Haile, R (on the application of) v Secretary of State for the Home Department

The Claimant claims the Defendant breached the Claimant’s rights under the European Convention of Human Rights (ECHR) Article 4, comprising the Defendant’s positive obligations to identify and protect victims of trafficking.

The basis of challenge is that the Defendant failed:

to report to the police that the Claimant had been trafficked (“police reporting issue”);

to identify the Claimant as a victim of trafficking when she claimed asylum in 2010 (“2010 challenge”);

to comply with entry clearance procedures at the time of the Claimant’s application for a visa to travel to the United Kingdom (“2008 challenge”).

The relief sought by the Claimant includes a declaration, and damages.

The Claimant was born in Eritrea on 1 November 1989 to an Ethiopian mother and Eritrean father. The family relocated to Ethiopia when the Claimant was two years old. Her mother died when she was three. She stayed with her father in Ethiopia until she was 11 years old when he returned to Eritrea, leaving the Claimant with ‘a guardian’ in Ethiopia. Thereafter, the Claimant was kept ‘in hiding’ and did not attend school.

When the Claimant was around 17 years old, she decided she wanted to leave. Her guardian introduced her to an agent who obtained an Ethiopian passport for her in the name of Chefkie Etenesh Shibru, date of birth 24 August 1980. The agent also organised work for her in Dubai.

On arrival in Dubai in 2007, the Claimant was taken to a family house to undertake housework and look after the children of the household.

In 2008, the Claimant’s employers planned to come to the United Kingdom. In order that the Claimant could accompany them, on 8 October 2008 her employers made a visa application on her behalf (using the identity in her false Ethiopian passport). The Claimant says that she was taken to the British embassy by her employers’ driver, and that she was fingerprinted but not interviewed nor given any information.

The Claimant travelled to London on 1 November 2008. She says that, as in Dubai, she worked long hours on domestic duties, was unpaid after the first few months, was verbally abused by her employers and that she was afraid of them. She states that she never saw nor had control over her Ethiopian passport, nor her visa, and that she was kept locked in her employers’ apartment.

One day, the Claimant believes at the end of 2009, the key was left in the door of the apartment so the Claimant seized the opportunity to escape. Through someone she met in the street, she made contact with an Ethiopian church in Clapham, some of whose members provided her with support and accommodation. One of them suggested that she claim asylum.

On 7 June 2010, the Claimant underwent an asylum screening interview and it seems (according to the GCID Case Record Sheet entry for that day) a “trafficking pro forma” was completed. According to a further entry on the Case Record Sheet on 10 June 2010, the trafficking pro forma should have been forwarded to the Asylum Routing Team for onward distribution to the Regional Competent Authority Lead in the North West. On 8 June 2010, the Claimant was placed in emergency National Asylum Support Service (NASS) accommodation in Liverpool.

On 17 June 2010, the Claimant underwent a lengthier interview by the UK Border Agency during which she said her employer was “a very bad person, not nice”; that she was paid about 300 dirham per month in cash but her employer had stopped paying her; that she had no holidays, but no choice except to continue working even when no longer paid because she had nowhere to go; that she was kept locked in; that ‘the madam’ called her ‘slave’ and was verbally abusive to her though never physically assaulted her.

On 21 June 2010, the Claimant moved to NASS accommodation in Wigan.

On 7 July 2010, the Claimant’s asylum claim was rejected, noting that she was in receipt of NASS support and in NASS accommodation, and that her domestic circumstances were not sufficiently compelling to justify allowing her to remain in the UK.

Jackson & Canter LLP, the Claimant’s then representatives, appealed on her behalf against the rejection of her asylum claim to the First-Tier Tribunal (Immigration & Asylum Chamber). In a written determination on 14 September 2010 (following a hearing on 2 September 2010), the Claimant’s appeal was dismissed on asylum grounds, humanitarian protection grounds and human rights grounds (Articles 2, 3 and 8). At the hearing, the Claimant’s age, identity and nationality were in dispute but the Tribunal Judge found the Claimant consistent and accepted her account. At no point during the judgement is there any mention of trafficking, despite reference in the GCID Case Record Sheet (as noted at para. 10 above) to a trafficking pro forma being completed at the Claimant’s asylum screening interview. Later examination of Jackson & Canter’s files gave no indication that the Claimant was at any time identified by them as a potential victim of trafficking nor that the Claimant was ever provided with advice on whether she was a victim of trafficking by Jackson & Canter (or by counsel for her tribunal hearing).

On 16 November 2010, having lost her asylum appeal, the Claimant’s NASS accommodation (in Wigan) ceased. Thereafter the Claimant stayed with members of the Ethiopian church she had been attending in Manchester but sometimes she was street homeless. The Claimant decided to return to London in early February 2011. Once in London, the Claimant lived with various people from the church in Battersea but on occasions they could not offer her accommodation so she used to sleep rough.

In March 2011, pain the Claimant had been suffering in her neck became very bad. Having been unable to register with a GP because she had no address, the Claimant visited the Accident & Emergency Department at University College Hospital (UCH) in London. She was referred internally to a UCH Consultant ENT/Head & Neck Surgeon who examined her in April 2011 for further tests which, in May 2011, revealed a papillary carcinoma of the thyroid.

Following various medical appointments and tests, in June 2011 the Claimant was admitted for surgery but due to concerns about her tumour, more tests were undertaken with a provisional date for surgery towards the end of October 2011.

The Claimant states she used a friend’s address in London for receiving correspondence from the hospital. That friend advised the Claimant to contact the Red Cross.

In November 2011, the Red Cross referred the Claimant to Wilson Solicitors LLP, her current representatives. She attended her first appointment with them on 1 December 2011, at which time she was unwell as a result of her recent surgery (which took place on 3 November 2011). Though receiving £40 in cash per month from the Red Cross, the Claimant had nowhere to live.

In January 2012, midway through her radiotherapy treatment, the Claimant was admitted to hospital because of vomiting and other symptoms. By 16 March 2012, the Claimant was free from symptoms and medically fit to be discharged from hospital. However, radiotherapy was stopped after 28 sessions (out of 30) due to pain and the Claimant’s treating physician wrote that her “unexpectedly severe side effects [were] probably aggravated by her poor background state of nutrition requiring her prolonged admission to hospital to recover from the side effects of her radiotherapy..”

