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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> XB v The Secretary of State for the Home Department [2015] EWHC 2557 (Admin) (10 September 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/2557.html Cite as: [2015] EWHC 2557 (Admin), [2016] Imm AR 101

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/09/2015

Mr Justice Collins:

1. As will become clear, the claimant has remained anonymous in this claim and will continue to do so. I have been requested not to identify by name the country of which she is a national. I shall refer to it in this judgment as Aland.
2. This claim was lodged on 24 October 2013. An interim injunction was sought to prevent the claimant's removal to Aland which was to take place on 25 October 2013. That application was refused by Andrews J and so the claimant was removed and has since remained in Aland. I shall set out the history in due course. She had made a claim for asylum or humanitarian protection which had been refused and a deportation order had been made on 7 June 2012. Her appeal against the order and the refusal was dismissed by the First Tier Tribunal (FTT) on 5 March 2013. Her appeal to the Upper Tier Tribunal was dismissed on 22 July 2013. On 25 September 2013 she made an application to revoke the deportation order on the basis that there was fresh material which had not been considered. This application was refused on 18 October 2013 and was certified as being clearly unfounded under section 94(2) of the Nationality Immigration and Asylum Act 2002. This meant that any appeal that she made would have to be from abroad and, as I have already indicated, she was removed since her application to prevent removal was refused. She has appealed to the FTT. That appeal is due to be heard at the end of September. This claim has not been heard earlier because it was considered sensible to hear the FTT decision first. But it has not been possible to set up a means of enabling her to take part in the hearing by electronic presence. This claim has accordingly been limited to a challenge to the certification since, if that was unlawful, the claimant should not have been removed because she would have had a right to an in-country appeal and deportation would have been suspended pending such appeal.
3. The claimant was born in 1985. She had a significantly unhappy childhood with an alcoholic father and a mother who was violent towards her. She was in addition subject to sexual abuse from a neighbour. She entered into a relationship when aged 14 with a man who assaulted her. That man was involved in criminal activities and was arrested. The claimant then had a relationship with an older man as a result of which she gave birth to a daughter in February 2004. The child's father has played no part in her or her daughter's life.
4. She was introduced by a friend to a woman who said she could arrange for the claimant to go to China and work there to earn the money which the claimant needed to enable her to look after herself and her daughter. A passport was obtained for her. She travelled to China with the woman to whom she had been introduced and was compelled to work as a prostitute. She was, she says, trafficked. Because of fear of the influence the woman had in Aland with the police, the claimant went to China on two further occasions where she was forced into prostitution. She returned to Aland after the third visit to China in the summer of 2006 when she met with a woman I shall refer to as Diana. She believed Diana to be a friend and accepted her offer to assist her to work abroad in a shop or restaurant. Arrangements were made for her to go to Germany via Ukraine but, when in Ukraine, she was informed that her documentation was false and she was returned to Aland. Diana then told her she must pay her the money Diana had expended in arranging for her to go to Germany and that led her in due course to travel to the UK with a false passport on 31 March 2007.
5. She was met by a man whom I shall refer to as SK. He told her that she was to act as a prostitute. She was, she says, entirely under SK's influence. He was running a prostitution business involving the claimant and others. She returned to Aland on some two occasions between 2007 and 2010 when she entered the UK, this time under a false name with a false Romanian passport. She travelled from Spain via Dublin.
6. On her return to the UK, she refused to work any longer as a prostitute. She worked doing nails for women and paid SK her earnings. In July 2010 she was attacked by three Lithuanian's who shaved her head and threatened her with worse if they did not get money owed them. In December 2010 she was arrested and was charged with a number of offences together with SK. She pleaded guilty to conspiracy to control prostitution, to four counts of possession of false passports and an identity card, possession of criminal property and removal from the UK of at least £100,000, the proceeds of crime. She had been charged on two counts of conspiracy to traffic persons into the UK for sexual exploitation but her pleas of not guilty were accepted, albeit the Crown Court record falsely records that she pleaded guilty to such counts. The most serious offence was the conspiracy to control prostitution for which she was sentenced to 30 months imprisonment. She received concurrent lesser sentences for the other offences.
7. The claimant was represented by solicitors who were, she says, put to her by SK. She did not trust them not to inform SK of anything she may have said to them and so, she asserts, she did not explain properly that not only had she been trafficked by SK and Diana but she had been in effect compelled to commit the offences to which she pleaded guilty by SK. But she did submit to the Crown Court judge that she was a victim and that in the circumstances she should receive a non-custodial sentence.
8. The judge held a lengthy Newton hearing. It has been submitted that the prosecution accepted that she had been trafficked. That is not established by the record of the submissions made following the Newton hearing. The prosecution could not say whether she had been trafficked into China but that she had freedom of movement into and out of the UK and had been actively involved in the transfer of substantial proceeds of the prostitution business. It is also to be noted that in his written submissions to the judge, her counsel said this:-

