DA & Ors v Secretary of State for the Home Department [2020] EWHC 3080 (Admin) (13 November 2020)
In judicial review proceedings brought by an Eritrean and two Sudanese nationals who claimed to be victims of human trafficking, Fordham J held that it was strongly arguable that the Home Office had acted unlawfully in curtailing asylum screening interviews during the COVID-19 pandemic by asking applicants a narrower set of questions than those which were identified in her published policy guidance Asylum Screening and Routing Guidance (version 5, 2 April 2020). Essentially, a strong case was made out that the omission of two key questions which were specifically designed to help identify potential victims of trafficking was against the law. Fordham J therefore ordered the SSHD to ensure that those two questions – Question 3.1 “why have you come to the UK?” and Question 3.3 “please outline your journey to the UK” – were asked in interviews and that those conducting the interviews were aware of the issues and tests surrounding the risk of trafficking. DA, an Eritrean, the first claimant, had his screening interview (in person) in September 2020. On the evidence it lasted 15 minutes. His journey question (question 3.3) answer was recorded as “arrived illegally by boat on 07/09/2020”. He claimed to have said at the interview that his journey had involved transiting through Libya where he had been “imprisoned and sold”. He was detained. His protection claim was certified and he was given a notice of removal. He was only asked questions about his journey after solicitors came on record and sent a letter before claim.
There was subsequently an NRM referral which had led to a positive reasonable grounds decision. The position in relation to the second and third Sudanese claimants IH and OA was very similar except that they were both interviewed telephonically. IH’s “journey” question was left blank. He said he was “stopped” from telling the interviewer about the journey and he claimed to have been imprisoned and sold in Libya. He was detained, his claim was certified and he was given notice of removal. A letter before claim precipitated a change of approach and he had a referral and positive reasonable grounds decision. The third claimant, whose “journey question” had the same set answer of “illegal arrival”. The claimants argued that they were detained for much longer than they would have been had they been dealt with on their case lawfully. They said that the only reason why they were released and legally protected from removal, under the criteria recognised by the SSHD as applicable to individuals in their situations, was owing to the solicitors’ intervention. They also submitted that the entirety of the screening interview as set out in the SSHD’s published guidance must be followed and sought interim relief which was granted, albeit narrower and more tailored than was sought by the claimants, and the court ordered that asylum screening interviews in all cases must involve question 3.1 and question 3.3 on pages 66 and 67 of the Asylum Screening and Routing Policy Guidance (April 2020) and these questions must always be asked owing to the implications for identifying potential victims of trafficking.
The Administrative Court
Fordham J noted that the claimants sought an order by way of a direction requiring an instruction to caseworkers (i) that the test for an NRM referral to the competent authority is the one articulated at paragraph 31(1) and 33(1) of R (TDT (Vietnam)) v SSHD [2018] EWCA Civ 1395 and (ii) that “there is evidence of a particular risk to migrants of being forced into modern slavery whilst in Libya”. He granted the order and the SSHD had to confirm to the court that she had taken steps to satisfy herself that those conducting asylum screening interviews are aware of those two key points.
“Rather like a film that tells its story in ‘flashback’”, Fordham J went back to the start to flesh out in more detail the reasons why he have arrived at the order he made. The claim for judicial review challenged the practice that is taken in asylum screening interviews and its implications for identifying or not identifying potential victims of trafficking. It did so in the context of a particular group known as the “Libya Risk Group”. It recognised that the logic of its challenge extended though to everyone so far as the asylum screening interviews are concerned. An integral part of the challenge raised the question of the “risk indicator” arising out of transit through Libya and had at its core the function of applying the appropriate legal threshold of making referrals to the relevant competent authority.
(i) Unasked screening questions
As to the unasked screening questions, Fordham J found that it was strongly arguable that the SSHD had been acting unlawfully in curtailing asylum screening interviews by asking a narrower set of questions than the questions which were identified in her own published policy guidance. He held that:
9. … There is a strong prima facie case, in particular, that the omission in that interview of two questions (questions 3.1 and 3.3), which are explicitly identified in the published policy guidance as relevant to the identification at an early stage of potential victims of trafficking, is contrary to law. In my judgment these arguments are strongly arguable on the basis that this is a departure without good reason from the Secretary of State’s published policy guidance … they are also strongly arguable on the basis that there is in any event no good reason for that curtailed practice sufficient to be able to uphold it as lawful.
The court explained that there was a serious risk of injustice and irreversible harm from these questions continuing to be unasked and unanswered and resolution at the end of the day, if the claimants succeeded, would not be able to secure or remedy that injustice and harm. In particular, there were real risks that, through the absence of the asking of those questions, potential victims of trafficking who would otherwise be detected at the early stage of the screening interview would not be detected in a timely manner. While making the order would lead to operational implications for the SSHD, the real and substantial change that the asking of the two additional questions would mean was a real (substantial) protective change that was needed in the interim in the interests of justice.