In April 2012, the Red Cross found a place for the Claimant at Shelter from the Storm, a homeless person’s shelter, where the Claimant stayed following her discharge from hospital. However, during the hours from 8am till 6pm, the Claimant had to leave the shelter and spend much of the day outside.

On 9 May 2012, the Claimant attended her second appointment at Wilson Solicitors, having missed an earlier appointment due to ill-health. She was for the first time advised that she might be a victim of trafficking.

The Red Cross helped the Claimant apply for NASS accommodation for failed asylum seekers. On 18 June 2012, such accommodation was granted on the basis of her medical condition, on grounds that she appeared destitute and on 28 June 2012, the Claimant moved to NASS accommodation in Barking.

Wilson Solicitors put the Claimant in touch with the Salvation Army which provided her with financial as well as emotional support. On 3 November 2012, the Salvation Army referred the Claimant to the National Referral Mechanism (“NRM”) which on 14 January 2013 submitted representations on the Claimant’s behalf to the Defendant’s Central London Asylum Team.

On 23 January 2013, the Defendant – while accepting the Claimant’s account – made a negative reasonable grounds (“NRG”) decision, finding that the Claimant was not a victim of trafficking for the purposes of the European Convention Against Trafficking (“ECAT”), because her trafficking was historic. The Defendant’s letter stated “you claim to have escaped from your situation of exploitation over three years ago.[but] the purpose of the Convention is to protect from traffickers and provide assistance to persons who are victims of trafficking..”. The Defendant decided that, as the Claimant had been out of her “claimed situation of exploitation for over three years”, she was not entitled to the assistance and support provided to such victims pursuant to the UK’s obligations under Articles 10-14 ECAT.

The Claimant’s solicitors wrote the Defendant a pre-action protocol letter on 26 March 2013. Having received no response, the Claimant’s solicitors lodged these judicial review proceedings on 22 April 2013.

On 31 May 2013, these proceedings were stayed, pending determination of R (Atamewan) v. Secretary of State for the Home Department [2013] EWHC 2727 (Admin) which litigated similar issues. On 6 September 2013, judgement in Atamewan was handed down. The Divisional Court found that the Defendant’s guidance had wrongly interpreted ECAT by excluding historic victims of trafficking (ground (i) in this case’s initial grounds); that a decision of the NRM taken under that guidance was accordingly unlawful (ground (ii) in this case’s initial grounds); and that Article 4 ECHR was breached because the Defendant had failed to discharge her positive duty to initiate an effective investigation by the police into trafficking offences committed against the Claimant (ground (iii) in this case’s initial grounds).

On 25 October 2013, in light of the Atamewan decision, the Claimant’s solicitors approached the Defendant to settle this claim.

On 20 November 2013, the Defendant withdrew her NRG decision of 23 January 2013 and replaced it with a new decision, finding that there were reasonable grounds to believe the Claimant is a victim of trafficking and granting her 45 days’ temporary admission as a “recovery and reflection” period to consider what to do next, including whether to cooperate with law enforcement authorities in bringing to justice the perpetrators of her trafficking. The Defendant’s new decision letter stated that she would further investigate whether the Claimant was a victim of trafficking, thereafter decide whether there were “conclusive grounds” to conclude she was and, if so, decide whether a residence permit was appropriate. At that stage, the Defendant made no referral to the police (instead, inviting the Claimant to consider whether to report the matter herself). Around eight weeks later, on 15 January 2014, one of the Defendant’s officers reported the Claimant’s case to the police.

On 23 December 2013, the Claimant served and filed an Amended Statement of Facts and Grounds (“Amended Grounds”), withdrawing original grounds (i) and (ii).

On 4 March 2014, Mrs Justice Lang granted permission for judicial review on ground (iii) (as pleaded in the Amended Grounds).

On 30 April 2014, the Defendant filed detailed grounds of defence, submitting that there had been no breach of Article 4 and there was no evidence of consequential loss or damage. To the extent that the Claimant sought to pursue the 2010 challenge, the Defendant submitted it was time-barred.

On 18 August 2014, the Defendant issued a “conclusive grounds” decision that, on the balance of probabilities, the Claimant had been trafficked and granting her discretionary leave to remain for a year and a day until 18 August 2015 on account of her personal circumstances, namely that she was in need of long term psychological treatment.

Article 4 of the European Convention on Human Rights (Prohibition of slavery and forced labour) states:

On 17 December 2008, the United Kingdom ratified the European Convention Against Trafficking (ECAT). Chapter III (Measures to protect and promote the rights of victims) of ECAT provides:

In Rantsev v Cyprus and Russia (2010) 51 EHRR 1, the European Court of Human Rights considered the relationship between trafficking in human beings as defined in ECAT and Article 4 ECHR. That case involved the death of Ms Rantseva during an attempted “escape” in “strange circumstances” from an apartment in Cyprus where she was staying during her work as an “artiste”. Ms Rantseva’s father complained about the lack of investigation into whether she was a victim of trafficking. The European Court held that trafficking as defined in Article 4 ECAT fell within the scope of Article 4 ECHR. The Court also gave guidance on the positive obligations inherent in Article 4 ECHR:

In Atamewan, the Divisional Court (at paragraph 72) recognised that Article 10(2) ECAT includes an obligation to investigate whether there are reasonable grounds for believing the person is a victim of trafficking. If so, then secondly, there is an obligation not to remove such a person from the territory until the identification process has been completed and thirdly, there is an obligation to ensure the person receives the assistance set out in Articles 12(1) and (2).

As described in the Defendant’s Asylum Process Guidance, Victims of Trafficking which was in force June 2010, a victim of trafficking obtains a positive “reasonable grounds” or “conclusive grounds” decision through a process of identification by the NRM, the framework for identifying victims of trafficking and ensuing that they receive appropriate protection and support. Referrals to the NRM are made by “First Responders” including officials at the Home Office, the police, local authorities and charities such as the Salvation Army. Direct referrals are not accepted from individuals and solicitors who should instead refer via a public body such as the police. The Competent Authority then has a target five days in which to make a reasonable grounds decision which, if positive, includes a 45 day “recovery and reflection period”. Once a “conclusive grounds” decision is made, a grant of leave to remain should be considered if the person is assisting the police with enquiries or his/her personal circumstances are such that a grant of leave is appropriate.