"The trafficking of [the claimant] into the UK bears a striking resemblance to the trafficking of other victims in this case. It is important to state on clear instructions that the defendant does not dissent from her evidence that the co-defendant had nothing to do with her trafficking and did not control her prostitution. We simply point out the similarity of her case to other victims".

9. She had given evidence in the Newton hearing, but the judge did not accept her claim that she was to be treated as a victim. He observed in sentencing her:-

"…..you were…part of a team. You practised prostitution yourself which you were joined socially and sexually in sexual business with [SK] and when you would stop providing sexual services yourselves (sic) you assisted him in running what was a business."

SK was sentenced to 10 years imprisonment for conspiracy to traffic and 4 years concurrent for the offence of conspiracy to control prostitution.

10. The sentences were imposed on 10 October 2011. They were given publicity on the Metropolitan Police website and in English and Russian press. There was additional reporting a year later when the claimant's photograph was included as SK's girlfriend.
11. Section 32(5) of the UK Borders Act 2007 requires the defendant to make a deportation order where a person has been convicted of an offence and sentenced to more than 12 months imprisonment. This does not apply if to deport would be a breach of the person's convention rights (namely either the ECHR or the Refugee Convention) (s.33(2)) or "where the Secretary of State thinks that [deportation] would contravene the UK's obligations under the Council of Europe Convention on Action against Trafficking in Human Beings….." (s.33(6A)).
12. On 11 June 2012 the claimant was served with a decision that she was to be deported. She had been requested in November 2011 to give reasons why she should not be deported "following your conviction for conspiracy to traffic" and three other convictions. She had not been convicted of conspiracy to traffic: that error may have arisen from the erroneous certificate issued by the Crown Court. But, since she was sentenced to 30 months for the conspiracy to control prostitution, the error is said not to have been material.
13. The claimant stated in June 2011 through her solicitors that she wished to claim asylum. She made a statement on 29 November 2011 in which she stated that, she would be persecuted in Aland because of her criminal conviction involving prostitution by her and control by her of prostitution by other girls. Interpol in Aland had been notified by Interpol in the UK of her alleged criminality and this she contended would put her in danger of persecutory action against her by the authorities in Aland. She stated:-

"Since my sentence this case has been on the internet with various media coverage, my family has seen the internet reports and have said it is too dangerous for me to return because every body knows about this case now especially the Aland Interpol/police and this lady called Diana…..she will know that, if I return, for sure and has links with the police….".

She asserted that she was a victim. She does not say in terms that she was trafficked.

14. Her then solicitors applied for a deportation decision not to be made. While they did not in terms assert that she had been a victim of trafficking, they referred to s.33(6A) and stated:-

"We have been instructed that our client has been deceived by people who have offered her a job abroad. She stated that she was used as an escort and as a prostitute in the UK and in China. She stated that all she wanted to do was to get a good job and support herself and her daughter. She stated that since she has been in the UK she has been used, abused and has been subject to physical violence."

The bulk of the letter was taken up with an Article 8 claim, which the solicitor's should have realised would get nowhere. But the paragraph I have cited put the Home Office on notice that she may have been trafficked and her fears of persecutory action by the authorities in Aland since they would know of her convictions were raised.

