Lord Justice Aikens :
I. The nature of the claim
- This claim for judicial review concerns the trafficking of human beings, in this case a young Nigerian girl who is now an adult. In essence the principal claim raises the question: what is the extent of the Secretary of State's obligations in respect of a person who was the subject of human trafficking to the UK and in the UK (which I will refer to simply as "trafficking"), but who was then able to escape her servitude and who has, comparatively speaking, lived a more normal life since then. The principal attack by the claimant is upon the decision made on behalf of the defendant ("the SSHD") on 17 February 2011 ("the National Referral Mechanism decision" or "NRM Decision") that the claimant, was, by then at least, not the victim of trafficking and the SSHD's concomitant decision that she was under no legal obligations to give protection and assistance to the claimant as an "historical" victim of trafficking.
- The case has a further element. The claimant, a citizen of Nigeria, sought asylum in the UK or, alternatively, the right to remain in the UK on humanitarian or human rights grounds. But on 1 February 2011 the SSHD certified the claimant's claims as "clearly unfounded" ("the Certification decision"), pursuant to section 94 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"), with the result that the claimant would be removed to Nigeria and that she would have the right to bring any appeal against this certification decision only from outside the UK. The claimant was detained from 2 June 2011 until 19 August 2011 to facilitate her removal from the UK and she was removed to Nigeria on 19 August 2011. By the time of her removal her brother was in the UK and it appears she had a boyfriend in the UK. She also had a social network support in the form of church and other social contacts in the UK.
- As a result of permissions granted by Sir Richard Buxton and Sullivan LJ, the claimant now seeks the following relief in her claim for judicial review:
1. An order quashing the NRM decision of 17 February 2011 that the claimant is not a victim of trafficking and declarations that she is a victim of trafficking and that her rights under Article 4 of the European Convention on Human Rights ("ECHR") have been breached;
2. An order quashing the Certification decision of the SSHD of 1 February 2011 and a declaration that the claimant has an "in-country" right of appeal against the SSHD's decision to reject the claimant's asylum, humanitarian and human rights claims to remain in the UK;
3. A mandatory order that the SSHD uses her best endeavours to secure the return of the claimant to the UK from Nigeria;
4. An order that the SSHD grant the claimant 1 year's leave to remain in the UK in line with the SSHD's policy applicable to victims of trafficking who wish to take part in the police investigation of their case; and
5. Damages for breach of the claimant's Article 4 rights and for unlawful detention pending her removal to Nigeria.
II. The claimant's history.
- Uyi Favour Atamewan, whom I shall refer to as the claimant, was born in Ebelle village, Edo State, Nigeria, on 26 April 1989. At all times she has been a citizen of Nigeria. When she was four years old she was sent by her parents to live with Julie James at Kangi Dam, Niger State. Julie was described as the claimant's "aunt" but it is not known whether she is related to either of the claimant's parents. Julie treated the claimant as an unpaid servant. The claimant was frequently and severely abused as a child when living with Julie, including being cut with a razor. The claimant has numerous scars in multiple places on her body: her back, thighs, breasts, upper arm and legs. Julie sent the claimant to do washing for a Brigadier, who raped the claimant on more than one occasion. The claimant tried to run away but was unsuccessful.
- When the claimant was 15 she was sent by Julie to Lagos to stay with Rachel Iyamabo, who was a retired Assistant Inspector General of Police in Lagos. This woman was described to the claimant as Julie's relative but it is not known whether that is, in fact, the case. Whilst in Lagos the claimant was told that she would be sent to the UK to live with and work for Rachel's daughter, Beatrice Hodgson, and that she would go to school in the UK.
- The claimant travelled to the UK in March 2005 with Rachel, who was by then in a wheelchair as a result of a serious car accident in Lagos. Rachel paid for and organised the journey, including the necessary visa for the claimant. The SSHD has confirmed that a visitor's visa was issued to the claimant on 29 September 2004. The claimant did work for Beatrice Hodgson after her arrival in the UK. This involved looking after Beatrice's children and doing housework for long hours. The claimant did not attend school, although she did attend one evening course on IT after pestering Beatrice continually because of the lack of school as had been promised. The claimant said that Beatrice beat her twice. Other than pocket money totalling £100, the claimant was not paid for any of her work.
- When the claimant was 18 she saw a text message indicating that Beatrice wanted another girl to replace the claimant, who then decided to run away. This was in about December 2007. Initially the claimant stayed with a male friend of a "cousin" and another man, but she was subjected to frequent sexual advances and abuse and so she left. Thereafter for three years the claimant had no fixed abode. She worked informally doing hairdressing and cooking so as to earn enough money to survive. Beatrice had told the claimant that she could not report her position to the police because they would arrest her and send her back to Nigeria and would do nothing for her because she was not a British citizen. So the claimant did not contact the police.
- The claimant twice contacted Beatrice after running away and asked for her passport. That was not sent to her and Beatrice told her not to contact either her or the police. In one of these conversations Beatrice said that her mother, Rachel Iyamabo, had died.
- On 6 January 2011 the claimant went to the Peterborough Women's Centre and explained her story. An appointment was made with the Immigration Advisory Service and the claimant claimed asylum on 7 January 2011. She was screened at the ASU in Croydon. In interview she recounted her version of events in Nigeria and in the UK. She said that the mother of her "aunt" had brought her to the UK and was a "retired AIG officer in the Nigerian Police". She provided the full address of her "aunt" in Peterborough.
- On 13 January 2011 an NHS Urgent Care 24 health assessment of the claimant took place. It records that the claimant had a history of depression. It also states that there was "extensive scarring and skin colour changes consistent with reports". A diagram of the scarring was made.
- The claimant's full asylum interview took place on 19 January 2011. She recounted the abuse she had suffered in her childhood in Nigeria and explained how and why she came to the UK. She confirmed that she had never had control of her passport. She explained why she did not want to return to Nigeria. First, because of her bad experiences of the past; secondly, because of "the religion"; thirdly, she feared isolation and abuse there; fourthly, she had no money and no qualifications so there was no likelihood of being able to obtain work there; fifthly, she feared that she might be kidnapped if she returned.
- At the end of the interview the case worker noted that there were indications that the claimant had been trafficked to the UK. On 25 January 2011 an NRM referral form was completed with the claimant's consent.