Amongst other things, the above guidance lists indicators to assist staff to identify possible victims of trafficking, stating that just one or a combination of factors could demonstrate that a person may be a victim, highlighting a potential situation to the Officer/First Responder who can then dig deeper to investigate. Such general indicators are stated to include:

Found in or connected to a type of location likely to be used for exploitation

Distrust of authorities

Expression of fear or anxiety

Depression (lack of interest, hopelessness, suicidal)

Hostility (annoyed and irritated easily, temper outbursts)

The person acts as if instructed by another

Passport or documents held by someone else

Perception of being bonded by debt

Being place in a dependency situation

Threat of being handed over to authorities

Threats against the individual or their family members

Injuries apparently as a result of assault or controlling measures

Both the above guidance and the Defendant’s Enforcement Instructions and Guidance (Chapter 9) in force in June 2010 – which state that they are to be followed during all operations where individuals who may be victims of trafficking are encountered - stress that “it is the authorities who have the responsibility of verifying a person as a ‘victim of human trafficking’ and it should not be expected that the person himself or herself must feel or behave as a ‘victim’.” Hence “self-identification might be difficult”. Further, “the decision maker should minute their decision and what led them to have a reasonable belief that the individual was or was not a victim of trafficking.. [and] should also ensure relevant databases such as UKBA’s CID system.. are updated at each stage of the case..’

The Immigration Directorate’s Instructions (IDI) for Domestic Workers in Private Households, issued by the Defendant in December 2006, explicitly recognise that domestic workers could suffer abuse or exploitation (paragraph 1.2). The IDI provide amongst other things:

The Human Rights Act 1998, Section 7 (Proceedings) provides that:

The parties’ respective submissions (taking the police reporting issue last) and my rulings on each are:

Ms Knorr submits that, in failing to identify the Claimant as a victim of trafficking between June 2010 (when the Claimant sought asylum) and November 2013 (when the Defendant issued the Claimant with a positive “reasonable grounds” decision), the Defendant breached the Claimant’s rights under Article 4. Ms Knorr observes that an asylum claim is a separate process to identification as a victim of trafficking, even though such victims are often identified during the asylum process. Here, the Claimant is not challenging the refusal of asylum, but the Defendant’s failure to comply with obligations under Article 4 as informed by ECAT.

Ms Knorr submits that the Claimant disclosed clear indicators of trafficking in June 2010 when she claimed asylum and that where there are indicators of trafficking, an investigation must be initiated promptly (or urgently if the person is in a situation of harm). This, Ms Knorr says, is reflected in the Defendant’s own guidance (as set out in paragraph 39 above).

However, Ms Knorr submits that, contrary to the Defendant’s own guidance, the Defendant took no steps to investigate whether the Claimant was a victim of trafficking throughout the duration of the Claimant’s asylum claim or thereafter (until the Salvation Army’s referral to the NRM in November 2012). The Claimant was therefore left in a highly vulnerable position - especially whilst suffering from cancer and the side-effects of its treatment - and faced street-homelessness, with no emotional or psychological support.

Ms Knorr concludes that had the Defendant acted lawfully, the Claimant would at all times since claiming asylum have had accommodation, material and psychological support and would have been granted leave to remain far sooner.

Mr Banner submits that the Claimant does not have permission for the 2010 challenge - the permission granted by Mrs Justice Lang on 4 March 2014 was for ground (iii) only of the Amended Grounds which was limited to the police reporting issue. Ms Knorr responds that by retaining in the Amended Grounds material about the Claimant’s asylum claim – which would otherwise have been irrelevant to her claim – it was both intended and obvious that the Claimant was also arguing breach of her Article 4 rights. Mr Banner responds that such material was “background”, not incorporated into the pleaded ground. Ms Knorr objects that, on the contrary, any text from the original pleadings retained in the Amended Grounds was obviously relied on by the Claimant; that in the Amended Grounds the Claimant undoubtedly sought permission for the 2010 challenge and it would be “tolerably plain” to the judge on permission that the whole the Claimant’s Amended Grounds was to be read in the context of ground (iii). Had the judge refused permission on any aspect of the claim as pleaded, there was a mandatory requirement to give reasons, Ms Knorr submits yet none were given nor did the judge agree with the Defendant’s position that the claim was too late. Moreover, Ms Knorr argues, delay cannot be raised once permission has been granted. Ms Knorr says that a formal application to amend grounds, submitted a week before the hearing, was a protective measure only.

Ms Knorr continues that if the court finds there is no existing permission to argue this issue, she applies formally to amend her grounds to include the 2010 challenge which, Ms Knorr argues, is unambiguous and to which the Defendant has had opportunity to respond. Ms Knorr therefore seeks any necessary permission now.

Mr Banner argues that insofar as the claim now put – including the 2010 challenge - goes beyond ground (iii) as pleaded in the Amended Grounds, it is out of time. Mr Banner submits that, insofar as belated permission is sought now, it should not be granted.

Mr Banner points out that at no stage prior to filing of the Amended Grounds did the Claimant challenge any act or omission of the Defendant prior to the NRG decision in January 2013. Mr Banner submits that, unless and until the exercise or non-exercise of a public law power is successfully challenged by way of judicial review and reversed by a prerogative order of the court, it has all the effects in law of a fully valid exercise of power (the principle of formal validity). Mr Banner cites R (Noble Organisation) v. Thanet D.C. [2006] Env. LR 8 [para. 37-61] and O’Reilly v. Mackman [1983] 2 A.C. 237 [page 283F] where Lord Diplock said, “Failing such challenge within the applicable time limit, public policy.. requires that after the expiry of the time limit it should be given all the effects in law of a valid decision.” On this basis, Mr Banner argues, the time has long since passed for challenging the Defendant’s alleged acts and omissions. Moreover, since the Claimant does not now seek any prerogative order, the principle of formal validity applies to all exercise or non-exercise of the Defendant’s public law powers prior to 23 January 2013.