15. In February 2012 the competent authority (NRM) decided that the claimant was not and had not been a victim of trafficking. The erroneous belief that she had been convicted of trafficking others must have been a relevant pointer. But the conclusion was understandably strongly influenced by the Crown Court judge's decision and the fact that she was apparently and on her own admission not under SK's influence in what she had been doing. It was also noted that the officers investigating the offences were from the Human Exploitation and Organised Crime Command and so specially trained to recognise victims of trafficking. The view formed was that she was a willing participant in the exploitation of others.
16. A report had been obtained from an individual who had expert knowledge of the situation in Aland. There is it is said endemic corruption and complicity in trafficking, discrimination against those of the claimant's ethnicity and frequent persecution and torture by the police and security officials. She stated:-

"According to the above cited reports and other cases cited in those reports it is highly probable that she will be arrested on the ground of illegal border crossing and prostitution. [The claimant's] fears of arrest are plausible."

17. Those representing the claimant before the FTT relied on the claimed breach of her convention rights under s.33(2) not on s.33(6A). But it was said on her behalf that the claim that she was trafficked was central to the case. The FTT rejected the submission that in committing the offences she was a victim. Reliance was placed on the Crown Court judge's findings and the FTT was unimpressed with the suggestion that she had shown true remorse for her crimes. But the FTT did make the following findings which Ms Lieven relies on as being important (paragraph 39 of the FTT determination). The FTT observed that there was a lack of exaggeration in her claim and continued:-

"It was open to her to bolster her case by claiming additional problems and it is to her credit that she has not done so. It is widely acknowledged that [Aland] is a source country for trafficking and bearing in mind the low standard of proof we are prepared to accept that she was originally trafficked here. Nevertheless, as time moved on, the situation changed as we have outlined above".

18. The FTT rejected the submission that Diana would be able to influence the authorities to persecute or would herself with or without the assistance of SK be able to persuade individuals to harm the claimant. It further did not accept that there was a risk that the claimant would be re-trafficked.
19. In paragraph 44 the FTT considered whether the Aland police or authorities would be aware of her convictions. It found no reason to believe that Interpol would have informed the Aland authorities of the interest in her (the Interpol contact was before her convictions). Further it found that there was no reason why the Aland police should be aware of her convictions.
20. It is not clear what material was put before the FTT to support the contention that the Aland authorities would be aware of her convictions. The website entries were referred to. The FTT decided that the Aland authorities would not be likely to have searched. But there has been produced before me reports published together with photographs in both English and the claimant's language papers.
21. Ms Lieven relies particularly on the contention that the FTT was not given full information on the important question whether the Aland authorities would be aware of the convictions. In the course of the claim disclosure has properly been made of the relevant internal memoranda in considering whether the claimant would be at risk on return to Aland. In a minute of 24 March 2012, an official "offered some suggestions on progressing the case" to the decision maker. This focussed in particular on the assertion raised by the claimant that she would be ill-treated by the Aland authorities and sentenced to further incarceration for the offences she had already been convicted and sentenced for in the UK. The official stated:-

"Officials at the [Aland] Embassy in the UK have been notified that [the claimant] has been in prison in the UK and they will know the details of her convictions even though we may not have told them. It is inevitable that someone at the [Aland] Embassy would have made enquiries as to the reason for her arrest, even if they only searched her name on Google, and would have received details of her crime and conviction in the UK".

He went on to note that there were reports that abuses of detainees or suspects in Aland were widespread and they included torture.

22. In a subsequent minute, the official referred to reports that double jeopardy could be applied so that if the evidence indicated that she would be at risk of persecution from an offence of leaving Aland illegally or overstaying her leave to be out of the county or for the offences she committed in the UK she might have a valid claim. It was clear from the report received from the Country Origin Service that Aland did not respect double jeopardy as a reason not to prosecute.
23. It is to be noted that Prison Service Order 4630 requires prisons to inform the embassies of nationals of countries including Aland of the national's full name, date of birth, offence and, if available, sentence length. There is an obligation for this to be recorded. It does not seem that this was pursued with the prison and it is assumed on the defendant's behalf that the prison authorities did not comply with their obligations.
24. It is to be noted that there was a positive assertion that the Aland authorities had been notified. The official has since said that he cannot remember why he made those observations. The decision maker's response to the observations of the official was hardly satisfactory. He said:-