The court said that it was also relevant to recognise that many, although not all, screening interviews were being conducted by telephone during the pandemic. They were running on the truncated basis at around 15 to 18 minutes long. The imposition of two questions would obviously involve additional time in the interview. There would be a knock-on effect from that additional time but Fordham J held that:
9. … In my judgment that burden is necessary and fully justified. Indeed, the fact that it is a “substantial” change in my judgment is the whole point because it is an area of enquiry – on the face of the Secretary of State’s own published policy guidance – which is of importance in the context of recognising potential victims of trafficking.
Context was important. The SSHD’s April 2020 published guidance sets out in detail the appropriate functions of the screening process. It refers to “identifying appropriate routes” for the screened individual within the asylum process, with appropriate “signposting” for “appropriate services” and “referral” for “safeguarding”, “vulnerability”, “trafficking” or “modern slavery” reasons. The obligation is to assess the possible need for intervention and signposting, including for potential victims of modern slavery.
The significance of screening is as “a framework of basic questions that should be asked of all claimants”. It is clear that the guidance expressly states that questions questions 3.1 and 3.3 are linked to indicators of trafficking.
(ii) The “abridged interview”
The new practice has been implemented since March 2020 not simply in order to respond to those arriving in small boats across the Channel but in all asylum screening cases, albeit that given the effect of the pandemic on travel routes the principal focus is on the influx of arriving or intercepted boats.
The new practice of 30 March 2020 appeared to have come to light in an indirect way by some unannounced visits to detention facilities – Tug Haven, Kent Intake Unit, Frontier House, Yarl’s Wood and Lunar House – in August 2020 where the HM Chief Inspector of Prisons found how “almost all screening interviews were [being] conducted by telephone” and that the interview process had been abridged with fewer questions being asked. The Chief Inspector’s report expressed concern by making a recommendation that “the SSHD should ensure that detainees’ vulnerability is thoroughly assessed at the earliest stage and that their identified needs are met”. In a witness statement before the court, the Head of Asylum Intake and Special Operation in Immigration Protection at the Home Office said that “currently an abridged interview which can be undertaken by telephone, in order to reduce contact time between officials and claimants for the safety of both” and “process changes have been made to reduce contact time between officials and asylum claimants depending on the circumstances of the claimant in the presence of Covid 19 symptoms to ensure that claims can be registered safely”. The official said that the abridged interview “retains the initial softer questions that may indicate whether the claimant is a victim of trafficking and the direct question in part 2 – question 2.5 [ie. the exploitation question]”. The witness statement stated that the new practice serves to “ensure that asylum claimants are screened and their biometrics captured in line with the UKVI Operating Mandate”.
Fordham J found it to be an interesting feature of the witness statement that it referred explicitly to: “The published Home Office guidance on Asylum Screening and Routing” and stated that that guidance is “clear regarding the importance of seeking to identify victims of modern slavery, including trafficking and exploitation”. He rejected numerous court submissions made by the SSHD and explained that the “published policy guidance is deliberately framed to emphasise the importance of the screening interview process”. Fordham J was unpersuaded that the “Preliminary Information Questionnaire” document required to be filled in (in English) allowing a “journey” question to be answered, for the purpose of consideration of the protection claim, went anywhere near providing a suitable protection when viewed alongside the departure from the published policy guidance. The court rejected in a wholesale manner that that safeguard, together with what was elicited from the abridged screening interview, constituted an appropriate safeguard to adequately identify any “red flag” relating to potential victim of trafficking. Fordham J was quick to reject the submission that the process characterised an “operationally legitimate hybrid process”. The court drew attention to R (NN) v SSHD [2019] EWHC 1003 (Admin) and R (Medical Justice) v SSHD [2010] EWHC 1425 (Admin) – cases where interim relief had been ordered – and Fordham J held that:
23. In my judgment, the present case is a case not only of ‘serious risk of irreparable harm’, but of ‘deprivation of an opportunity’; it has an impact which although more than minimal is in my judgment not over-intrusive given the circumstances and implications; it is a case that involves giving primacy, at least at the interim stage, to the relevant instrument: that instrument is the April 2020 published guidance document which deals with screening interviews and their importance and function so far as questions relating to potential victims of trafficking are concerned.
25. … My order for interim relief does no more than hold those decision-makers to two key questions that are currently unasked but which are contained in the published guidance. It also ensures that the Secretary of State can satisfy herself, and this Court, that decision-makers are aware of two important uncontentious points, to which I now turn.
