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

A person who has been subjected to human trafficking remains capable of being a victim for the purposes of the Convention on Action against Trafficking in Human Beings, even where the trafficking is historical and the person’s circumstances have improved. At the reasonable-grounds stage, the authority must decide whether there are reasonable grounds to believe that the person was trafficked. It must not make victim status depend on a current need for protection or assistance.

Current needs may affect the extent of assistance, residence rights and related measures. They do not alter the underlying status question. A person who satisfies the reasonable-grounds threshold must not be removed until the identification process is complete. The authority must also respect the requirement for an effective investigation under article 4 of the European Convention on Human Rights.

The claimant, a Nigerian national, sought judicial review of two decisions by the Secretary of State. The first, made under the National Referral Mechanism, accepted that she had been trafficked and exploited in domestic servitude but concluded that, because the exploitation had ended several years earlier and she had rebuilt aspects of her life, she was no longer a victim requiring protection under the Convention on Action against Trafficking in Human Beings. The second certified her asylum, humanitarian protection and human rights claims as clearly unfounded under section 94 of the Nationality, Immigration and Asylum Act 2002.

The central questions were whether the policy on historical trafficking misinterpreted articles 4, 10(2) and 13 of the Convention, whether the National Referral Mechanism decision was unlawful, whether the authorities had failed to initiate an effective investigation, and whether the certification decision was irrational.

1. National Referral Mechanism policy. The policy on historical trafficking was unlawful. Article 4(e) defines a victim as a person who is or has been subjected to trafficking within article 4(a). It contains no qualification making victim status dependent on a continuing need for Convention protection or assistance. Article 10(2) requires the reasonable-grounds inquiry to identify whether the person was a victim. It does not require current needs to be assessed as part of that status determination.
2. Protection and assistance. Once there are reasonable grounds to believe that a person was trafficked, the person must not be removed until the identification process under article 18 is complete. Article 12 permits the level of assistance to reflect the person’s safety and protection needs. Thus, assistance may reduce or end as needs diminish, but that does not retrospectively remove victim status. Article 14 does not create an automatic right to a renewable residence permit.
3. Recovery and reflection. Article 13 concerns victims unlawfully present or holding short-term permission to stay. It provides an opportunity to recover and escape traffickers’ influence and an independent opportunity to make an informed decision about co-operating with the authorities. The Guidance failed to identify that obligation, although the court held that article 13 imposed no further obligation beyond providing the opportunity.
4. Decision and investigation. The National Referral Mechanism decision unlawfully treated the claimant’s lack of current need and absence of a police complaint or investigation as showing that there were no reasonable grounds. That reasoning contradicted articles 10(2) and 27(1), which provides that investigation or prosecution must not depend on a victim’s report. The UK Border Agency also had a duty under article 4 of the European Convention on Human Rights to initiate or trigger an effective police investigation.
5. Certification and relief. The certification decision was dismissed. The court was not satisfied that an appeal would be reasonably arguable on asylum, humanitarian protection or human rights grounds. The National Referral Mechanism decision was quashed. The court declared that there were reasonable grounds for believing that the claimant had been trafficked, declared a breach of article 4 rights, ordered the Secretary of State to use best endeavours to secure her return, and ordered 12 months and one day’s leave to remain to enable participation in police investigations. Damages were refused because causation was not established.

This was a first-instance judicial review in the Administrative Court. The judgment records that permission was granted to proceed in relation to both the National Referral Mechanism decision and the certification decision.