III. The Certification decision and the NRM Decision
- The Certification decision of 1 February 2011 on behalf of the SSHD did not raise any credibility issues about the claimant's story. However, it stated that the claimant had not established a well-founded fear of persecution on a Convention ground. The decision also concluded that there was adequate protection in Nigeria; alternatively that the claimant could, if necessary, relocate internally within Nigeria.
- The claimant was not interviewed before the NRM Decision was made. However the decision maker did have available a letter from the Peterborough Women's Centre, the report of NHS Urgent Care 24, the claimant's Asylum Interview and her Screening Interview.
- The NRM Decision concluded:
"Although it is accepted that Ms Atamewan was brought to the UK and then exploited by her aunt for domestic servitude, it is considered that the exploitation ended in December 2007 when Ms Atamewan absented herself from her aunt's home. She has had minimal contact with her aunt since then, and her aunt has shown no interest in trying to trace Ms Atamewan. Ms Atamewan has moved on with her life since leaving her aunt, she has formed friends and had a relationship during the three years at liberty in the UK and has found casual work when needed to support herself. It is therefore considered that there is sufficient distance in time since the period of exploitation such that Ms Atamewan is no longer considered to be a victim of trafficking in need of protection under the Convention".
IV. The present proceedings and subsequent investigations
- There were abortive attempts by the claimant to prevent her removal from the UK on 19 August 2011 by issuing an application for judicial review of both the Certification decision and the NRM Decision. On that day the claimant's present solicitors, Wilsons, were instructed. Then on 16 September 2011 Wilsons lodged an "out of country" appeal in respect of the asylum claim with the First Tier Tribunal ("FTT"). Then on 31 October 2011 an Amended Statement of Facts and Grounds in the judicial review proceedings were lodged, seeking the declarations and other relief identified at [3] above.
- In the meantime, on 6 October 2011 Wilsons wrote to the NRM Decision maker, Mr Terry Farrell, requesting information about the steps taken (if any) following the finding that the claimant had been trafficked to the UK. In particular Wilsons asked whether her case had been referred to the police. On 13 October 2011 the claimant instructed Wilsons to make a report of her case to the UK police. On 21 October 2011 Wilsons wrote to the Cambridgeshire Constabulary enclosing the appropriate referral form and the NRM Decision and requested the police to start an investigation into the crimes that had been committed against the claimant. The referral form gave Beatrice's full name, that of her husband and their address in Peterborough and an account of the claimant being trafficked into the UK. It noted the connection with the Nigerian police and the fact that it was believed that there might be a plan to bring another girl to the UK. On 26 October 2011 Police Sergeant Shaw of Cambridgeshire police made a telephone call to Wilsons, asking of the whereabouts of the claimant so he could interview her. When told that she had been removed to Nigeria he said that it would therefore be difficult to start any investigation into her case.
- On 31 October 2011 Wilsons wrote to Cambridgeshire police again, enclosing the claimant's asylum interview, an article which verified the claimant's account of Rachel Iyambo being a retired AIG of police in Nigeria and the fact that Rachel had been involved in an accident, all as described by the claimant. Wilsons also sent a print out that confirmed that Beatrice had been resident in Peterborough at the relevant time and stating also that Rachel Iyamabo was registered as being of the same address.
- Cambridgeshire police replied in a letter dated 16 January 2012. This stated that all the information that had been supplied had been "reviewed and researched by ourselves and relevant partner agencies". The letter stated that the police did not intend to pursue a criminal investigation in relation to the allegations "due to their historical nature, lack of corroborative evidence and unrealistic prospect of conviction". The information would, however, be recorded on police records.
- On 30 January 2012 the application for permission to seek judicial review was refused on paper by Charles George QC sitting as a Deputy High Court Judge. The renewed application was rejected by Mr John Bowers QC sitting as a deputy High Court Judge on 3 May 2012, after an oral hearing. On 4 October 2012 Sir Richard Buxton gave permission to appeal the refusal to grant permission to pursue judicial review proceedings in respect of the Certification decision and he granted permission to pursue judicial review in respect of that decision. After a renewed oral application before Sullivan LJ on 18 February 2013, permission to appeal was granted and he also granted the claimant permission to apply for judicial review in respect of the NRM Decision and the remaining matters referred to in [3] above.
- The case was argued before us on 22 and 23 May 2013 and we reserved judgment.
V. The Council of Europe Convention on action against human trafficking and the UK's implementation of it in particular by the "Guidance to Competent Authorities".
- The Council of Europe Convention on Action against Trafficking in Human Beings ("CAT") was signed in Warsaw on 16 May 2005. Article 1 sets out the purposes of the Convention and paragraphs (a) and (b) are important in the context of the present case. They provide that its purposes are:
"(a) to prevent and combat trafficking in human beings, while guaranteeing gender equality;
(b) to protect the human rights of the victims of trafficking, design a comprehensive framework of the protection and assistance of victims and witnesses, while guaranteeing gender equality, as well as to ensure effective investigation and prosecution".
- Article 4 of CAT sets out various definitions, including, under sub-paragraph (a), "trafficking in human beings", the fact that the consent of a "victim" of trafficking in human beings is irrelevant if any of the means identified in (a) have been used; and, at subparagraph (c), the statement that:
"…the recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered "trafficking in human beings" even if this does not involve any of the means set forth in subparagraph (a) of this article".
Subparagraph (d) stipulates that "child" means any person under 18 years of age and subparagraph (e) states that a "victim" shall mean any natural person "who is subject to trafficking in human beings as defined in this article". The full wording of these definitions is set out in Appendix One to this judgment.
- Chapter III of CAT is entitled "Measures to protect and promote the rights of victims, guaranteeing gender equality". Article 10, the first article in that chapter, is headed "identification of the victims". This stipulates that parties to the Convention "shall provide its competent authorities" with persons who are trained in "identifying and helping victims". It also provides that each of the contracting parties will "ensure" that the different authorities in that country shall "collaborate with each other as well as with relevant support organisations, so that victims can be identified in a procedure duly taking into account the special situation of women and child victims and, in appropriate cases, issued with residence permits under the conditions provided for in Article 14…". The full wording of this paragraph is set out in Appendix One to this judgment.