"Were [the claimant] to come to the attention of the authorities it is an arguable point whether [her] crimes in the UK would amount to 'double jeopardy' and it is predicated on the belief that [she] would come to the attention of the authorities for her crime in the UK. This technical point on its own is not sufficient to outweigh the adverse aspects of [her] conduct or the weakness of the overall claim. As a consequence our decision to refuse should be maintained and this point can be argued at appeal if necessary".

Thus the official's indication was it seems simply ignored. In the decision letter the assertion that the Aland authorities would be aware of the convictions was rejected.

25. Ms Lieven submits that the FTT was misled by the failure to disclose the official's observations. Had the FTT been aware of them, it might well have reached a different decision. Ms Giovannetti in her skeleton argument sought to deal with the point by saying that the official's assertion that the Aland authorities would inevitably have made enquiries was simply a comment by the official which did not represent the considered view of the defendant. She made the point that it is not normally considered necessary to disclose such material which records the decision making process. The difficulty Ms Giovannetti faces lies in the positive statement that the Aland Embassy had been informed. This is not comment; it is a statement of fact which was not shown to have been wrong. I have no doubt that there should have been proper investigation of whether the Prison Order had been complied with and simply to ignore the officials positive statement was wrong. The defendant was in my view clearly in breach of her obligation to act fairly by not disclosing the information, unless investigation showed it to be erroneous. But I am bound to say that overall I find the FTTs conclusion that the Aland authorities would not have been aware of the convictions to be a surprising one, albeit perhaps not sufficiently so to breach the Wednesbury test.
26. I must now turn to the decision which is the subject of this claim. The question whether the Aland authorities would be aware of the convictions remains material. It is necessary to consider the basis of the application. Indeed, Ms Giovannetti, having accepted there were, as she put it, some infelicities in the decision, submitted that those were not material since they did not arise from the grounds put forward in the application. The application which was to be considered as a fresh claim was made on 25 September 2013 by a firm, not the claimant's present solicitors. It concentrated on what was said to be fresh evidence of the risk from Diana and SK supported by the report of a lady whose headed notepaper describes her as a Human Trafficking Expert. In a very lengthy report the expert relied on the fact that in Aland there is systematic corruption and collusion of the authorities in trafficking. She went through what the claimant stated about her history and concluded that she was indeed in her view a victim of trafficking under SK's control and her status as such had not been properly considered by the CPS in deciding to prosecute her. It is perhaps unsurprising that the defendant did not accept that that report raised anything that changed her conclusion. But the totality of the information known to the defendant had still to be taken into account.
27. Directive 2011/16/EU on preventing and combating trafficking requires steps to be taken to protect and support victims of trafficking. Article 10 of the Convention on Action against Trafficking which is applied by Section 33(6A) of the 2007 Act requires the UK to have properly trained persons to identify victims of trafficking and to make provision to avoid prosecution of such victims if they are compelled by traffickers to commit offences. The Explanatory Report in paragraph 128 makes the point that victims often have passports or identity documents taken away and so are treated as illegal immigrants, prostitutes or illegal workers and removed.
28. The Home Office has issued guidance in relation to victims of trafficking. This identifies a number of important factors which decision makers should take into account. Essentially, it is said that the trauma of having been trafficked may lead to difficulties in giving explanations. In particular, victims may be unwilling or unable to think of themselves as victims, Stockholm Syndrome whereby a false emotional or psychological attachment to a victim's controller may exist. It is pointed out that many victims do not recognise themselves as such.
29. Parliament has decided that whether a person is a victim of trafficking can be relevant to determination of whether, notwithstanding he or she has committed a criminal offence, he or she should be deported. Thus it is necessary for the decision maker and the Tribunal on appeal to consider whether the person has been the victim of trafficking.
30. In the fresh claim application, attention was drawn to the decision of the Divisional Court R(Atamewan) v SSHD [2013] EWHC 2727 (Admin). As the head note accurately indicates, the court decided that a victim of trafficking covered by the Convention and so requiring the protections set out in it was anyone who was presently or had been a victim. The claimant had been trafficked but had managed to escape her servitude. She had been deported as the subject of certification under s.94. The important point is that the obligations to protect and assist apply whether or not the trafficked person remains a victim. But the key matters in this claim relates to whether the claimant was properly dealt with by the defendant since her actions against the claimant were based on rejection of her claim to have been trafficked. There can be no doubt that, having regard to what the Guidance indicates, her claim to have been trafficked and that she was still a victim when she committed the offences cannot be regarded as unarguable. Indeed, if she was trafficked, her involvement with SK is not inconsistent with her present claim that she should not have been prosecuted. That claim has resulted in an application to the CCRC, but I do not have to consider it for the purposes of this judgment.
31. In the refusal decision, at paragraph 38, it was said that the FTT had no jurisdiction to decide that the claimant had been trafficked. The NRM decision that she had not been trafficked was, it was said, only challengeable by judicial review. In paragraph 45, the relevance of Atamewan was rejected because a challenge to the NRM decision 'is not part of an immigration decision'.
32. That the FTT had no jurisdiction is clearly wrong in law cannot be and has not been disputed. Section 33(6A) requires it to be considered and it is in any event always material in deciding whether a person should be removed. In AS(Afghanistan) v SSHD [2013] EWCA Civ 1469 the Court of Appeal decided that the Tribunal in hearing an appeal should decide whether an individual had been trafficked if that issue was raised. The NRM decision was of course material but was not conclusive. Longmore LJ, giving the only reserved judgment, used the adjective 'perverse', saying that it would be odd if the Tribunal could not decide differently if the NRM decision was perverse. I do not think he was importing the Wednesbury test. It would be strange if he was since the Tribunal may have had different factual material or may have properly formed a different view of evidence than that formed by the NRM. In paragraph 18, Longmore LJ observed:-

