee Convention. Indeed, Article 14(5) expressly provides that the “granting of a permit according to [Article 14] shall be without prejudice to the right to seek and enjoy asylum”.

As I have already indicated, the United Kingdom has not enacted any national legislation to give legal effect to the material parts of the Trafficking Convention. It has sought to satisfy the obligations imposed upon it by the Convention through executive policy, notably the National Referral Mechanism (“the NRM”). This was established on 1 April 2009, operating on a non-statutory basis under guidance issued by the Secretary of State.

Under the NRM, if one of the designated first-responders (which include law enforcement agencies and various non-governmental organisations and charities) suspects someone of having been the victim of human trafficking it can make a referral to the relevant competent authority, namely the UK Human Trafficking Centre within the National Crime Agency, or, for foreign nationals, the Home Office (Footnote: ¹). The competent authority makes an initial decision on whether there are reasonable grounds for believing that the individual is a victim of trafficking, within a target time of five days. If that decision is positive then the person receives the assistance that Article 12(1) and (2) of the Trafficking Convention requires. At the end of a target period of 45 days – which is also the period fixed by the Secretary of State for the purposes of Article 13(1) of the Convention (see paragraph 10 above) – the Secretary of State makes a conclusive decision as to whether the person was trafficked.

A conclusive decision that the person was trafficked does not automatically lead to a grant of leave to remain. Guidance upon discretionary leave in these circumstances is found in several policy documents issued by the Secretary of State, which are linked and, so far as material, consistent with each other.

The version of “Victims of human trafficking – competent authority guidance” applicable at the relevant time (Version 1.0) (24 October 2013) (“the CAG”) provided at page 98 (under the heading “Personal circumstances”):

As I understand it, the “related link” to which reference was made was to the Asylum Policy Instruction on Discretionary Leave (Version 6.0) (24 June 2013) (“the API”). Paragraph 2.4 dealt with “Trafficking cases”; and, in respect of personal circumstances, it provided:

This judgment will refer to the policy documents applicable at the relevant time. There have been several amendments to those documents since; but, we are told, none that affects the substance of the guidance in issue in this appeal.

The Secretary of State maintains that the formulation in this guidance, that a victim of trafficking shall be granted discretionary leave if their personal circumstances are compelling (which I shall call “the compelling personal circumstances criterion”) is consistent with, and properly reflects, the requirement in Article 14(1)(a) that a residence permit shall be granted to a person if “their stay is necessary owing to their personal situation”.

On any view, the Appellant’s story of being the victim of human trafficking is a terrible one. However, for the purposes of this appeal, the factual background is uncontentious, and I can deal with it briefly.

The Appellant is a Ghanaian national, born in Ghana on 3 February 1978. His mother died when he was aged three, and he was subsequently sold by his birth family to a couple in the north of Ghana whom he knew as “uncle” and “auntie”. He went to school until he was five, and then worked without pay, as a street seller, on cocoa plantations and fishing. He was beaten, and suffered sexual abuse. The Appellant got away from “uncle” and “auntie” with the help of someone he met at the cocoa plantation where he worked, but he merely fell under the control of another person. He continued to be abused, and was the subject of rituals and threats as a means of instilling fear into him and thus controlling him.

In April 2003, when the Appellant was 25 years old, traffickers obtained a passport and travel documents for him, and, on 4 September 2003, he entered the United Kingdom ostensibly as a student migrant; and he obtained leave to remain as a student until 31 May 2007. However, he never studied. He was initially taken to a house in Luton, where his passport was taken from him. He was detained and taken to work as forced labour in a warehouse for 14-15 hours per day. He was subject to mental and verbal abuse, and given limited amounts of food. After about three years, with assistance, the Appellant escaped from the individuals who held him, but, initially, only to be forced to work as a male escort by someone else.

He finally escaped to London, free from traffickers, in early 2007 when he was 29 years old. He found a job as a cleaner. He entered into a relationship with a woman, and they had a child together.