- Article 10(2) is central to the claimant's case in relation to the NRM Decision, so I set it out here, as well as in Appendix One.
"Each Party shall adopt such legislative or other measures as may be necessary to identify victims as appropriate in collaboration with other Parties and relevant support organisations. Each Party shall ensure that, if the competent authorities have reasonable grounds to believe that a person has been the victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence provided for in Article 18 of this Convention has been completed by the competent authorities and shall likewise ensure that that person receives the assistance provided for in Article 12, paragraphs 1 and 2."
- Article 10 paragraph 2 therefore contemplates that the "competent authorities" of a state that is a party to CAT will, as a first stage of "identification of victims", consider the case of a person who claims to be the victim of trafficking and determine whether there are "reasonable grounds" to believe that the person concerned has been the victim of trafficking. If the competent authorities decide that there are such reasonable grounds then this paragraph contemplates that the person will not be removed from that territory until the identification process "as victim of an offence provided for in Article 18" is complete. At the same time, if the competent authorities conclude that they have "reasonable grounds" to believe the person is the victim of trafficking, they have to ensure that the assistance referred to in Article 12 of CAT is provided. The second part of the "identification process " referred to in Article 10(2) is, as was common ground, a conclusive process.
- Article 12 is headed "Assistance to victims". This stipulates that each contracting Party "shall adopt such legislative or other measures" as may be necessary to assist victims (as defined) "…in their physical, psychological and social recovery". It states that such assistance shall include "at least": standards of living capable of ensuring their subsistence; access to emergency medical treatment; translation and interpretation services where appropriate; and counselling and information "in particular as regards their legal rights and the services available to them in a language that they can understand," as well as other matters. The full wording of Article 12(1) is set out in Appendix One.
- Article 13 is also central to the claim in respect of the NRM Decision, so I set it out here as well as in Appendix One.
"1. Each Party shall provide in its internal law a recovery and reflection period of at least 30 days, when there are reasonable grounds to believe that the person concerned is a victim. Such a period shall be sufficient for the person concerned to recover and escape the influence of traffickers and/or to take an informed decision on co-operating with the competent authorities. During this period it shall not be possible to enforce any expulsion order against him or her. This provision is without prejudice to the activities carried out by the competent authorities in all phases of the relevant national proceedings, and in particular when investigating and prosecuting the offences concerned. During this period, the Parties shall authorise the persons concerned to stay in their territory.
2. During this period, the persons referred to in paragraph 1 of this Article shall be entitled to the measures contained in Article 12, paragraphs 1 and 2.
3. The Parties are not bound to observe this period if grounds of public order prevent it or if it is found that victim status is being claimed improperly."
- Article 14 deals with a victim's right to a resident permit. Contracting Parties are obliged to issue a renewable resident permit to a victim in one of two situations: (a) where the competent authority considers that the victim's stay is "necessary owing to their personal situation"; or (b) where the competent authority considers that their stay is "necessary for the purpose of their co-operation with the competent authorities in investigation or criminal proceedings". However, Article 14(3) stipulates that the non-renewal or withdrawal of a residence permit is subject to the conditions provided for by the internal law of the country concerned. The full wording of Article 14(1) and (3) is set out in Appendix One to this judgment.
- Article 15 is headed "compensation and legal redress". This article obliges contracting Parties to ensure that victims have access to information about relevant judicial and administrative procedures. It stipulates that Parties must ensure that victims of trafficking have the same rights to legal assistance and "free legal aid" as is otherwise provided for by the law of the country concerned. Contracting Parties have to ensure that they adopt "such legislative or other measures as may be necessary to guarantee compensation for victims in accordance with the conditions under its internal law". The full wording is set out in Appendix One.
- Article 16 deals with repatriation and the return of victims. Article 16(2) is important in the present case. It provides that when a Contracting Party returns a victim to another state, such return "shall be with due regard for the rights, safety and dignity of that person and for the status of any legal proceedings related to the fact that the person is a victim…". The return should preferably be voluntary.
- Chapter IV, is headed "Substantive Criminal Law". Article 18 deals with the criminalisation of trafficking of human beings. It stipulates:
"Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct contained in article 4 of this Convention, when committed intentionally".
- Chapter V is headed "Investigation, prosecution and procedural law". Article 27(1) states:
"Each Party shall ensure that investigations into or prosecutions of offences established in accordance with this Convention shall not be dependent upon the report or accusation made by a victim, at least when the offence was committed in whole or in part on its territory".
- There is an Explanatory Report to CAT which was agreed by the Contracting Parties at the same time as the Convention itself. This was referred to at the hearing before us, in particular those paragraphs that discuss the definition of human trafficking. Paragraph 87 of the Explanatory Report states:
"Under the definition, it is not necessary that someone [should] have been exploited for there to be trafficking in human beings. It is enough that they have been subject to one of the actions referred to in the definition and by one of the means specified "for the purpose of' exploitation. Trafficking in human beings is consequently present before the victim's actual exploitation".
- We were referred to a number of further paragraphs in the Explanatory Report which discuss the provisions in Articles 10, 12, 13 and 14 of CAT, in particular paragraphs 99, 127, 131, 132, 135, 146, 147, 148, 159, 160, 173, 174, 177 and 181 of the Report. These are reproduced in Appendix Two to this judgment.
- The UK signed CAT in March 2007 and ratified it on 17 December 2008. It came into force in the UK on 1 April 2009, although there has been no national legislation to give legal effect to it. Instead, the UK's international obligations under CAT have been implemented by the adoption of procedures and policies by government ministers responsible, the most important of which is the Secretary of State for the Home Department. Thus, as part of the UK implementation of CAT, a National Referral Mechanism (NRM) was established on 1 April 2009. This contains two elements. First, a "multi-agency Competent Authority" which is based in the UK Human Trafficking Control Centre ("UKHTCC"). This acts as a central point of contact for all bodies (such as the police, local authorities etc) that are likely to encounter victims of trafficking. The second element consists of linked but separate Competent Authorities to deal with situations where trafficking is raised as part of an asylum claim or in the context of other immigration processes. One Competent Authority, which deals with non EU and EEA nationals, is based within what was the UK Border Agency ("UKBA"), although it is now based within the Home Office.
