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

An NRM referral does not, by itself, make immigration detention unlawful or require consideration of an asylum claim to stop. The relevant guidance treats the five-working-day period for a reasonable grounds decision, and the requirement to act as soon as possible in detention cases, as targets rather than hard-edged rules. However, unexplained delay may make detention unlawful where an earlier decision would have led to release. The operational obligations under ECHR article 4 concern protection from trafficking and immediate risks of trafficking. They do not convert every breach of trafficking guidance into a breach of article 4.

The claimant, a Chinese national detained under immigration powers, made an asylum claim and was referred to the National Referral Mechanism as a potential trafficking victim. The referral was received on 31 August 2016, but a positive reasonable grounds decision was not made until 15 September 2016, when she was released.

She sought judicial review, contending that her detention and the continuation of her asylum claim were unlawful from the date of referral, or alternatively that detention became unlawful because of delay. She also alleged breach of ECHR article 4.

1. Detention following referral. The claim that detention became unlawful immediately upon the NRM referral failed. The Enforcement Instructions and Guidance identified persons positively identified as trafficking victims, rather than persons merely referred to the NRM, as the relevant category. The guidance contemplated detention before a positive reasonable grounds decision and ordinarily required release after such a decision, subject to public order grounds.
2. Continuation of asylum consideration. The guidance did not prohibit further consideration of an asylum claim while a reasonable grounds decision was pending. Interviews could continue with sensible adjustments so that they did not cut across matters relevant to the trafficking referral. The Anti-Trafficking Convention imposed no different requirement.
3. Delay and legality. The five-working-day period and the requirement to act as soon as possible were working assumptions and targets, not inflexible rules. Whether detention became unlawful required an overall assessment, allowing sensible latitude for administrative processes and avoiding judicial micro-management of finite resources. On the evidence, the decision could and should have been made by 7 September 2016. The information then available was materially the same as that used for the positive decision on 15 September, and no public order ground justified continued detention.
4. Effect on detention. The policy that a positive reasonable grounds decision would ordinarily result in release bore on the legality of detention, applying the approach in R(Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 and R(SK, Zimbabwe) v Home Secretary [2011] 1 WLR 1299. The claimant was therefore unlawfully detained from 8 to 15 September 2016 inclusive.
5. ECHR article 4. The operational obligation under article 4, as explained in Rantsev v Cyprus and Russia (2010) 51 EHRR 1 and Secretary of State for the Home Department v H [2016] EWCA Civ 565, concerns preventing trafficking, protecting victims from further trafficking, and protecting potential victims facing an immediate risk. It did not apply to the claimant’s detention or the delay in making the reasonable grounds decision. The Human Rights Act claim consequently failed.
6. Outcome. The unlawful-detention claim succeeded only for the period 8 to 15 September 2016. The article 4 claim failed in its entirety.

not stated in the judgment.