Mr Banner submits that the Defendant’s conduct in relation to the Claimant prior to 23 January 2013 must therefore be treated as Article 4 compliant, and cannot be challenged collaterally via a claim for breach of human rights. Alternatively, Mr Banner submits that the claim is out of time under section 7(5) of the Human Rights Act: the first challenge of the Defendant’s compliance with Article 4 was made in the Amended Grounds dated 20 December 2013, some 39 months after the Claimant’s asylum claim was finally determined by the First-tier Tribunal in September 2010, way beyond the three month time limit for judicial review claims and three times beyond the one-year time limit for human rights damages claims.

Ms Knorr argues that the Defendant misunderstands the nature of the Claimant’s claim: it is a human rights claim, necessarily brought by judicial review because, at the time of lodging the claim, the Claimant sought a prerogative remedy in relation to the Defendant’s NRG decision of 23 January 2013. However, as the claim form and grounds made clear, the claimant sought also to bring an Article 4 claim which was never dependant on the NRG decision being quashed, so this is not a collateral challenge. The surviving elements of this claim solely concern Human Rights Act remedies, the wrongful exercise of public law powers (grounds (i) and (ii)) having since been corrected. Hence the principle of formal validity is also irrelevant since the challenge is to the Defendant’s failure to act compatibly with the Claimant’s rights under the European Convention of Human Rights.

Alternatively, Ms Knorr submits that the Defendant’s breaches of Article 4 were continuing at the time these proceedings were lodged because the Claimant had still not by then been identified as a victim of trafficking, nor had she been offered support and assistance. Ms Knorr cites R (on the application of G) v Secretary of State for Justice [2010] EWHC 3407 (Admin) (at paragraph 11) where on the topic of continuing breach, Mr Justice Burton said, “There is no doubt about the principle, particularly in European law but obviously extendable to Human Rights legislation, in many authorities that where there is a continuing obligation, a continuing state of affairs, which continue not to be put right by the Defendant, time does not run against the claimant at least until that state of affairs has come to an end.” Ms Knorr refers also to the judgement of Baroness Hale of Richmond in A v Essex County Council [2010] UKSC 33 (at paragraph 113) “Where there is a continuing violation.. time runs from when the breach was ended rather than when it began: Somerville v Scottish Ministers (HM Advocate General for Scotland intervening) [2007] 1 WLR 2734.”

Mr Banner argues that the Claimant’s submission that the Article 4 breach is continuing (and thus avoids the time limit) is contrived because the Defendant had no interaction with the Claimant after September 2010 when her asylum case was closed save for routine regular reporting to the Immigration Service which was required with a view to the Claimant’s removal. Mr Banner submits that, once a case is closed and no decision-making is required, it is unreasonable to suggest that the Defendant has any continuing duty in respect of it. Mr Banner points out that it was not until November 2012 when, through the Salvation Army, the Claimant submitted representations (not received till 14 January 2013 via the NRM), that the Defendant again became involved with the Claimant. At that stage, the Defendant dealt swiftly with the Claimant’s representations (albeit negatively) by her decision dated 23 January 2013, the original subject of this claim, as subsequently replaced by positive decisions of 20 November 2013 and 18 August 2014.

Ms Knorr submits that even if the breach of Article 4 was not continuing by the date of issue of these proceedings, the Defendant’s failure to investigate whether the Claimant had been trafficked continued at least until the Claimant’s representations were submitted via the NRM on 14 January 2013. These proceedings were issued on 22 April 2013, a little over three months later. Accordingly, this claim is not out of time.

Mr Banner submits that the Claimant gives no convincing explanation for her failure to raise the 2010 challenge at any time before December 2013 (the date of the Amended Grounds) and hence her failure to comply with the judicial review time limit of three months “from when the grounds to make the claim first arose” (CPR rule 54.5(1)). Moreover, the delay is too long to justify such a lengthy extension of time, especially when the Claimant is not seeking the quashing of an extant public law decision which continues to affect her rights, but is seeking a declaration of human rights breach and damages.

Ms Knorr argues that, if contrary to her submissions, the court finds that the claim was brought out of time, since the failure to identify the Claimant as a victim of trafficking and provide assistance and support is not a public law challenge but a failure to comply with Article 4 as informed by ECAT, section 7(5) Human Rights Act applies. The court must therefore consider whether it is “equitable” to extend time, as to which it has a wide discretion. Ms Knorr cites Dunn v Parole Board [2008] EWCA Civ 374 (at paragraphs 30 and 31) where Thomas LJ (as he then was) said “..a court should not add to or qualify or put any gloss upon the words ‘equitable having regard to all the circumstances’ when considering the exercise of the discretion under section 7(5)(b) of the Human Rights Act… Parliament gave the court a wide discretion.”

On that basis, Ms Knorr applies for extension of time on the “plainly equitable” basis that:

the Claimant could not possibly have known to challenge the failure to identify herself as a victim of trafficking (within a year of her asylum claim in June 2010) because she was unaware of the legal position until she was so advised by her current representatives in May 2012; the Defendant’s own guidance recognises that victims may not self-identify; and the Claimant’s ignorance of her employer’s illegal treatment of her was in part due to the Defendant’s earlier breach of entry clearance requirements for domestic workers. Mr Banner responds that the Claimant was professionally represented at the time of her asylum claim in 2010, and throughout this current claim. There was therefore ample opportunity for her representatives to raise any allegation of illegality of the Defendant’s 2010 actions or omissions, and while their failure to do so may ground a claim against the Claimant’s representatives for professional negligence, that does not justify extending the time-limit now. However, Ms Knorr points out that First Responders (i.e. those with responsibility for identifying potential victims of trafficking and putting them in touch with support providers) do not include individuals themselves or their professional representatives. Thus it is not the solicitors’ obligation, but the Defendant’s responsibility, to identify potential victims of trafficking, and the Defendant cannot absolve herself through the solicitors’ failure to identify their client as a potential victim. Ms Knorr adds that not all solicitors were aware in 2010 of the NRM and the trafficking framework which was then relatively new. In this case, Jackson & Canter were instructed by the Claimant on her asylum claim, not potential trafficking. Mr Banner responds that, while solicitors are not themselves First Responders, Jackson & Canter could have told a First Responder such as UK Border Agency that their client should be referred to the NRM, or they could have raised potential trafficking as an issue before the First-Tier Tribunal. Mr Banner cited AS (Afghanistan) v Secretary of State for the Home Department [2013] EWCA Civ 1469 (at paragraphs 12 and 14) as authority for that proposition: at paragraphs 12 and 14, Lord Justice Longmore said, “the appellant was not confined to arguments about asylum but could make any argument he wished which was relevant…The mere fact that the Competent Authority has made a decision which on analysis is perverse cannot prevent the First-Tier Tribunal judge from considering evidence about trafficking which is placed before him.. The FTT judge should consider the matter for himself.”