On 7 June 2007, his leave to remain as a student having just expired, the Appellant applied for an EEA Registration Certificate. That and further applications for leave to remain were unsuccessful. In October 2010, the Appellant was convicted of knowingly possessing improperly obtained identity documents, and he was sentenced to 15 months’ imprisonment. Upon release, he was from time-to-time detained with a view to removal and then bailed. He made several applications for judicial review of various adverse immigrations decisions, none of which met with success.

In July 2013, the Secretary of State took further steps to remove the Appellant, and he was again detained pending removal. However, whilst in detention, the Appellant came to the attention of Detention Action, who considered he exhibited various indicators of trafficking, and they referred him to the Salvation Army, which, in turn, referred him to the Secretary of State as the competent authority.

The Appellant was referred to the NRM; and, on 28 August 2013, the Secretary of State determined that there were reasonable grounds for believing that he was a victim of trafficking. On 10 October 2013, the Secretary of State wrote to the Appellant’s solicitors saying that she had concluded that he had indeed been trafficked; but, the letter went on:

The Appellant challenged that decision not to grant him discretionary leave to remain. The Secretary of State responded to a pre-action protocol letter by refusing to change her decision, and sending a notice of removal directions. On 4 November 2013, the Appellant commenced a claim for judicial review; and, the following day, Kenneth Parker J granted an injunction prohibiting removal. Following service of the Appellant’s evidence (including some medical records, and a psychiatric report prepared by Dr Grant-Peterkin dated 16 January 2014), and the grant of permission to proceed by Lord Carlile of Berriew QC sitting as a Deputy High Court Judge on 1 April 2014, the Secretary of State agreed to reconsider the Appellant’s application for discretionary leave to remain.

However, in a letter dated 16 January 2015, a decision-maker on behalf of the Secretary of State once more refused that application. The letter, true to the Secretary of State’s guidance to which I have referred, set out the test the decision-maker had applied. Under the heading “Personal circumstances”, he said:

The letter set out the gist of Dr Grant-Peterkin’s report, namely that the Appellant suffered from several medical conditions (including epilepsy, post-traumatic stress disorder, depression and psychosis), for which he was receiving treatment. The decision-maker accepted that evidence; but, he continued (at paragraph 14):

The letter concluded (at paragraph 18):

Matters having moved on since the issue of the claim, it was effectively that decision which was challenged at the substantive hearing before Picken J.

It was common ground before Picken J that the Secretary of State’s policy guidance was intended to, and purported to, give effect to the Trafficking Convention; and that, if it failed to give effect to the Convention, then that would be a justiciable error of law. Before us, after some consideration and after taking instructions, Miss Bretherton, who also appeared for the Secretary of State below, confirmed that concession. It was and is also uncontentious that the concept of “residence permit” in the Convention is met in this jurisdiction by the grant of discretionary leave.

However, the Appellant contended that the formulation in the guidance – that discretionary leave should be granted only if the individual’s personal circumstances were “compelling” or “so compelling” – failed properly to reflect Article 14(1)(a) of the Convention, and was thus unlawful.

Picken J did not accept that submission: in [124] of his judgment, he held that the Secretary of State’s guidance was consistent with Article 14(1)(a). In coming to that conclusion, he noted that there was nothing in Article 14(1)(a) which prevented or restricted the competent authority from applying such a test, that being emphasised by the wording of the provision which requires discretionary leave to be granted to persons only when the competent authority “considers that their stay is necessary” (emphasis added). The compelling personal circumstances criterion appeared to him to be a recognition of paragraph 183 of the Explanatory Report, which referred to a person’s personal circumstances being “such that it would be unreasonable to compel them to leave the national territory”. He concluded that, as he saw it:

The grounds of challenge before Picken J were many and varied. He dealt with each of them (including the ground referred to above), in a lengthy and impressively careful and comprehensive judgment. He found none of them was made good, and he dismissed the claim.