- The first aim of the NRM is to identify victims of trafficking. The second aim of the NRM is to enable there to be better co-operation between the various bodies involved in relation to potential trafficking victims and to facilitate access by victims to advice, accommodation and support.
- As part of the UK implementation of CAT, the SSHD has issued a policy document called "Guidance to the Competent Authorities" ("the Guidance"). The present version was issued in 2010. The Guidance says that it has three aims: to ensure that the rights of trafficking victims are protected; to combat trafficking and to promote international co-operation. It is designed to provide assistance to the public and voluntary bodies that become involved in trafficking cases.
- The Guidance outlines the process that is to be undertaken from the moment it is suspected that a person may be the victim of trafficking. At page 20, under the heading "Reasonable grounds consideration" it explains that CAT has a two stage process for identifying victims of trafficking in which the "reasonable grounds" test acts as an initial filter which may lead to a fuller, more conclusive decision. The Guidance stipulates that once a "competent authority" (which could be UKBA but not necessarily) has received a "referral", it has to apply a "reasonable grounds" test to decide "whether a person is a victim of trafficking". It explains that the "reasonable grounds" test has a low threshold. It explains this in the following paragraph:
"The test that should be applied is whether the statement "I suspect but cannot prove" would be true and whether a reasonable person would be of the opinion that, having regard to the information in the mind of the decision maker, there were reasonable grounds to believe the individual concerned had been trafficked. Reasonable suspicion can never be supported on the basis of personal factors alone (eg the appearance of the suspected victim) without reliable supporting intelligence or information or some specific behaviour by the person concerned. It should normally be connected to precise and up to date intelligence/information".
- On page 21 of the Guidance, it is emphasised that the "reasonable grounds" decision has consequences for the person in terms of protection and a potential further stay in the UK, so that the decision must be of the "highest possible standard". The Guidance then sets out assistance on how to tackle issues such as credibility of the person referred for the purpose of arriving at the "reasonable grounds" conclusion.
- In the Guidance at page 23-24 there is then a heading: "When trafficking is distant in time/historic claims". This paragraph is central to the claimant's challenge to the SSHD's NRM decision, so I will set it out here in full.
"Very few trafficked persons are still in a trafficking situation at the time of referral into the NRM because in order to be referred they must have escaped or been rescued from the trafficking environment. Many victims will continue to suffer the effect of their ordeal long after they have left it. A gap between the trafficking situation and referral should therefore be seen as normal and is not in itself reason to conclude that an individual should not be treated as a victim.
But there may be instances where a Competent Authority believes someone may have been a victim of trafficking, but at the time their case is referred, concludes on the facts of the case that person is no longer in need of the protection or assistance offered under the Convention because the individual's circumstances have changed so much since the trafficking occurred. A negative decision in such cases would not be denying that someone may have been a victim of trafficking in the past, simply that at the time of assessment they did not meet the Convention criteria or need the protection or assistance that it can afford.
There are a number if factors that may be relevant to consider when deciding whether a person can be considered to be a victim for the purposes of the Convention at the point that the case was referred to a Competent Authority for a decision. The Convention and explanatory report are vague as to the application of timeframes of the constituent elements of trafficking when considering eligibility. However, it is usual policy and practice for the provision of services for victims of crime to be based on an assessment of individual need. Therefore as one of the aims of the Convention is to offer protection to victims it is appropriate to consider if the person needs protection or assistance under the Convention at the time that the referral is made.
Based on an assessment of the individual circumstances of the case it may be reasonable to conclude that where a person has been free from their traffickers for a long period of time and has recovered and moved on with their life, then they no longer require the protection afforded by the Convention. Support for this approach is provided by considering the rationale for the provision for a recovery and reflection period for victims as ser out in Article 13 of the Convention and as expanded upon in the explanatory report to the Convention.
It is relevant to consider whether:
i. the person was under influence (either directly or indirectly) of traffickers at the point at which they came to your attention;
ii. the person requires a period to recover from the influence of traffickers;
iii. the person has suffered physical or emotional wounds from the trafficking experience and requires time to recover;
iv. the person requires a period of time in which to decided whether to co-operate with the authorities in respect of a trafficking related criminal investigation.
This is intended to be an illustrative list of factors. It is not exhaustive and it will be necessary to consider all of the person's circumstances in the context of the general spirit of the Convention at the time a case is referred into the NRM. It may be the case that if only one of these factors is present the person will need the protection of the Convention and that should be reflected in the decision.
In cases where there is police or support provider involvement, the Competent Authority will need to consult with these parties to get a full picture of the person's circumstances."
- On page 25 of the Guidance, under the same general heading of "Reasonable Grounds Consideration", it is stated that this "policy" is intended to assist "case owners" in determining whether "there are reasonable grounds to believe someone is[1] a victim in need of the Convention's protection. It is only likely to be relevant in cases where significant time has elapsed since the trafficking offence occurred and the circumstances of the individual have changed considerably". The final two paragraphs on page 25 state:
"This policy is principally for application at the reasonable grounds stage. It should only be applied at the conclusive grounds stage if further evidence has come to light to suggest that at the time of referral the person had moved on/been free from their traffickers for longer than originally thought, or where in light of the further evidence it is acknowledged that Convention obligations should not have been triggered at the reasonable grounds stage. This could be because for example the individual has since acknowledged in an interview that they are not a victim of trafficking.
Competent Authorities will need to take into account Article 15 of the Convention which deals with the right of victims to compensation from the perpetrators. The fact that someone is seeking compensation or has received compensation will be relevant to the consideration but does not in itself merit victim status. What redress is being sought; the type of grounds and how credible the claim is should be taken into account."
- If it is decided that there are reasonable grounds to believe that someone is a victim of trafficking then the UK has stipulated that there should be a 45 day "recovery and reflection" period, rather than the 30 day period referred to in Article 13 of CAT.
VI. The Anti-Trafficking Monitoring Group analysis of UK measures (2010) ("the ATMG analysis") and the Council of Europe Group of Experts on Action Against Trafficking Report ("GRETA report") on the UK's implementation of CAT (2012).