"No doubt, if a conclusive decision has been reached by the Competent Authority, First Tier Tribunals will be astute not (save perhaps in rare circumstances) to allow an appellant to re-run a case already decided against him on the facts. But where, as here, it is arguable that, on the facts found or accepted, the Competent Authority has reached a decision which was not open to it, that argument should be heard and taken into account".

It seems to me that if a Tribunal is satisfied that the decision of the NRM was wrong, it not only is entitled to but should decide the contrary.

33. This is not the only error in the decision. In paragraph 52 it is said that there was an ability to secure a sufficiency of protection against any action by those the claimant feared. That is a highly questionable conclusion in the light of the evidence of the corruption and adverse actions by the Aland police.
34. I do not need to go into the well-known authorities on what has to be established if the defendant is to certify a claim under s.94. Only if the claim must clearly fail can it be certified. And it is not permissible to certify because the Secretary of State does not believe the claimant's account unless it is so clearly impossible to believe that no appellate body could accept it or a material part of it. That, having particular regard to the FTT's favourable view of the claimant's lack of exaggeration, is not the case here. It cannot in my view be said that an appeal would have been bound to fail.
35. No reasons are given for the decision to certify. The exclusion of consideration of the FTT decision that the claimant had been trafficked was clearly a material factor. There was evidence of the possibility that the Aland authorities would take action against the claimant if they knew of her convictions. The Secretary of State was aware that her own official had said in terms that they were told and that the prison should have informed the Embassy. The risk of persecution by the authorities because of this is not referred to. The fact that the fresh claim did not specifically refer to it is not an acceptable answer since it remained a matter on which the claimant relied.
36. I have no doubt that the decision to certify was unlawful and that the claimant should not have been removed. But that Ms Giovannetti submits does not require that she be returned since she can pursue her appeal from abroad and she has now been in Aland for some 21 months without any persecutory action being taken. She has not been prosecuted or otherwise dealt with because of her offending in the UK. Accordingly, it is submitted, she has not suffered and will not suffer any ill-treatment which could justify her appeal being allowed.
37. In her statement, the claimant says that on arrival in Aland she had no passport, merely an EU letter. This was correct. This, she says, led to her being incarcerated for some 48 hours in conditions which were appalling and which breached her Article 3 rights. In addition, she says that before she could receive a new passport or leave the country she had to pay a fine. It seems that that was not paid and not demanded until March 2015 and she has produced a copy of a receipt given to her which states that the reason for paying was breaching passport rules. She has, she says, recently been required to attend for a medical examination because she had been for a time out of the country.
38. There have been produced reports from two highly respected sources. One stated that the claimant was at very grave risk of being detained, tortured and prosecuted for returning on an EU letter without a passport and the author would not be surprised that it had taken, as he put it, "2 months or 17 months or…even longer" because "this is a bureaucratic and authoritarian regime". The claimant, he says, remained permanently vulnerable. The other report focussed on double jeopardy and the risk to the claimant resulting from that. The author said that the claimant was in his view at substantial risk of arbitrary detention, double-jeopardy arrest and detention, with a serious risk of severe ill-treatment, up to and including torture.