The Appellant appealed to this court on several grounds. On 21 September 2016, Bean LJ refused permission to appeal on all grounds save one, namely that, in adopting the compelling personal circumstances criterion, the Secretary of State’s guidance was unlawful in that it did not properly reflect Article 14(1)(a) of the Trafficking Convention. On 28 February 2017, Davis LJ refused the Appellant’s renewed application for permission to appeal on the other grounds.

We are thus concerned with only one, narrow ground of appeal, namely that, in adopting the compelling personal circumstances criterion, the Secretary of State’s guidance fails properly to reflect Article 14(1)(a) of the Trafficking Convention. In relation to that ground, I am persuaded that, unfortunately, Picken J fell into error. In concluding that the guidance does not properly reflect the Convention, I have particularly taken into account the following.

It is uncontroversial that the grant of discretionary leave is the equivalent of “issuing a renewable residence permit” as provided by the Convention. Furthermore, Mr Westgate does not suggest that “personal circumstances” as used in the guidance differs from “personal situation” as used in Article 14(1)(a) of the Convention. The only issue is whether the compelling personal circumstances criterion properly reflects the requirement in Article 14(1)(a) that the individual’s stay in the United Kingdom is “necessary owing to their personal situation” (emphasis added).

The Secretary of State, through Miss Bretherton, contends that it does. Miss Bretherton submitted that, in Article 14(1)(a), there are no restrictions upon the concept of “necessary”, and thus, the Convention gives the Secretary of State as competent authority discretion which is both broad and untrammelled or open-ended. That is underscored by the fact that Article 14(1)(a) refers, not to an absolute requirement, but only that the competent authority “considers that their stay is necessary…”, a matter that Picken J found to be of some importance (see paragraph 36 above). In the exercise of that discretion, the Secretary of State is entitled to have a policy that the discretion will only be exercised in favour of the victim of trafficking if there are compelling personal circumstances in his or her case.

However, I cannot accept the proposition that Article 14(1)(a) was intended to (or, construed objectively, does) give the Secretary of State an open-ended discretion.

If it were an open-ended discretion, Article 14(1)(a) would be otiose, because the state always has a residual discretion to grant a foreign citizen the right to reside. It is a tenet of construction that words are intended to have some meaning, and a substantive provision should not be construed in such a way that it is empty. Article 14(1)(a) is clearly not intended to be a provision included for the avoidance of doubt. Indeed, Miss Bretherton did not suggest that was the case. It is intended to have some substantive content. If it is “necessary” (whatever that may mean), then the affected person will have the right to discretionary leave, and thus the right to remain in the United Kingdom, irrespective of his or her immigration status or other rights. Where an individual satisfies the criteria of Article 14(1)(a), he or she is granted a new right by the Convention.

“Necessary”, in this context, means required to achieve a desired purpose, effect or result. In Article 14(1)(b), the purpose for which it is necessary for a person to stay in the country is express: the competent authority has to consider that the person staying in the country “is necessary for the purpose of their cooperation with the competent authorities in investigation or criminal proceedings”. In Article 14(1)(a), the purpose is not express: but the provision is deep within the Trafficking Convention which (as Miss Bretherton rightly accepted) must be construed purposively (Footnote: ²). Thus, “necessary” in Article 14(1)(a) has to be seen through the prism of the objectives of the Convention: and the competent authority has to consider whether the person staying in the country is necessary in the light of, and with a view to achieving, those objectives.

In respect of the relevant objectives of the Trafficking Convention, Mr Westgate submitted that Article 12 informs the correct construction of Article 14(1)(a); but, in my view, any assistance Article 12 can give is, at best, minimal and indirect. Article 12 sets out additional obligations imposed upon the state – and, reciprocally, additional rights that attach to the victim of trafficking – at various stages of the process; but it does not purport to prescribe or even inform when those stages arise, as does Article 14.

