Home Office breached duties towards potential victims of trafficking & sexual minorities in Detained Fast Track asylum system

On Monday 20 July 2015, Mr Justice Blake approved an agreed order and statement of reasons making eight declarations that three potential victims of trafficking had been unlawfully detained in the Detained Fast Track asylum process (DFT). The declarations were read into the judgment.

 

The Order was made in respect of the second part a wide ranging challenge by the Claimants to the decisions taken in their cases in the DFT, despite their asylum claims being unsuitable for quick processing, because they all raised indicators at the outset which required further investigation.

 

The first group of cases led to Orders on 3 July 2015 that the DFT as operated created an unacceptable risk of unfairness. This included certain categories of vulnerable or potentially vulnerable applicants where further investigation was required, for example in potential torture or trafficking cases.

 

The second group of test ‘trafficking and equality cases’ involved Claimants who had raised indicators of trafficking and torture or claims of sexual orientation from the outset (e.g. at the screening interview).

 

Those indicators should have led the Home Office to recognise that their claims required further investigation and were unsuitable for quick determination. In particular the Home Office failed to:

  • Identify the Claimants as potential victims of trafficking;
  • Investigate their claims;
  • Make a referral into the National Referral Mechanism for the identification of victims of trafficking (the NRM) or a referral to the police for further investigation;
  • Inform the individuals of the NRM process and of their rights;
  • Release them from the DFT.

The Secretary of State accepted that it had breached its obligations towards these potential victims of trafficking under Article 4 European Convention on Human Rights and her published policy on trafficking and on the DFT.

 

The positive duties under Article 4 ECHR are owed to potential victims of trafficking not only those who have been formally identified as such.  That test is met from the moment of contact if there are sufficient indicators that the person is or may have been trafficked: see Rantsev v Cyprus and Russia (2010) 51 E.H.R.R. 1 at [296 & 298]

 

The Secretary of State further accepted that it had been unlawful to:

  • detain Y as the claim based on sexual orientation required further investigation and was unsuitable for quick determination.
  • detain Y and PU as rule 35 reports raised potential claims of torture and required further investigation – in breach of Article 5 ECHR and the common law; and
  • operate the DFT without complying with s. 149 of the Equality Act 2010 - and that certain vulnerable groups were at unacceptable risk of unfairness.

The order and statement of reasons is available here:

 

The declarations made follow on from:

  • The Ministerial Statement on 2 July 2015 by James Brokenshire that the DFT was being suspended following a number of legal challenges 
  • The legal challenges referred to by the Minister namely the Detention Action litigation in which Charlotte Kilroy acted 

The declarations are likely to have an impact on potential future challenges. The Secretary of State has agreed to notify detainees who has had a fast-track asylum decision/appeal of the Detention Action litigation and the HBF/trafficking & equality cases, and given four days to take legal advice and to decide whether to make further representations. Those who have been released or removed are not being notified.  

 

ILPA has raised concerns. Further concerns still arise from the interim policy instruction which allows the detention of asylum seekers to continue though the DFT is suspended.

 

Indeed, Blake J was clear that “There may be issues for others who have not brought a judicial review and have not challenged the policy but that will be a matter to be dealt with in due course.”

 

Further information can be found here:

 

Catherine Meredith acted for the Claimant Y with Marcela Navarette and Ruth Budge at Wilson Solicitors LLP.

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