- The claimant drew our attention to these two documents in support of her case concerning the NRM Decision. The Anti-Trafficking Monitoring Group was set up in May 2009. It consists of nine UK – based organisations and it aims to monitor the UK's implementation of CAT and to comment on whether it is complying with CAT. The analysis, dated June 2010, is intended to analyse the first year of the UK's implementation of CAT. In chapter 4 ("the NRM in practice"), there is a section on "Interpretation of who is a 'victim of trafficking'". It states that there have been a number of decisions of "Competent Authorities" along the lines that it was accepted that the person concerned had been trafficked to the UK but the Competent Authority did not accept that the person "currently qualified as a 'victim' of trafficking for the purposes of CAT". The ATMG Analysis comments that such conclusions are "clearly contrary to [CAT]".[2] It states further that under CAT, anyone who has been the victim of trafficking is a victim and "the treaty does not place any time limits with regards to the occurrence of the crime of trafficking;" rather it places emphasis on the moment and process of identification.[3] The report suggests that any policy which restricts the definition of 'victim of trafficking' to those who, when identified, fall under various categories, is not consistent with CAT.[4]
- GRETA is composed of 15 independent and impartial experts who were selected for their recognised competence in the fields of human rights, assistance and protection of victims and action against trafficking or because of their professional experience in the areas covered by CAT. In the third section of the GRETA Report of 2012, which is entitled "Implementation of [CAT] by the UK", there is a sub-section, starting at paragraph 79 of the report, entitled "Definition of Trafficking in Human Beings." Paragraph 82 of the report notes that individual decisions of Competent Authorities of the UK state whether or not the person concerned was a victim of trafficking "for the purposes of [CAT]" and that the UK authorities had explained to the expert group that the wording was used to differentiate such persons from "historic" victims who had been exploited in the past but who no longer needed assistance and protection. According to the report, the expert delegation was told that this distinction was based on the definition of victim in CAT that a person "is" subjected to trafficking as opposed to someone who "was" subjected to it in the past.
- The report then considers the section in the UK Guidance (which I have referred to above) entitled "When trafficking is distant in time/historic claims" and cites a decision of the Administrative Court to which we were also referred: R(on the application of Y) v Secretary of State for the Home Department,[5] (hereafter "the Y case") in which Mr Philip Mott QC, sitting as a Deputy Judge of the High Court, concluded that CAT clearly envisaged that "victim status, in the sense of someone requiring [Convention] assistance and protection, may be time- limited, but that the time will vary from case to case" and that CAT required consideration of the "victim's" current status at the "Reasonable Grounds" decision stage. [6]
- The GRETA report expresses concern at an interpretation of "victim" whereby "the time elapsed since the ending of a situation of exploitation and a presumed diminished urgency in needs for social assistance or protection are used as key considerations in victim identification". In the opinion of GRETA, "decisions on the different rights and entitlements according to [CAT] must be taken on a case-by-case basis regardless of the time lapsed [sic] and the existence of urgent needs for assistance".[7] GRETA urged the British authorities to "revisit the Guidance given to Competent Authorities in so-called 'distant in time/historic cases' with a view to ensuring that all victims of trafficking are identified as such and have access to the measure included in Articles 11,12,13, 14, 15, 16, 26 and 28 of [CAT]".[8] The UK has responded to this report and has relied on the decision in the Y case to support its interpretation of Articles 4 and 10 of CAT.[9]
VII. The EU Directive 2011/36/EU of 5 April 2011 on preventing and combatting trafficking in human beings and protecting its victims ("the EU Trafficking Directive").
- Although the EU Trafficking Directive came into force on 5 April 2011, the UK only "opted into" it on 14 October 2011.[10] Therefore, so far as the UK is concerned, this Directive was not in force at the time of either of the decisions under challenge in these proceedings. But the claimant submits that its terms are relevant and of assistance. We were referred to a number of the paragraphs in the preamble to the Directive and, in particular, paragraph 18, which is reproduced in Appendix Three to this judgment. The claimant relied on the terms of Article 11 (1), (2), (5) and (6), which is headed "Assistance and support for victims of trafficking in human beings". It sets out, in general terms, that Member States should "take the necessary measures" to ensure that victims are provided with assistance and support "as soon as the competent authorities have a reasonable-grounds indication for believing that the person might have been subjected to any of the offences referred to in Articles 2 and 3 [of the Directive]".
VIII. The arguments of the parties
- Ms Phillippa Kaufmann QC, representing the claimant, submitted in relation to the NRM Decision that the Guidance represented (at least in part) the UK's implementation of CAT by setting out various matters of UK government policy. The Guidance, in setting out policy, had to be consistent with the correct interpretation of CAT, in particular Articles 4 and 10(2).[11] The NRM decision was unlawful because it relied on the phraseology in the passage in the Guidance headed "When Trafficking is distant in time/historic claims". Ms Kaufmann submitted that this part of the Guidance was itself based on a misinterpretation of Articles 4 and 10(2) of CAT. Ms Kaufmann submitted that Article 10(2) of CAT is clear: the first question that the "Competent Authorities" of a state have to answer is whether they have "reasonable grounds to believe" that the person concerned has been "the victim of trafficking in human beings". The phrase "trafficking in human beings" and the word "victim" are defined in Article 4(a) and (e) respectively of CAT. Ms Kaufmann submitted that there is nothing in either Article 4 nor 10(2) to indicate that a "Competent Authority" has to determine whether a person who has been the victim of trafficking is, at the time of the "reasonable grounds" decision, still in need of "the protection or assistance offered under [CAT]".[12] Ms Kaufmann further submitted that, on the true interpretation of CAT, the scheme was to decide whether there were "reasonable grounds" to believe the person concerned was a victim of trafficking and, if so, then to use the "recovery and reflection" period stipulated in Article 13 to assess the needs of that person. At the same time the person will be able to make an "informed decision" on whether to co-operate with the Competent Authorities.[13] During this time the Competent Authorities have to provide the assistance to "victims" set out in Article 12 of CAT.
- Ms Kaufmann submitted that the decision of Mr Philip Mott QC, sitting as a Deputy High Court Judge, in the Y case[14] is wrong. In that case the SSHD had issued a decision letter on 14 December 2009, which was made at the "reasonable grounds" stage, stating that the claimant was not the victim of trafficking. Two reasons were given. The second and relevant one for present purposes was that the claimant, even if she had been the victim of trafficking, had had ample time for reflection and recovery, had moved on with her life and was no longer a victim of trafficking within the terms of CAT. The Deputy Judge held, at [50], that CAT, "far from prohibiting the consideration of current circumstances at the Reasonable Grounds stage, implicitly requires that consideration to take place in order to comply with the duties under Articles 12 and 14".