the Claimant’s ill-health hampered her receiving timely advice from her solicitors in 2011 and 2012, and timely referral to the NRM. Mr Banner responds that these matters post-date expiry of the time limit.

it was reasonable for the Claimant and her representatives first to focus on referring the Claimant to the NRM and await the decision of the Competent Authority before lodging a claim. Mr Banner replies that this is no good excuse; this attempted justification for extending the time limit was made for the first time in the Claimant’s skeleton argument for this hearing, and is unsupported by evidence.

the Defendant’s failure is glaring, breach is obvious and the Defendant does not seek to dispute it but relies on limitation. Mr Banner argues this is incorrect, and overlooks prejudice caused by the delay in enabling the Defendant producing evidence.

the Defendant is not prejudiced by the timing of the claim because all the relevant evidence is available, straightforward and not in dispute. Again, Mr Banner argues that this is incorrect because the Defendant has been substantially prejudiced by the severe delay by the Claimant bringing this aspect of her claim: meaningful instructions and witness statements from those involved in the asylum claim have been impossible to obtain because of the passage of time and the “trafficking pro forma” on which this part of the Claimant’s case relies cannot now be located.

the Claimant suffered enormously, and was left seriously vulnerable for a long time, as a result of the failure to identify her as a victim of trafficking. Mr Banner responds that this is not a good excuse, and the allegation of breach and loss does not of itself justify extending the time limit.

when in pre-action correspondence in March 2013, the Claimant raised the 2010 challenge, the Defendant failed to respond or raise limitation. Mr Banner replies that the allegations should have been pursued in the original Statement of Facts and Grounds dated 21 April 2013 but were not raised again until the Amended Grounds in December 2013, some eight months later.

permission to proceed with the judicial review was granted without any concern being expressed about the timing of this aspect of the claim. Mr Banner replies that undue reliance is placed on Mrs Justice Lang’s order granting permission, which in any event granted permission only for ground (iii) (the police reporting issue).

Finally as regards limitation, Ms Knorr submits that limitation only applies where the Claimant is bringing proceedings in reliance on the breach of her Convention rights so the court can consider this breach in determining the appropriate award of damages for the aspects of the claim expressly pleaded.

On the substantive issue, Mr Banner submits that evidence about the handling of the Claimant’s 2010 asylum claim does not justify the conclusion that failure to identify the Claimant as a victim of trafficking was in breach of Article 4. In particular, the evidence does not support the conclusion that the only rational view in 2010 was that the Claimant was a victim of trafficking. At that time, the Claimant referred to being paid and, even though she was a domestic worker with a seemingly poor relationship with her employer, the indicia set out in the Defendant’s guidance were, Mr Banner submits, not necessarily triggered so as to compel the officer interviewing the Claimant to conclude that trafficking had occurred. Ultimately, Mr Banner says, there has since been a lawful consideration whether the Claimant was a victim of trafficking to whom positive obligations were owed, and those obligations have now been discharged.

Mr Banner cites Mr Justice Treacy’s judgement in RE’s Application for Judicial Review [2014] NIQB 15 (at paragraph 65) (emphasis added):

Ms Knorr rejects the Defendant’s reliance on RE’s Application, a non-binding decision of the High Court in Northern Ireland, on the basis that breach of Article 4 should have been found in that case. Moreover, Ms Knorr submits that RE’s Application is factually distinguishable because the decision there challenged found that the applicant was not credible, and was not a victim of trafficking. Nor, in that case, was there any claimed failure to initiate or pursue an investigation, nor any failure to protect and assist the applicant as a victim of trafficking.

Ms Knorr submits that this is not a case where the Defendant made a decision that it was inappropriate to refer the Claimant’s case into the NRM, and thus the court should conduct a Wednesbury review: the court has to determine whether the Defendant’s failure to act breached Article 4. Ms Knorr submits that the evidence overwhelmingly demonstrates that the only reasonable conclusion was that the Claimant was a potential victim of trafficking because the Defendant’s own guidance states that “the threshold for referring a case is low” and that there is “no minimum number of indicators required in order to justify a referral.” At the time, the Defendant was well aware of exploitation of Domestic Migrant Workers, hence her guidance on Entry Visas for such workers.

Ms Knorr suggests that the entry in the GCID Case Record Sheet of the asylum screening interview on 7 June 2010 which refers to completion of a trafficking pro forma indicates that the interviewer clearly believed that there were indicators of trafficking. It is nowhere suggested that the Defendant’s officers considered the case unsuitable for referral into the NRM but still they did not refer.

Ms Knorr submits there were multiple opportunities by the Defendant’s officers to refer the Claimant’s case into the NRM, and the positive obligation to investigate is not momentary but binds the State throughout the period the authorities can reasonably be expected to comply: had there been a review of the Claimant’s file and the failure noticed, the Defendant would have been required to pursue a referral into the NRM.