Articles 10(2) and 13(2) (quoted above: see paragraphs 8 and 10) make clear that the rights set out in Article 12(1) and (2) are triggered by a reasonable grounds decision, and are maintained until at least the end of the recovery and reflection period. Article 12(1) concerns steps that a state is required to make “to assist victims in their physical, psychological and social recovery”. Recovery is an important form of relief for a trafficked person, involving medical and/or psychological care, and/or legal and/or social services (see EK (Article 4 ECHR: Anti-Trafficking Convention) Tanzania [2013] UKUT 313 at [46], and the international documents there referred to). However, Article 13 of the Convention, which deals with recovery, curiously requires the recovery period to be of no less than 30 days – for the United Kingdom, the Secretary of State has determined the period shall be 45 days – and that “such a period shall be sufficient for the person concerned to recover and escape the influence of traffickers and/or to take an informed decision on cooperating with the competent authorities” (emphasis added). But, as agreed between Mr Westgate and Miss Bretherton, looking at the Convention as a whole, it seems clear that, if a conclusive decision is made, the state’s obligations under Article 12, once arisen, continue, irrespective of any other rights they might have, unless and until the victim is returned to another state.

Similarly, the rights in Article 12(3) and (4) are triggered as soon as the victim is “lawfully resident” in the country, which includes where he or she has been granted discretionary leave. Again, those rights, once arisen, continue, irrespective of any other rights they might have, unless and until the victim is returned to another state.

Therefore, it is Article 14(1) which prescribes when a state is required to allow a victim of trafficking lawfully to reside in its national boundaries. I accept, of course, that “personal circumstances” is a wide concept and wide enough to include the consequences of having been trafficked; but there is no additional obligation, outside Article 14, to allow a victim to reside or continue to reside to enable his or her full recovery. Article 12 does not impose such an obligation: it merely prescribes rights that a victim of trafficking has whilst in the country. Indeed, Article 14(3) makes expressly clear that the withdrawal of any residence permit is dependent upon the national law of the relevant Party (and not obligations imposed by international law, such as the Convention itself); and Article 16(2) similarly provides that returns are to be effected simply “with due regard for the rights, safety and dignity of that person”. Consequently, I do not consider that Article 12 is of any real assistance in construing Article 14(1)(a).

However, Mr Westgate had a more fundamental submission, which in my view is of very much greater force, namely that the Secretary of State’s policy guidance documents to which I have referred do not reflect Article 14(1)(a), because they fail to engage with the relevant Convention criteria at all. Indeed, I consider this submission made good.

Article 14(1)(a) of the Convention requires the identification of the individual’s relevant personal circumstances, and then an assessment by the competent authority of whether, as a result of those circumstances and in pursuance of the objectives of the Convention, it is necessary to allow that person to remain in the United Kingdom. Leaving aside the Convention purposes of facilitating the investigation of criminal proceedings and/or a civil claim by the victim (neither of which apply in the Appellant’s case), the only relevant objective of the Convention is the protection and assistance of victims of trafficking. As I have described, this is one of the primary objectives of the Convention, as expressed in the Preamble and Article 1 (see paragraph 5 above). Whether the Appellant’s personal circumstances were such as to make it necessary for him to stay in the United Kingdom could only be assessed by reference to that objective.

However, the Secretary of State’s guidance is entirely silent as to the purpose for which it must be necessary for the victim to remain. That is understandable if the Secretary of State shares the view set out in Miss Bretherton’s submissions that Article 14(1)(a) gives the competent authority an open-ended discretion. However, in my view it is fatal if, as I consider, the provision does not give an open-ended discretion, but rather requires an assessment of whether it is necessary for the purposes of protection and assistance of the victim of trafficking (or one of the other objectives of the Convention) to allow him to remain in the country. In this case, the Secretary of State’s guidance neither requires nor prompts any such engagement. As a result, in my view, it does not reflect the requirements of Article 14(1)(a), and is unlawful.

As a second strand of argument, Mr Westgate submitted that, if and insofar as the guidance does engage with the Article 14(1)(a) criteria, it imposes too high a threshold, in that it requires the individual’s personal circumstances to be “compelling” or “so compelling” that it is considered that discretionary leave should be granted.

I see the force in this criticism too, although in my view this argument is in substance another manifestation of the failure of the guidance to engage with the purposes of the Convention.