- Ms Kaufmann further submitted that the Guidance was unlawful in that it did not clearly recognise that the state (and so the Home Department and UKBA) had additional duties, even in the case of "historic" trafficking, pursuant to Articles 12 to 14 and 18, to enable a victim to make an "informed decision" on whether or not to co-operate with the authorities in particular in relation to investigations leading to criminal proceedings. The duties thereby imposed on the SSHD and the Competent Authorities necessitated ensuring: that the person knew the conduct to which she had been subjected was a crime; that the state was under a duty to conduct an effective investigation and that if the person responsible was identified he/she could be prosecuted; that support (as envisaged in Article 12 of CAT) could be provided to the victim; that reasonable measures would be taken to overcome a victim's lack of trust in the authorities (including the police); and that the person knew she could take proceedings for compensation. In addition, it was submitted that the Competent Authority had a duty, under Article 4 of the ECHR, to take steps to bring to the attention of the police any credible allegation made concerning trafficking or other ill-treatment which was contrary to Article 4, even in cases of "historic" trafficking, so that the police could conduct an effective investigation. Insofar as the Guidance implicitly stated that this was not needed in cases of "historic" trafficking, it must therefore be unlawful. It was also submitted that the SSHD had, in this case, been in breach of her positive obligations under Article 4 to instigate investigation by the police. Reliance was placed on the decision of Wyn Williams J in OOO v Commissioner of Police for the Metropolis.[15]
- Ms Kaufmann therefore submitted that the NRM decision was unlawful because it wrongly concluded that: (a) the claimant was not a "victim of trafficking" for the purposes of CAT; (b) the claimant did not require any assistance towards making an "informed decision" to co-operate with the authorities, in particular in relation to any investigation of criminal proceedings; (c) there was no duty to permit the claimant to stay in the UK and/or provide her with a residence permit for that purpose; and (d) in the circumstances the claimant required no assistance or protection under CAT.
- In relation to the Certification Decision, Ms Kaufmann submitted that the facts in this case were not in dispute. Therefore, this court had to decide whether the decision of the SSHD to certify that the asylum claim was "clearly unfounded" was, itself, irrational. That has to be decided on established judicial review principles: but in practice the court will ask itself: is this claimant's case for asylum bound to fail in the Immigration Tribunal?[16] Ms Kaufmann submitted that the clear answer in this case is "no". Ms Kaufmann submitted that it was plainly arguable that the claimant was at risk of further trafficking if she remained in her home area in Nigeria and that internal relocation was not reasonable, given her vulnerability and the defendant's own objective evidence that the claimant would have great difficulties avoiding street-homelessness and further abuse as a lone and vulnerable young woman. Ms Kaufmann relied on Dr Agnew-Davies' report as demonstrating that the claimant suffered from poor mental health and so had a poor ability to associate, so that she was particularly vulnerable to further exploitation and entrapment; and that, as a result of her poor mental health and traumatic experiences, she was not fit to live or work in Nigeria.
- For the Secretary of State, Mr James Eadie QC argued the issues on the NRM decision and Mr Charles Banner argued the issues on the Certification decision.
- Mr Eadie submitted in relation to the NRM decision that the key question was whether the policy set out in the Guidance (particularly in relation to "historic" trafficking cases) was sufficient to comply with the UK's international obligations under CAT. He accepted, at least in this court, that although CAT had not been transposed into domestic law by legislation and so did not have "direct effect", insofar as the Guidance purported to give effect to the terms of CAT and failed to do so, that would be a justiciable error of law. He also accepted that to the extent that the NRM Decision was itself based on the terms of the Guidance, if they were, in turn, based on an erroneous interpretation of CAT, then the NRM Decision could be challenged by Judicial Review because that decision would then have been based on a misdirection as to the legal basis for the relevant wording of the Guidance.
- However, Mr Eadie went on to submit that it was recognised by the drafters of CAT that Parties to it would not be obliged to translate verbatim the concepts in Article 4 (on the definitions of "trafficking" and "victim");[17] the question was whether the UK had done so in the Guidance in a manner consistent with those concepts. He submitted that the proper test was: for what purpose was the status of "victim" being claimed – either at the "Reasonable Grounds" stage of assessment or thereafter. Mr Eadie accepted that he could not place any reliance on the use of the present tense in the definition of victim in Article 4; equally, the use of the past tense ("has been") in Article 10(2) was explicable by the fact that, by the time the "Reasonable Grounds" assessment was being made, the person concerned would, necessarily, have ceased to be a victim of trafficking.
- Mr Eadie submitted that it was legitimate for the Competent Authorities to consider, at the "Reasonable Grounds" stage of assessment, the personal circumstances and situation of individuals who had, at some stage in the past, been the victim of trafficking, and it was legitimate for the various factors set out at page 24 of the Guidance to be taken into account. In each case it was proper to ask the question: is this person, assuming he/she is a victim, now in need of assistance?". Mr Eadie accepted that the comments in the GRETA report had to be taken into account in considering the obligations of Parties under CAT but they were not "binding".[18]
- With regard to the allegation that the Guidance failed to contain a specific provision about the need to give a "Reasonable Grounds" victim the opportunity to make an informed decision on whether co-operate with the authorities, Mr Eadie accepted that there was an obligation on Parties under Article 13(1), but it was, he submitted, only general and there was no obligation under CAT to insist that matters were sent to the police and so there was no requirement to refer to that in the Guidance.
- In relation to the obligation of the authorities concerning an investigation, Mr Eadie accepted that, in general, there is an obligation on the UK state of ensuring that an effective investigation is instigated and that this obligation would fall on the UKBA in this case. However, he submitted that, so far as CAT was concerned, under Article 27(1) of CAT, the obligation was only to ensure that the start of criminal proceedings should not depend upon a complaint by the victim of trafficking. There was no further specific obligation under CAT.[19] In this case the lawyers acting for the claimant had, in any event, ensured that the investigation process had been started and, in practice, there were no consequences of any failure by UKBA to initiate an investigation in this case.