On the issue of permission, I agree with Mr Banner’s submissions. In my judgement, it would not have been clear to the judge granting permission that ground (iii) in the Amended Grounds included a previously unpleaded claim that the Claimant’s Article 4 rights had been breached as a result of actions and omissions by the Defendant in 2010. One would have expected any such claim either to form a separate limb of the Amended Grounds or to be unambiguously added to the stated ground (iii) (which remained unamended in paragraph 1 (iii) as “The ongoing failure of the Defendant to report the Claimant’s allegations of trafficking to the police and to refer the Claimant for other support and assistance” and later in paragraph 7 “Ground (iii) - The Claimant further maintains that the Defendant has breached her Article 4 positive obligations by failing to report that the Claimant has been trafficked to the police and by failing to ensure that the Claimant has had the opportunity to make an informed decision on whether to cooperate with the police. This argument is was also being considered in R (Atamewan) v SSHD and a breach of Article 4 was found similarly, in that case, permission was granted by the Court of Appeal to argue this point.”

As for continuing breach, there is in my judgment no basis for such an argument: events in 2010 around the Claimant’s asylum interviews, asylum claim and First-Tier Tribunal hearing were all concluded in 2010 and did not in any sense impose any continuing obligations on the Defendant. After the Claimant’s asylum rights had been exhausted in 2010, there was no reason, nor obligation, for the Defendant to “review” the Claimant’s file on any continuing basis. It is therefore, in my judgment, both unrealistic and inappropriate to characterise events relating to the Claimant’s asylum claim in 2010 as “continuing” for the purposes of an alleged breach of Article 4.

As for limitation and extension of time, this element of claim is in my judgement brought far too late, with no adequate explanation why it could not have been brought at the initiation of these proceedings or, at the very latest, clearly and unambiguously as part of the Amended Grounds filed in December 2013. It is clear from the passages I have quoted in paragraph 67 above that ground (iii) under the Amended Grounds made no reference at all to events in 2010.

The Civil Procedure Rules set out in Rule 1.1 the overriding objective of enabling the court to deal with cases justly and at proportionate cost. Amongst the factors which are stated in Rule 1.2 to be included in order to deal with a case justly and at proportionate cost is “enforcing compliance with rules, practice directions and orders”. Under Rule 1.2, “the court must seek to give effect to the overriding objective when it (a) exercises any power given to it by the Rules..” To grant of permission now for the 2010 challenge would, in my judgement, fail to meet the requirement to deal with a case justly: the case which the Defendant had to answer was not put clearly, unambiguously and timeously despite ample opportunity to do so, for example in the Amended Grounds. I therefore decline to grant permission for that element of the Claimant’s claim.

However, had I found that Mrs Justice Lang had granted permission for that limb of the Claimant’s claim (contrary to my finding in paragraph 67) – or had I, in the absence of such permission, been willing to grant permission either because of continuing breach (contrary to my finding in paragraph 68) or despite issues of limitation and extension of time (contrary to my ruling in paragraph 70) - I would have found against the substantive submission.

On the substance of the 2010 challenge, it seems to me wrong in both principle and practice to revisit, with the benefit of hindsight, issues which were far from clear at the time. I do not accept Ms Knorr’s submission that it was “obvious” or “glaring” at the time of the Claimant’s 2010 asylum interviews, asylum claim and appeal that the Claimant was a potential victim of trafficking. I am reinforced in this view by the fact that nobody involved in the Claimant’s asylum claim – including her own solicitors as well as her Counsel at the First-Tier Tribunal (Immigration and Asylum Chamber) and the Immigration Judge – noted or even referred to any indicators of trafficking as regards the Claimant. While, naturally, none of this would excuse any breach on the Defendant’s part, it strongly suggests that the indicators of trafficking which were later identified and in retrospect may appear clear, were by no means obvious to anybody involved in the Claimant’s case at the time. To look back at events as they appeared in 2010 in the light of a subsequent finding that the Claimant was indeed a victim of trafficking, in order to found a human rights claim many years later, appears to me to be misconceived.

I therefore dismiss the Claimant’s claim to the extent it is based on the 2010 challenge.

Ms Knorr submits that the exploitation of overseas domestic workers in the United Kingdom was a recognised problem in 2008 when the Claimant arrived in the UK. The Defendant’s own entry clearance procedures (set out in paragraph 41 above) were designed to address this problem. Thus the Defendant, by failing to comply with her own entry clearance procedures when the Claimant was brought by her employers to the United Kingdom in 2008, missed the opportunity at that time to identify the Claimant as a potential victim of trafficking. The Defendant, Ms Knorr argues, thereby failed to offer the Claimant protection and assistance, thus breaching her Article 4 rights.

In particular, Ms Knorr alleges that the entry guidance officer failed to interview the Claimant on her own, failed to ensure she was willing to go to the UK and failed to provide her with an information leaflet explaining her rights under the UK’s criminal and employment laws (as set out in paragraph 41 above). Ms Knorr cites EK (Article 4 ECHR: Anti-trafficking Convention) Tanzania [2013] UKUT 00313 (at paragraph 42) where the Tribunal held that a failure in similar circumstances constituted a breach of Article 4: “..the failure to comply with the protective arrangements set out in the IDI [Immigration Directorate Instructions] constituted a breach of the respondent’s policy designed to provide protection to individuals in her circumstances..[T]he finding of a violation of Article 4 of the Convention…arises out of the failure to comply with the arrangements which were put in place to provide the protection which Article 4 of the Convention guarantees.”

Ms Knorr admits that this issue was not pleaded with the initial claim, but explains that neither the Claimant nor her advisers were aware of this breach, and the relevance of the EK decision published in July 2013 was not fully considered at the time the Amended Grounds were drafted, when the Claimant’s focus was on the outcome of the Atamewan case. However, once the issue was addressed with the Claimant by her representatives, Ms Knorr submits that because the Claimant was found credible by the Immigration Judge during her First-Tier Tribunal hearing in September 2010, her account can be relied upon when she describes the procedures used for granting her entry visa in 2008.

Mr Banner objects that this issue has not previously been mentioned in the proceedings, and is way out of time. He invites the court to decline permission to rely on this new ground on the basis that it was raised only in Ms Knorr’s skeleton argument and relates to events over six years ago, never previously challenged.

Mr Banner also argues that there is no good reason why this issue could not have been advanced earlier: it is based upon public law unlawfulness in 2008 and is therefore well out of time. He submits the same arguments raised against the 2010 challenge apply even more forcefully here and points out that in October 2008, when the Claimant obtained her entry visa for the United Kingdom, the United Kingdom had not even ratified ECAT which laid down positive obligations owed by state parties. Moreover, there is no specific requirement in Article 4, nor ECAT, for the provision of information during an oral interview for an entry visa. Hence failure in that regard cannot be treated as a breach of Article 4.