Like “necessary”, something cannot be “compelling” in this context without reference, express or implied, to the object it tends to pursue Even if the Secretary of State’s policy guidance identified that object – which, as I have indicated, it singularly fails to do – and even though “compelling” does not necessarily have the etymological implication of a particularly high threshold, it is often used in the legal sense to convey that the relevant threshold is high, and will be only exceptionally and rarely met. For example, the threshold for treatment being “inhuman or degrading” for the purposes of Article 3 of the ECHR is notoriously high. In medical cases – where it is said that removal of an individual from the United Kingdom to another country would result in a breach of Article 3 of the ECHR because medical facilities that he needs are not available in that country – it is said that, to avoid removal, that person must show that the circumstances are “very exceptional”. The test, derived from European authorities, was set out by Lord Hope of Craighead in N v Secretary of State for the Home Department[2005] UKHL 31; [2005] 2 AC 296 at [50], as follows:

Miss Bretherton’s submission that that was not intended to be the connotation in the policy guidance documents here (e.g. in paragraph 2.4 of the API, quoted at paragraph 18 above) is fraught with difficulty. The construction of the policy is a matter of law, based upon an objective consideration of the words used and their context. The context of paragraph 2.4 of the API includes the fact that in paragraph 2.1, on the opposite page to paragraph 2.4, in respect of medical cases, after a reference to N, it is said:

Anyone, including a decision-maker, reading paragraphs 2.1 and 2.4 could (and, in my view, probably would) proceed on the basis that the same high threshold applies in trafficking cases. That impression is fortified by the general impression given by the policy guidance that trafficking cases are to be treated in the same as any other application for discretionary leave to remain. For example, the CAG indicates that, if discretionary leave had already been considered with an asylum claim, then it is unnecessary to consider it in the context of Article 14(1)(a) of the Trafficking Convention (see paragraph 18 above). However, as I have described, the Convention is intended to give victims of trafficking particular protection and assistance; and Article 14(1)(a) merely requires consideration of whether it is necessary for the victim to remain in a country because of his or her personal circumstances, without the higher threshold implicit in the word “compelling”.

Consequently, even if a decision-maker were to grasp that Article 14(1)(a) of the Convention requires consideration of whether it was necessary for a person to remain in the United Kingdom has to be assessed by reference to the objectives of the Trafficking Convention, there is a real – indeed, in my view, a very substantial – risk that, on the basis of the policy guidance, he would apply a threshold different from and higher than that required by the Convention.

Finally, I should deal with two discrete points relied upon by Picken J (see paragraph 36 above)

First, he suggested that the fact that the criterion in Article 14(1)(a) is in terms of whether the competent authority “considers” that the victim’s stay is necessary is of some significance. However, in my view, the word does not support the Secretary of State’s contention that a discretion is left to each state to decide the criteria that should be applied. Rather, as Mr Westgate submitted, it simply means that the competent authority has to make an assessment of whether the criteria are met in a given case. It does not bear upon the scope of those criteria, which are laid down in the Convention itself and are not a matter for the states who are parties to it.

Second, contrary to the judge’s view, I am unconvinced that paragraph 183 of the Explanatory Report gives any support to the construction which he favoured. That paragraph refers to a person’s personal circumstances being “such that it would be unreasonable to compel them to leave the national territory”; but “compel” there is used in a very different sense from that in which it is used in the Secretary of State’s policy guidance, i.e. as a verb meaning to require. The word is also used in a different context, where it is envisaged that a person will be removed from the United Kingdom, whereas, in the present context, the issue is whether it is necessary that a person should be permitted to stay here.

For those reasons, I consider that the Secretary of State’s policy guidance documents fail properly to reflect the obligation imposed upon the United Kingdom in Article 14(1)(a) of the Trafficking Convention.

I would consequently allow the appeal. Subject to the further submissions of the parties on the terms of the order, I would quash the order of Picken J, make a declaration that the relevant policy guidance is unlawful, and quash the Secretary of State’s decisions of 10 October 2013 and 16 January 2015.

I agree.

I also agree.