- With regard to the EU Directive, Mr Eadie submitted that, as it was not in force at the time of the decision, it had limited, if any, value in the interpretation of CAT. In any case, he submitted, it went no further than CAT.
- On the facts of the case, Mr Eadie submitted that if the SSHD's construction of Articles 4 and 10(2) was correct, then the question is whether the NRM decision taken in the letter of 17 February 2011 was unreasonable. He submitted that it plainly was not so.
- In relation to the Certification decision, Mr Banner made two principal submissions: first, that the decision, based on the material available at the time, contained no material error and, secondly, that the relief sought should not be granted because the claimant had not demonstrated that she would be sufficiently prejudiced if she brought the "out of country" appeal from Nigeria that had already been initated.
- On the issue of a lack of sufficient protection in Nigeria, Mr Banner submitted that the position had not changed since the decision of the Court of Appeal in PO(Nigeria) v Secretary of State for the Home Department[20] which was a case where the AIT had given Country Guidance on the issues (amongst others) of whether Nigeria provided a sufficiency of protection to victims of trafficking and whether shelters for such victims were available or adequate in Nigeria. Although the Court of Appeal criticised the AIT's approach to dealing with these matters in some respects, so that its judgment as Country Guidance for Nigeria on those issues could not be regarded as definitive, Carnwath LJ had concluded[21] that the deficiencies in the AIT's decision related only to the facts of that case and did not undermine the tribunal's general findings on two main issues. These findings were on Nigeria's ability to offer protection and the issue of possible re-trafficking, which were dealt with at [191] and [192] of the AIT's decision and which Carnwath LJ reproduced as an Appendix to his judgment. Thomas LJ agreed with the judgment of Carnwath LJ as well as that of Maurice Kay LJ, who had not commented on the status of the Country Guidance in the AIT's decision following the successful appeal from it to the Court of Appeal.[22]
- Mr Banner submitted that there had been nothing between the decision in the Court of Appeal in PO and the SSHD's decision in this case that would give rise to a realistic prospect of a tribunal from departing from the Country Guidance effectively given in [191] and [192] of the AIT decision in PO. Moreover, as the key person involved in the abuse in Nigeria was the mother of Beatrice, that is Rachel Iyamabo, who was now dead,[23] there were no special reasons to take this case out of the general position as to providing protection. Therefore, on the issue of adequacy of protection for victims of trafficking in Nigeria, any appeal of the claimant to the tribunal would be bound to fail.
- In relation to the issues of mental health and the possibility of economic destitution, Mr Banner submitted that the Certification Decision addresses both points sufficiently, so that there was no prospect of a tribunal finding those points were arguable.[24]
- Mr Banner further argued that even if this court concluded that it was arguable that an appeal would succeed so that the Certification decision was irrational, the court should decline to grant judicial review if there was an effective alternative remedy or matters had been overtaken by events or there was no continuing prejudice to the claimant. Mr Banner relied on the Court of Appeal decision in R(Lim) v Secretary of State for the Home Department.[25] Thus on 6 October 2011 the claimant had lodged an "out of country" appeal with the First Tier Tribunal against the refusal of the asylum claim. Mr Banner submitted that it was clear from the way in which the present applications had been prepared on behalf of the claimant that (a) she could prepare witness statement evidence "out of country"; (b) her case was aided by the fact that her credibility was not in issue; (c) it had been possible to set up expert evidence with Dr Roxanne Agnew-Davies by use of Skype,[26] (d) the claimant was legally aided on that appeal and so has been able to advance detailed criticisms of the Certification decision.
- As to the suggestion of the claimant that the Certification decision ought to have been reviewed and revoked once Dr Agnew-Davies' report had been received, that was, Mr Banner submitted, contrary to common sense. By then the claimant had been removed and the possibility of an "in country" appeal no longer existed. A review of the Certification decision would therefore have been an academic exercise.
IX. The issues for decision.
- In my view the following issues have to be decided:
1. Was the UK's policy expressed in the Guidance unlawful because its approach to "historic" victims at the "Reasonable Grounds" stage of investigation misinterpreted Articles 4 and 10(2) of CAT?
2. Was the Guidance unlawful because it misconstrued Articles 13 in relation to an "informed decision" to co-operate with the authorities, in particular the police?
3. Was the NRM decision in this case unlawful on the basis of either (1) or (2) above?
4. Was the NRM Decision otherwise unlawful because: (a) it failed to take account sufficiently of the needs of the claimant for further assistance, particularly in relation to mental health; or (b) it concluded that there was no requirement for a period of leave in the UK to co-operate with police enquiries?
5. Was there a failure by the Competent Authorities to take proper steps to initiate an "effective investigation" into the offence of trafficking of the claimant and, if so, what consequence does that have?
6. Assuming that the Guidance was otherwise lawful, was the Certification Decision nevertheless unlawful on account of being irrational, in that on appeal to a tribunal it would be reasonably arguable on asylum, humanitarian protection or human rights grounds, in particular that: (a) there is a real risk of persecution on return to Nigeria; and/or (b) Nigeria could not protect the claimant from re-trafficking or being subjected to other degradation such as forced marriage, prostitution or economic destitution because of her status; and/or (c) such dangers cannot be reasonably avoided by re-location within Nigeria for this claimant, bearing in mind in particular her mental health?
7. In the light of the answers to issues 1 - 6 above, what relief (if any) should be granted to the claimant?
- Issue One: Was the UK policy as expressed in the Guidance unlawful because its approach to "historic victims" of trafficking at the "Reasonable Grounds" stage of investigation, misinterpreted Articles 4 and 10(2) of CAT?