Mr Banner also submits that, just because the Claimant is credible, her evidence of events in 2008 – that she was not interviewed by an officer on her own, nor was given an information leaflet – cannot be relied upon without more. Further, Mr Banner submits that the Defendant is substantially prejudiced because now, so many years after the events complained of, the Defendant’s internal documentation has been destroyed in accordance with standard destruction policy. Hence the Defendant’s ability to gather evidence has been substantially affected.

Ms Knorr responds that the Defendant knew that the Claimant was challenging the lawfulness of failure to identify and protect her as a victim of trafficking so should have taken steps to establish the merits of that allegation, and seek evidence.

On the lateness of the claim and consequential prejudice, I accept Mr Banner’s submission, and reject Ms Knorr’s submissions that the delay is excusable due to “focus on other matters”, and that in any event the Defendant is not prejudiced. On the contrary, I find that the reasons advanced for failing to raise this issue previously are inadequate and that, for the reasons Mr Banner gives, there is considerable prejudice to the Defendant as a result of the lateness of the Claimant’s challenge. The Defendant has not only had insufficient opportunity to respond to this matter but her ability to do so is seriously prejudiced by the lengthy period which has elapsed since the events now complained of, meaning reliable evidence is difficult to obtain. I accept Mr Banner’s submission that, however credible the Claimant, her recollection of events in 2008, so many years later, cannot be relied on as a wholly accurate account. Without doubting the Claimant’s credibility, there are numerous reasons why her account may be inaccurate: she was young at the time (only 18 years old) and in an unfamiliar situation so she may have misunderstood, misinterpreted, misremembered or simply have been mistaken about the detail of what occurred at the British Embassy in Dubai when she underwent the procedures for obtaining an entry visa to the United Kingdom. The Defendant’s inability – through lateness of raising of the matter, and the passage of time since the events complained of – to gather her own evidence either to confirm or to counter the Claimant’s account is, in my judgement, unacceptably prejudicial to her ability to defend this element of the claim.

I therefore refuse permission to argue this aspect of the claim.

Even were permission granted to argue this limb of the claim, in my judgement the argument has no merit. Yet more forcefully than in the case of the 2010 challenge, it seems to me unrealistic as well as unprincipled to revisit, many years after the event and with the benefit of hindsight, situations which appeared quite different at the time. As Mr Banner points out, there is no evidence about the way in which the Claimant would have responded had she been interviewed alone in 2008 or given the requisite information leaflet (if indeed she was not). In my judgment, there is insufficient evidential basis on which to find that the Defendant failed to comply with her own guidance on entry visa requirements or that, even if she did, that non-compliance amounted in law to a breach of the Claimant’s Article 4 rights.

I therefore dismiss this element of the Claimant’s claim which, even more so than the 2010 challenge, in my judgement amounts to a wholly unwarranted extension of a legitimately, albeit limited, originally pleaded Article 4 claim relating to a different issue (reporting to the police a credible allegation of trafficking) which arose in different circumstances (identification of the Claimant as a victim of trafficking) at a different time (in 2013).

Ms Knorr submits that, as was recognised in Atamewan, the Defendant has a positive obligation under Article 4 to report to the police a credible allegation of trafficking. She argues that this failure was continuing between the Claimant’s asylum claim in June 2010 and the Defendant’s eventual reporting of the matter to the police on 15 January 2014.

Ms Knorr submits that this breach of Article 4 is entirely independent of the challenge to the 2013 decision because that decision did not dispute the Claimant’s account of being trafficked. Thus, Ms Knorr argues, there was a credible allegation of trafficking which should have been reported to police as soon as it was made. Ms Knorr argues that in Atamewan, breach of Article 4 was declared in similar circumstances; the European Court in Rantsev also found a breach (in that case of Article 2) even though the state in that case had agreed to investigate by the time of judgement; and in O v Commission of Police for the Metropolis [2011] HRLR 29, violation of Article 4 was found for failure to carry out an effective investigation, even though the police in fact did investigate shortly after issue of proceedings with those claimants willing to participate.

In this case, Ms Knorr submits, there was at all material times a credible suspicion that the Claimant was a victim of trafficking that was either ignored or not acted upon. The challenge here is not a public law challenge to the Defendant’s 2013 decision, she says, but a Human Rights Act challenge to the failure to act in compliance with positive obligations under Article 4 and ECAT promptly to investigate whether the Claimant was a victim of trafficking, and to report the case promptly to the police.

Mr Banner accepts that, in accordance with Atamewan and O v Commissioner of the Metropolis, Article 4 obliges the police to carry out an effective investigation of an allegation of trafficking once a credible account of an alleged infringement has been brought to its attention; and the Defendant is obliged to draw to police attention any such credible account of which it is aware. However, Mr Banner goes on that the Defendant’s 2013 decision did not trigger any positive obligations under Article 4. Mr Banner again relies on RE’s Application for the proposition that, despite the (later adjudged, by virtue of the Atamewan judgement) unlawfulness of the Defendant’s original 2013 decision, once the Defendant had made a new and lawful “gateway” decision in November 2013, those positive obligations under Article 4 were first triggered, and then discharged by the Defendant, so there was no breach.

Mr Banner contends that the allegation the Defendant failed to inform the police that the Claimant is a victim of trafficking is factually wrong: having reminded the Claimant in her “conclusive grounds” decision letter in November 2013 that cooperation with police, while not mandatory “may be very important in helping to bring to justice those responsible for exploiting you”, on 15 January 2014 the Defendant herself referred the matter to the police and “continued to monitor and chase” thereafter. The Claimant was interviewed by police on 26 February 2014 but in June 2014, the Claimant decided not to pursue the allegations so police closed the investigation.

