The state’s positive duties in respect of trafficking victims

In the recent case of R (on the application of FM) v The Secretary of State for the Home Department [2015] EWHC 844 (Admin), it was found that where a potential victim of trafficking is identified (following a Reasonable Grounds decision), the state has a positive duty to make enquiries to determine whether the victim qualifies for discretionary leave (hereafter “DL), i.e. to refer the victim’s matter to the police – it is not incumbent on the victim to lodge the complaint with the police – and, in circumstances where evidence has been provided stating that the victim would benefit from counselling, to clarify whether a victim is not only undergoing counselling, but if not, why not and whether [s]he would be willing to undergo counselling.

The Facts

The claimant, aged 27 at the time of the hearing, came from Ethiopia. She left Ethiopia in 2006 to Saudi Arabia via Sudan to work for a Saudi family. She worked from about 6am to midnight, 7 days a week. She was told not to leave the house; she was not allowed to visit the shops on her own. She had no social contact with anyone outside the family for whom she worked. She was often physically and verbally attacked by her employer. She was not allowed to visit a doctor, and was not taken to the doctor on an occasion when she needed medical attention. She was not allowed to eat with the family, and did not have her own food but survived on leftovers. She was provided with no sanitary protection and had to steal it from the family’s bathroom.

Conditions did not qualitatively change when she travelled to the UK in January 2009 with her employer (on a valid domestic worker visa). She was scared of the family and of what they might do to her. After about 6 months in the UK the Claimant managed to escape from her employer and claimed asylum on 28 July 2009, and was granted Temporary Admission, which was renewed on a number of occasions. She was not, however, referred to the national referral mechanism (NRM) until January 2014, and a positive Reasonable Grounds decision was issued on 31 January 2014. This was followed by a negative Conclusive Grounds decision on 19 March 2014. The claimants sought to challenge the decision under judicial review in June 2014, and a consent order was made in August 2014, in which the Defendant agreed to reconsider the Conclusive Grounds decision. Meanwhile, the Claimant’s asylum claim had been rejected and an appeal dismissed. In July 2014, the Claimant submitted a report from an approved psychiatrist, which stated the following:

• That the Claimant suffers from mental health problems, best described as a complex trauma reaction;
• That treatment was available for such a condition, and usually lasted from a minimum of 6 months to over a year or 18 months;
• That the most important factor in the prognosis after treatment is a feeling of security;
• That the Claimant is at significant risk of re-trafficking, but with a supportive package of care she would be less at risk of re-trafficking;
• The Claimant was at the time of the report nearly 5 months pregnant, and she intended to keep the baby.

On 3 October 2014, the Claimant issued a positive Conclusive Grounds decision:

“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”.

The decision did not refer to the psychiatric report, and did not provide any further reasons for refusal. The sole reason was elaborated upon, after the Claimant’s solicitors wrote to the Defendant challenging the refusal of leave to remain, in a supplementary letter of 12 November 2014, in which the Defendant stated that there are two avenues for discretionary leave (hereafter “DL”): i) co-operation with police with an ongoing investigation, or ii) ‘personal circumstances’. In respect to each of these, the Defendant stated:

1. The Claimant was not co-operating with an ongoing police investigation (nb the Claimant neither contacted the police herself, nor had she been contacted by the police), and therefore she did not qualify in that capacity;
2. The Claimant stated in her interviews that she was not receiving counselling (save for communicating with a counsellor on the phone occasionally), nor were any post-decision representations made or evidence provided suggesting that the Claimant was undergoing counselling. The Defendant therefore argued that the Claimant did not qualify on grounds of personal circumstances.

The Submissions

The Claimant challenged not only the reasons provided for refusal, but also asserted that the Defendant had fundamentally failed to consider the information she had, or to make proper inquiries into the questions raised by that information – both into the first avenue, the police investigations, and into the second avenue, the Claimant’s personal circumstances.

The Claimant submitted that there had been a serious breach of the positive duty to trigger an investigation by referring the case to the police, relying on the positive obligation on the state under Article 4 of the ECHR to carry out an effective investigation – the state cannot leave it to the victim to lodge a complaint.

In respect of the second avenue, the Claimant submitted that the Defendant was aware of the contents of the psychiatric report, and this information should have given rise to an investigation as to why counselling had not started, and whether the Claimant wished to undergo it. Any such inquiry would have produced the answers now available (which were that it would be unusual for anyone to engage with such therapy during pregnancy, and now that the Claimant had given birth, she would be willing to try therapy if childcare could be arranged.)

The Defendant accepted, in respect of the police investigation, that there was a failure to follow the policy in the Home Office document, “Victims of human trafficking – competent authority guidance” (“the Guidance”). The Defendant also clarified that the grant of DL was not contingent on a formal request from police, but that nevertheless the view of the police was an important factor in the assessment of necessity, and will usually be determinative. On this basis, the Defendant stated that the challenge to the refusal on this ground was ‘premature’, as the Defendant would in fact determine DL in respect of this avenue after hearing back from the police.

In respect of the Claimant’s personal situation, the Defendant relied on the answers provided in the Claimant’s interview, and the absence of any mention of the Claimant’s willingness to undergo therapy in any correspondence prior to the issue of proceedings. The Defendant submitted that where the Claimant was legally represented, there was a specific mechanism for provision of additional information which was not used, and therefore it was lawful and reasonable for the Defendant to have made the decision without further enquiries.

The Decision

In respect of the police investigations, the learned judge did not consider the defendant’s concession that the challenge in respect of this first avenue was ‘premature’ as a satisfactory or tenable position. The Guidance states that although a police referral may not take place until after the Reasonable Grounds decision is made, it is expected that by the Conclusive Grounds decision 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. The judge recognised that such a decision would be a significant one, as the grant of DL provides the victim with broader rights than whilst on Temporary Admission.

As for the challenge in respect of the second avenue, the personal situation, it was held that the state has a duty to assist in an identified potential victim of trafficking’s “physical, psychological and social recovery” pursuant to Article 12(1) of the Council of Europe Convention on Action against Trafficking in Human Beings (hereafter “the Trafficking Convention”). The learned judge held that it was not open to the Defendant to justify the inaction of her staff by saying that the Claimant was not legally represented, and in any event, the Guidance quite clearly imposes a duty on the Defendant’s staff to make positive inquiries. In this case, the Defendant had failed to even consider the psychiatrist’s report at all, let alone make further inquiries.

Obiter Dicta

• The Defendant’s duties to consider the welfare of the child under section 55 of the Borders, Citizenship & Immigration Act 2009 are directly relevant to an Article 8 ECHR decision, but it is doubtful whether it would be directly relevant to the trafficking decision on DL, as the purposes of the Trafficking Convention relate to the victim’s rights, and not to those of her family. The welfare of the child will be relevant only to the extent of the impact on the victim’s welfare and rights under the Trafficking Convention, e.g. pregnancy or the post-partum period may delay the start of counselling or require longer for it to be completed.
• The standard of review for DL decisions in trafficking cases is one of “anxious scrutiny”, as fundamental human rights are in issue (Article 4 of the ECHR). The effect is therefore that there is a “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).