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

A challenge to a withdrawn decision is academic unless a live issue or effective relief remains. An asylum claim by an EU national is ordinarily inadmissible under the Spanish Protocol, absent truly exceptional circumstances; general trafficking concerns do not necessarily create an exception. An NRM referral does not itself make immigration detention unlawful. However, failure to conduct a required medical examination may render detention unlawful, and administrative failures within the competent authority cannot justify delay. Once a positive reasonable-grounds decision is made, continued detention requires a particularised public-order justification and urgent release arrangements. Support duties owed to a potential trafficking victim require objectively assessed assistance meeting at least subsistence, accommodation, medical and psychological needs, but do not necessarily require specialist trafficking treatment or psychological recovery.

ZV, a Lithuanian national, challenged deportation-related decisions, the inadmissibility of her asylum claim, her immigration detention, and the Secretary of State’s compliance with trafficking-protection duties and policy. She alleged that she had been trafficked, subjected to prolonged abuse and compelled to commit shoplifting offences.

The Regulation 33 certification was withdrawn during the proceedings. The competent authority later made positive reasonable-grounds and conclusive-grounds decisions. The central issues were whether the remaining challenges were academic, whether the asylum claim was properly declared inadmissible, whether detention complied with the Hardial Singh principles and applicable safeguards, and whether adequate assistance and support had been provided.

1. Ground 1. The challenge to the Regulation 33 certification was academic after the certificate was withdrawn. The court does not supervise the Secretary of State in the abstract or grant declarations concerning decisions no longer in force.
2. Ground 2. The Spanish Protocol required EU member states to be treated as safe countries of origin for asylum purposes, subject only to very unusual exceptions. The claimant’s circumstances did not approach that threshold. The VMS guidance applied to properly admissible asylum claims and did not prevent the application of the EU-specific asylum policy to an inadmissible claim. The Secretary of State was therefore entitled to declare the claim inadmissible.
3. Ground 3. An NRM referral does not automatically require release. Detention remained capable of being lawful under the Hardial Singh principles while removal remained reasonably possible. The five-working-day period for a reasonable-grounds decision in the VMS guidance was a target, not an enforceable rule whose breach automatically invalidated detention.
4. The failure to conduct the required Rule 34 examination after transfer to Yarl’s Wood rendered detention unlawful for 15 days. The competent authority’s staffing difficulties were not a sufficient justification for delay. After the positive reasonable-grounds decision, the Secretary of State had to act urgently. There was no adequate public-order justification for detention beyond 14 October 2017. The claimant was unlawfully detained for 45 days in total.
5. Ground 4. As a potential, rather than conclusively recognised, trafficking victim, the claimant was entitled to assistance under Article 11 of the Trafficking Directive and Article 12 of the Trafficking Convention. The duty required support meeting at least a subsistence standard, including appropriate accommodation, material assistance, necessary medical and psychological treatment, counselling and information. The court could consider support provided throughout the relevant period. The treatment and support supplied in detention met the minimum legal requirements; the duty did not require specialist trafficking treatment or guaranteed psychological recovery.
6. Ground 5. The evidence was insufficient to establish a systemic pattern of delay or improper prioritisation of removal. Grounds 1, 2, 4 and 5 failed. Ground 3 succeeded to the extent of 45 days’ unlawful detention. The terms of the order were reserved.