Mr Banner argues that the Defendant has therefore discharged her obligations: the Claimant’s allegation that the Defendant breached Article 4 by failing to report the Claimant’s case earlier was not pleaded, and is in any event without merit because the duty under Article 4 is to secure an effective investigation. Mr Banner submits that the timing of the investigation can only be of conceivable relevance if there is such a considerable delay that such investigation is ineffective. He cites CN v UK (2013) 56 EHRR 24, paragraph 69 that “For an investigation to be effective, it must be independent.. it must also be capable of leading to the identification and punishment of individuals responsible, an obligation not of result but of means. A requirement of promptness and reasonable expedition is implicit in all cases but where the possibility of removing the individual from the harmful situation is available, the investigation must be undertaken as a matter of urgency.” In the present case, however, Mr Banner says there is no evidence that the Claimant would have pursued her allegations had the police been informed earlier: the investigation was closed because of the Claimant’s own informed decision not to pursue the allegations, not that effective investigation was impossible: indeed, it is suggested that the police managed to identify from entry visa data the alleged perpetrators of the Claimant’s trafficking so the case could have been pursued but for the Claimant’s decision not to do so.

To this, Ms Knorr responds that the breach identified is to initiate the investigation: hence subsequent chasing up of the police, and whether the investigation was “effective”, is irrelevant to the Article 4 breach. Moreover, Ms Knorr cites O v Metropolitan Police where breach was found despite the successful prosecution of one of the Claimant’s traffickers by the date of judgment because the principle is that the investigatory duty is one of means, not results.

Mr Banner distinguishes O v Metropolitan Police: in that case, claimants suffered “frustration and anxiety” over a lengthy period by the failure to investigate. There is no evidence of such in this case.

To consider whether the Defendant failed in her duty to report the Claimant’s case to the police once credible suspicions had arisen that the Claimant was a potential victim of trafficking, I shall first consider the point at which the duty arose. Despite Ms Knorr’s submission that a credible allegation was made in 2010, for the reasons I have given in paragraph 72 above, I do not accept that argument. The latest stage at which the Defendant’s duty arose was, in my judgement, in November 2013 when the Defendant made her “reasonable grounds” decision in respect of the Claimant as a victim of trafficking – and the earliest in January 2013 when the NRM referred the Claimant’s case to the Defendant. In January 2013, however, the Defendant – acting under her then current guidance – found that the Claimant’s allegations were historic. On the Claimant’s own account, she had escaped from her employers/traffickers over three years earlier. The Defendant’s guidance was, as a consequence of the Atamewan decision, found to be unlawful and has since been revised. However, it seems to me that the Defendant’s failure to report the matter to police at that stage was consistent with her guidance and her NRG decision in January 2013 and – to adopt Mr Banner’s terminology – did not trigger any positive obligations under Article 4. Moreover, after making her new “reasonable grounds” decision in November 2013, the Defendant’s later report, by her own motion, of the Claimant’s case to the police in January 2014 did not, in my view of the circumstances, constitute an unreasonable or substantial delay. Nor is there any evidence that any alleged delay in reporting the matter to the police rendered their investigation ineffective. Indeed, although the police only became involved years after the events which might have given rise to criminal charges, it appears that after receiving the first report in January 2014, the police were nevertheless able to identify – from the Claimant’s entry visa application – those who had employed and trafficked her. There is therefore no reason to believe that the police investigation could not have been pursued further had the Claimant continued to cooperate with the criminal enquiry. However, it clear from the Claimant’s own witness statement that it was she who – for perfectly understandable reasons – despite police encouragement to do so, decided not to take matters further. Therefore the police investigation was closed.

In those circumstances, by reporting the matter to police on 15 January 2014, albeit slightly later than she might have done, in my judgement the Defendant complied with her positive duty to instigate a prompt and effective police investigation, and thus the Claimant’s submissions that the Defendant was in breach of Article 4 in this respect also fail.

In the light of my findings, there is no need for me to consider damages and I do not propose to do so. I would however observe that I regard the form and content of the evidence which the Claimant submitted in this respect as being inadequate to have enabled any proper assessment of damages to have been made.

As Mr Banner pointed out, no formal expert’s report, with the various safeguards that involves, was provided. Moreover, at highest, the doctor’s letter which was supplied opines that “In my professional opinion, being diagnosed with cancer and undergoing treatment at a time when she did not have social or economic support therefore had a significant negative impact on Ms Haile’s mental health.” There appears to me to have been no proper assessment of other possible causes of the Claimant’s mental ill-health nor, given the Claimant’s late production of this evidence, adequate opportunity for the Defendant to challenge that evidence.

It seems to me that this court is ill-equipped to make assessment of disputed issues of causation and damages without the availability of most robust evidence, a standard which, in my judgement, the evidence in this case failed to meet.

Having found entirely in favour of the Defendant in this matter, I order that the Defendant’s costs from 21 November 2013 (being the date of the Defendant’s new “reasonable grounds” decision in favour of the Claimant, in replacement of the original Defendant’s NRG decision of 23 January 2013, the original subject of this claim) are to be paid by the Claimant to the Defendant. On the basis that the Claimant has been publicly funded for this claim, and that the Claimant has the benefit of cost protection under section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the amount that she is to pay shall be determined on an application by the Defendant under regulation 16 of the Civil Legal Aid (Costs) Regulations 2013. An assessment of the full costs and any objection by the Claimant to the amount of costs claimed shall be dealt with on that occasion.

There shall be detailed assessment of the Claimant’s legal aid costs.

Mr. Banner emphasises that the Defendant takes very seriously her responsibilities in dealing with the abhorrent crime of trafficking in human beings, and protecting those who are, or may be, victims of this crude and inhumane practice.

As Mr. Banner acknowledges, on the facts of this particular case, the court understandably feels a considerable degree of sympathy for the Claimant, given her tragic early life, her history as a trafficked person, and the grave illness from which she is now suffering. However, as will be clear from the reasons set out above, the court finds no principled basis in law for her claim to succeed.

It is also plain from this judgment that a considerable proportion of the parties’ submissions both in written argument and orally in court, and consequently a significant proportion of the matters the court was called upon to decide and set out in this judgment, are procedural. I regard this with regret since, in my view, a number of these issues could have been dealt with more efficiently and effectively, or even avoided altogether, had appropriate focus at an earlier stage been brought to the real issues in the case.