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

At the conclusive decision stage, the question is whether the person has been a victim of trafficking, not whether she was trafficked into the United Kingdom or is currently being trafficked. The decision maker must then consider whether protection or assistance remains necessary, having regard to the purposes of the Trafficking Convention and the individual’s circumstances. A published policy implementing that Convention may be enforced through judicial review. The Dublin II arrangements do not automatically displace obligations voluntarily assumed under that policy. A challenge based on the Secretary of State’s decision to suspend the transfer period failed where the suspension was authorised by policy and the wording used to notify Norway was merely shorthand.

The claimant, an Eritrean national, had claimed asylum in Norway before travelling to the United Kingdom. Norway accepted responsibility under the Dublin II Regulation. The defendant initially accepted that there were reasonable grounds to believe that the claimant had been trafficked, but later concluded that she had not been trafficked to the United Kingdom and therefore was not entitled to protection as a trafficking victim.

The claimant sought judicial review of that conclusive decision and separately challenged the extension of the six-month Dublin transfer period. The issues were whether the conclusive assessment was confined to trafficking into the United Kingdom, whether the claimant’s current need for protection and assistance had to be considered, and whether the transfer period had been validly suspended.

1. Trafficking assessment. The conclusive decision required the same substantive question as the reasonable-grounds decision: whether the claimant had been a victim of trafficking as defined by the Convention. The applicable standard at the conclusive stage was the balance of probabilities. The assessment was not confined by the place where the trafficking occurred. Nothing in the Guidance or Convention supported the proposition that a person ceased to be a victim by independently crossing a national border.
2. Need for protection and assistance. Establishing past trafficking was not the end of the inquiry. The decision maker had to decide whether the claimant still required protection or assistance, including because of police cooperation or personal circumstances. That was a purposive assessment informed by the aims of the Convention. The defendant had failed to ask the correct initial question and had not considered material bearing on the claimant’s continuing needs.
3. Relief. The conclusive decision was quashed. The court declined to declare that the claimant was a victim of trafficking because the conclusive assessment had not yet been made and primary factual findings remained for the defendant. The defendant could obtain further expert evidence and reconsider all the material. The claimant could not lawfully be removed until a valid conclusive decision had been reached.
4. Dublin II transfer period. Following YZ v Secretary of State for the Home Department [2011] EWHC 205 (Admin), the defendant was a competent body able to suspend the transfer period under her policy, including where judicial review proceedings were brought. The notification to Norway that the claimant had taken suspensive judicial action was shorthand for the defendant’s own suspension under the policy and was not materially misleading. The challenge on this ground therefore failed.
5. The court made no determination on the validity of the Guidance concerning Dublin II cases because the defendant did not rely on that passage. It observed that the issue might require reconsideration in a future case.

This was a first-instance judicial review. Interim relief prohibiting removal was granted on 29 February 2012 and permission to apply for judicial review was granted on 21 March 2012. The judgment records an earlier trafficking challenge in which the claimant was released following the defendant’s concession, but gives no citation for that decision.