26. So, I turn finally to those two uncontentious points. In my judgment, it is strongly arguable on the evidence before this Court that something has gone wrong, at least in the ‘Libya Risk Group’ cases, so far as the screening interview and referrals are concerned. In my judgment, the balance of convenience and justice strongly supports this Court ensuring that it has the confidence that the Secretary of State no doubt expresses, namely that decision-makers are aware of the substance of the relevant legal test for a referral and secondly that they are aware of the risk recognised by the Secretary of State so far as Libya is concerned. There is no question of requiring the communication of any contentious point.
Next, Fordham J provided details of his order.
(iii) Order
The SSHD had to ensure as soon as possible, at the latest by 16:00 Monday 16 November 2020, that Asylum Screening Interviews in all cases had to involve the asking of question 3.1 and question 3.3 as set out in the policy guidance. She also had to confirm to the court by 16:00 on 16 November 2020 that she had taken steps which satisfied her that those conducting asylum screening interviews were aware that (a) the test for an NRM referral to the Single Competent Authority was “any suspicion” that a person had been trafficked, as set out at paragraphs 31(1) and 33(3) of R (TDT (Vietnam)) v SSHD [2018] EWCA Civ 1395, and (b) there is evidence of a distinct risk to migrants of being forced into modern slavery while in Libya. Among other things, Fordham J ordered that a rolled-up hearing should be listed to determine the application for permission to apply for judicial review and, if granted, the substantive claim for judicial review on 16-17 December 2020 with a time estimate of two days.
Comment
Despite this judgment, the Home Office is rushing to deport large numbers of vulnerable asylum seekers, including suspected victims of trafficking, in violation of the published Asylum Screening and Routing Guidance. Those who are being deported say they have not been properly screened and have not been asked the two key questions: “Why have you come to the UK’? and “Please outline your journey to the UK?”
Three flights were reportedly planned this week, “two to Germany and one to France, with possible transfers to Austria, Poland, Spain and Lithuania” and the flights were networked under the Dublin III Regulation by which the UK is bound until 31 December 2020 and it will not be able to run such flights unless a new agreement is reached. Campaigners are very concerned that the Home Office is acting under the cover of Covid and Brexit and is breaching the legal rights of some of the most vulnerable people in the world.
The home secretary, Priti Patel, has been found to have breached the ministerial code as a result of her bullying of Home Office officials. She has set an extremely poor example of how a responsible minister should behave. Along with her boss Boris Johnson, Patel has attacked “lawyer activists” and “lefty lawyers” and they are creating a toxic and hateful environment and the UK’s top judge Lord Reed is of the view that “there’s no question of people being activist simply because they’re doing their job”. Lord Reed cautioned Patel and Johnson that “It’s important that people are careful in the language that they use.”
Jonathan Jones QC, who resigned as the head of the Government Legal Department amid the ongoing controversy over the UK breaching the Withdrawal Agreement by the terms of United Kingdom Internal Market Bill, said that attacking so-called activist lawyers are “crass as well as damaging”. He said that:
If the government loses a case (following any appeal etc where relevant) it’s because it got the decision wrong. How can that be the “fault” of the lawyers bringing the case?
Patel has also come under fire for labelling campaigners who tried to stop last week’s deportation flight to Jamaica to be stopped as “do-gooding celebrities”. Her obnoxious behaviour has deeply irritated the victims of Windrush who have characterised her as “deeply insulting and patronising”. It is high time Priti Patel is removed from the Home Office because she is the worst choice ever for the testing job of home secretary.
In another significant judgment, in EOG (Anonymity Order Made) v SSHD [2020] EWHC 3310 (Admin), Mostyn J held that there is an unlawful lacuna in official policy inasmuch as it fails to implement the obligation laid down in article 10.2 of the Council of Europe Convention on Action against Trafficking in Human Beings 2005 (ECAT) formally to protect those persons in receipt of a positive reasonable grounds decision from removal from the UK’s territory pending the conclusion of the process. He said that tolerating such persons as overstayers, or as illegal immigrants, does not fulfil the obligation. Mostyn J said that the SSHD must formulate a policy that grants such persons interim discretionary leave on such terms and conditions as are appropriate both to their existing leave positions and to the likely delay that they will face. It was not for him to prescribe what such terms and conditions should be and he agreed with the SSHD that constitutionally that is a matter reserved to her. The court said that the terms and conditions must obviously be lawful meaning that someone, who has a time-limited right to work, should not have the arbitrary consequence of a removal of that right meted out to them simply by virtue of the delays that they are likely to face. This is undoubtedly yet another example of the SSHD failing victims of human trafficking.
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