TT (Vietnam) v The Secretary of State for the Home Department

A claim may be certified as clearly unfounded only where it is rationally assessed as bound to fail. The threshold is high and requires appropriately intensive review. A finding that a person has been trafficked does not itself establish a risk on return or prevent certification. Risk of re-trafficking is fact-sensitive. Where detention was unlawful because published policies were not followed, substantive damages depend on whether the Secretary of State proves, on the balance of probabilities, that detention could lawfully have continued and would have continued. Public-order grounds may justify detention before a conclusive trafficking decision. Thereafter, detention requires very exceptional circumstances. An isolated alleged assault will not meet that standard without reliable evidence of the detainee’s role, gravity and resulting risk.

The appellant, a Vietnamese national, entered the United Kingdom illegally and was convicted of producing cannabis. After receiving notice of intended deportation, he claimed asylum and later claimed to be a victim of trafficking. His protection claims were refused and certified under section 94(1) of the Nationality, Immigration and Asylum Act 2002.

On judicial review, the High Court upheld the certification and awarded only nominal damages for immigration detention because the Secretary of State would have detained him in any event. The appeal concerned whether the certification was lawful and whether detention from 4 July to 14 September 2015 entitled him to substantive damages.

1. Disposition. The appeal was allowed in part. The certification challenge failed, and detention during the first period was justified. Detention from 18 August to 14 September 2015 was wrongful, so substantive damages were payable. Quantum was to be agreed or assessed by a Master of the Queen’s Bench Division.
2. Certification under section 94(1) of the Nationality, Immigration and Asylum Act 2002 requires a rational assessment that the claim is bound to fail. The threshold is very high, but the Secretary of State’s decision is subject to appropriately intensive review. The detailed decision letter rationally addressed the accepted trafficking history, country evidence, sufficiency of protection, the alleged pursuers’ ability to locate the appellant and the possibility of internal relocation. It therefore survived intensive review. [2016] EWCA Civ 605 was relied on for the governing principles. [2015] UKUT 160 (IAC) was instructive but fact-sensitive; it did not determine the outcome of this claim.
3. For the detention claim, the Secretary of State bore the burden of proving, on the balance of probabilities, both that detention could lawfully have continued and that it would have continued. That approach was supported by [2018] EWCA Civ 57. During the first period, the public-order ground was established by the combined effect of the serious drug conviction, high risk of absconding, risk of reoffending or harm, lack of close United Kingdom ties, immigration non-compliance and late asylum claim. The reasonable-grounds trafficking assessment was not determinative of those risks.
4. For the later period, the standard was very exceptional circumstances. The appellant’s ordinary history, criminality, immigration infractions and lack of domestic ties were insufficient by themselves. An alleged violent incident could in principle make circumstances very exceptional, but the evidence was too scant: the appellant’s role, the nature and severity of the injury, the use of weapons, the circumstances of the incident and the police evidence were unexplained. There was no charge or conviction, and the isolated incident provided too slender a basis for inferring a risk of harm to the public.
5. Victims of trafficking have no blanket immunity from prosecution. The assessment requires attention to the level of coercion and a causal nexus between trafficking and the offence. The court treated [2013] EWCA Crim 991 as fact-specific and applied the approach confirmed in [2018] EWCA Crim 1824.

• Court of Appeal (Civil Division) — On 27 February 2019, the court dismissed the certification challenge, upheld the finding that the first detention period was justified, and allowed the appeal concerning detention from 18 August to 14 September 2015. Substantive damages were awarded, with quantum to be agreed or remitted for assessment.
• High Court of Justice, Queen’s Bench Division, Administrative Court — HHJ Keyser QC upheld the certification and concluded that the Secretary of State would have detained the appellant throughout the relevant period. Nominal damages only were awarded for the conceded unlawful detention.