39. These statements were made when it was believed on the basis of the claimant's statement that she had not been able to obtain an exit visa. That evidence was not correct. It now transpires that she was given an exit visa before she made her statement asserting that she had not had the return of her passport. But each of the witnesses has said that this did not in their view mean that she did not remain at risk. This is powerful evidence which could persuade the FTT that she was at risk of treatment which breached Article 3. In addition, there is also the claim that she was a victim of trafficking which in addition would be material in deciding whether she should be deported.
40. FTT Judge Vaudin d'Imecourt gave a ruling following a Case Management hearing on 17 March 2015. He was informed, and it is not disputed, that the claimant's access to a secure line was blocked by the Aland authorities. Reference was also made to her requirement to visit the police station and pay the fine amounting to US$400. He records that he was given a statement from a medical expert that the claimant's mental state was such as meant she was unfit to give oral evidence and would be at a great disadvantage if she did not have support which would be unlikely to exist if she participated electronically rather than in person. The judge was, as he put it, prima facie satisfied that the claimant was "being prevented from giving evidence and/or properly participating in these proceedings as originally anticipated as a result of the risk attached to her if she attempts to do so as matters now stand". He had no power to direct that she be returned to the UK to enable her to have a fair hearing. He made the following Direction:-

"That the Secretary of State uses reasonable endeavours to arrange for the appellant to be safely present at the hearing of her appeal, either physically in person in the United Kingdom or through electronic means, as was originally contemplated".

41. It has not been possible to arrange for a secure means of electronic presence from Aland. The best that the defendant has been able to suggest is that she goes to a third country from which she can have secure access. The defendant is not prepared to agree to allow her to enter the UK to attend in person since, Ms Giovannetti informed me, there is concern that she would abscond, having regard to her past use of false passports. Ms Lieven says that it is open to the defendant to grant temporary admission subject to controls and that in any event the concerns were groundless. It is also said by Ms Giovannetti that there are concerns that it will be said that there needs to be a delay in hearing her appeal because of her mental condition. The latter concerns are more likely to become real if the suggestion of use of a third country is followed. I am bound to say that I find that suggestion wholly unrealistic.
42. Since the certification was unlawful, the usual order would be that the claimant be returned to the UK. I do not accept Ms Giovannetti's submission that because the claimant has not been treated in a manner which breaches her Article 3 rights since being in Aland I should regard her appeal as bound to fail. There is powerful evidence from the two sources I have referred to in her favour and it will be open to the FTT to find that Section 33(6A) prevents her deportation. It is not for me to pre-judge the FTT decision.
43. Since she has an exit permit valid until some time next year, it is surely relatively simple to enable her to return. The defendant has only to agree to permit her to enter with temporary permission so that she can attend her appeal. If it is allowed, she will be able to remain here. If her appeal rights are exhausted and the decision is adverse, she will then be removed.
44. It follows that I allow this claim and direct that the defendant ensures that the claimant may enter the UK to enable her to attend her appeal.