Adesanya, R (On the Application Of) v Secretary of State for the Home Department

A person subject to a positive reasonable-grounds trafficking decision may be detained on immigration grounds where detention is justified by public-order considerations. The exceptional-circumstances test in the relevant detention guidance applies to persons conclusively identified as trafficking victims, not to persons awaiting a conclusive decision. The trafficking Convention does not directly apply in domestic law and cannot alter clear guidance through interpretation. Continued detention remains lawful while removal is reasonably achievable, applying the Hardial Singh principle. A deportation decision may be made where deportation is conducive to the public good, even without serious harm or persistent offending.

The claimant, a Nigerian national, sought judicial review of decisions to detain him, deport him and certify his human-rights claim under section 94B of the Nationality Immigration and Asylum Act 2002. He had criminal convictions, a history of non-compliance with reporting conditions and an outstanding claim to be a victim of trafficking.

After a positive reasonable-grounds decision, he argued that the detention guidance required exceptional circumstances before he could be detained, that the trafficking referral should have been made earlier, and that detention had become unlawful because removal could not be achieved within a reasonable time. He also challenged the deportation and certification decisions.

1. Detention of a potential trafficking victim. The claim was dismissed. Chapter 55.10 of the defendant’s guidance applies its exceptional-circumstances test to persons conclusively identified as victims of trafficking. It does not apply that test to persons in the reasonable-grounds stage. Chapter 9 expressly permits detention of the latter category on public-order grounds.
2. The trafficking Convention did not require a different construction. It had no direct effect in domestic law and Article 13 expressly recognised a public-order derogation from the recovery and reflection period. The reference to public-order grounds did not imply an additional requirement of exceptional circumstances.
3. The defendant was entitled to rely on the claimant’s likelihood of absconding, failure to comply with reporting conditions, immigration deception, criminal history and assessed risk of harm to the public. The detention decision was therefore based on the correct test, and the conclusion that public-order grounds justified continued detention was open to the defendant.
4. The defendant had taken appropriate steps to obtain the claimant’s signed consent to the trafficking referral. It was not unreasonable to treat the incomplete referral as concluded in the circumstances. Earlier referral would not in any event have required release, because detention remained justified on public-order grounds.
5. Applying the principle in R (Hardial Singh) v Governor of Durham Prison [1984] 1 WLR 704, detention remained lawful while removal was reasonably achievable. It became untenable to proceed on that basis only when permission was granted in the present claim.
6. The deportation decision under section 3(5)(a) of the Immigration Act 1971 was one the defendant was entitled to make. Serious harm or persistent offending was not a necessary precondition. The error referring to permanent scarring did not vitiate the decision when read as a whole. The human-rights certification challenge also failed.
7. The claim was dismissed. Consequential matters were to be dealt with by written submissions within 14 days.

First-instance judicial review decision. No earlier appellate decision is stated in the judgment.