The Guidance sets out UK Government policy in certain respects on the issue of trafficking in human beings and, in particular, in relation to those who are victims of trafficking. The Guidance purports to set out this policy in a manner consistent with the provisions of CAT. As already noted, Mr Eadie accepted that if it did not do so (taking account of the breadth of interpretation possible, given the terms of paragraph 70 of the Explanatory Report), then if the NRM Decision was based on a part of the Guidance that had misinterpreted CAT, then it was subject to Judicial Review as being the result of an error of law. Under the general heading (at page 20) of "Reasonable Grounds Consideration", pages 23- 24 of the Guidance deal specifically with the situation where a Competent Authority believes, at that stage of the investigation, that someone has been the victim of trafficking but also concludes, on the facts of that case, that the person "is no longer in need of the protection and assistance offered by [CAT] because the individual's circumstances have changed so much since the trafficking occurred". The Guidance makes it clear that this "policy" is principally for application at the "Reasonable Grounds" stage, although it could be applicable at the "conclusive grounds stage". The Guidance says that there is support for this approach in considering "the rationale for the provision of a recovery and reflection period for victims as set out in Article 13 of [CAT] and as expanded upon in the explanatory report". [27]
- In my view these passages in the Guidance are based on a misinterpretation of Articles 4, 10(2) and 13(1) of CAT. Article 4(a) provides the definition of "trafficking in human beings". It is a comprehensive compilation of all the means by which a person can be the subject of "trafficking" and the definition is even wider for a "child", ie. someone under 18 years old. Article 4(e) defines a "victim" as someone who "is subject to trafficking in human beings as defined in this article". Mr Eadie is correct to concede that there is nothing in the use of the present tense in that definition. In my view the present tense is used in the sense that the person concerned has attained the status of "victim" of trafficking because he is someone who is or has been the subject of any form of "trafficking" as defined in Article 4(a). There is no further qualification to the meaning of the word "victim". There is nothing in Article 4 which indicates that someone may be a "victim" for certain purposes but not for others at any particular stage when his case is being considered.
- Article 10 is the first article in Chapter III of CAT, which sets out "Measures to protect and promote the rights of victims, guaranteeing gender equality". The word "victims" in that heading must have the same meaning as in Article 4(e), so, in my view, it means anyone who is presently, or who has been the victim of trafficking. Article 10(1) places an obligation on each Party to CAT to provide trained persons for their Competent Authorities "so that victims may be identified…". In other words, the first task envisaged for these specially trained people is the identification of those who have been the victim of trafficking. This point is reinforced by the first sentence of Article 10(2), which places an obligation on Parties to CAT to adopt legislative or other measures "to identify victims as appropriate…". The aim identified in this sentence is, therefore, the identification[28] of "victims", but no more.
- The second sentence of Article 10(2) - "Each Party shall ensure that, if the competent authorities have reasonable grounds to believe that a person has been the victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence provided for in Article 18…has been completed and shall likewise ensure that that person receives the assistance provided for in Article 12 paragraphs 1 and 2" – involves three obligations. First, each Party has to undertake an investigation to see if there are "Reasonable Grounds" for believing that a person has been the victim of trafficking. The phraseology of the sentence suggests that this exercise in itself does not involve any assessment of other needs of the victim. Secondly, if the conclusion is that there are "Reasonable Grounds" for concluding that the person has been a "victim", then there is an obligation on the Party not to remove the person concerned from the territory of the Party until the identification process has been completed. That obligation is clear and unqualified. Thirdly, if there are "Reasonable Grounds" then there is an obligation to ensure that the person receives the assistance set out in Article 12(1) and (2). It is at that stage, after the conclusion that there are "Reasonable Grounds" to believe that the person has been the victim of trafficking, that there is room for an assessment of needs, because that is explicit in Article 12(2) itself. But, in my view, this third obligation is separate from the second one in Article 10(2) second sentence that I have identified, viz. not to remove the person from the territory until the identification process as victim of an offence provided for in Article 18 has been completed.
- Article 12(1) sets out Parties' obligations as to the minimum level of assistance that is to be provided to a person whom the Competent Authorities have concluded there is a "Reasonable Ground" for believing he or she is a "victim". But this obligation is qualified by Article 12(2), because that obliges each Party to take account of the victim's "safety and protection needs".[29] Therefore, if the needs are great, the level of assistance must be greater; but, equally, if they are minimal or they become minimal, it seems to me that the obligation to provide the assistance will be accordingly reduced or exhausted.
- This, in my view, is the answer to Mr Eadie's suggestion in his written submissions that the logical conclusion of the claimant's submission on the meaning of Articles 4 and 10(2) is that "victim status" at the "Reasonable Grounds" stage would lead to that person being entitled to assistance for life and long after the traumas of being a victim of trafficking had passed. CAT plainly did not contemplate that and, in my view, the proper interpretation of Articles 4 and 10(2) does not lead to that conclusion.
- Article 13(1) would, on its face, seem to contradict some of the provisions in Article 10(2) and 12. But the Explanatory Report states, at paragraph 172, that Article 13(1) is intended to apply to victims of trafficking who are illegally present in a Party's territory or who are legally resident with a short-term residence permit. The obligation then is to provide a minimum 30 day period of "recovery and reflection". The aim of this period is to provide the victim with two opportunities, which are independent. The first is to "recover and escape the influence of traffickers". The fact that this opportunity might not be needed during this period is recognised by the use of "and/or" between the two opportunities. The second, but separate, opportunity is to "take an informed decision on co-operating with the competent authorities". The provision that an expulsion order cannot be enforced against a person in respect of whom there are "Reasonable Grounds" for believing he is a victim of trafficking must refer to any existing expulsion order; and that is subject to Article 13(3). As I read the last two sentences of Article 13(1), it confirms the general obligation set out in Article 10(2) that when a Party has concluded that there are "Reasonable Grounds" that the person is a victim, then that Party must authorise the person concerned to stay in its territory during the "recovery and reflection period"
- In my view there is nothing in the wording of Article 13 which warrants the statement on page 24 of the Guidance that it supports the approach it sets out in relation to "historic" victims. The Guidance does not apparently recognise that Article 13 is dealing with a particular type of situation (illegal immigrant/short term residence permit) nor does it tackle the proper meaning of the last two sentences of Article 13(1) and the obligation imposed by them identified above. I have also read carefully again the relevant passages in the Explanatory Report. I can find nothing in any of the paragraphs dealing with Articles 4, 10, 12 and 13 which provides the "support" for the approach set out in the Guidance. Nor is there anything in the other paragraphs of the Report to which we were referred during argument.
- In the Y case, Deputy Judge Mott analysed the terms of CAT and concluded, at [46], that "victim status" had several components. The first is that the person concerned is or had been the subject of trafficking. The second is that such a person may, or may not, be someone "requiring…assistance and protection", which may be "time limited" and will vary from case to case. I have difficulty with the notion that "victim status" has various components. In my view it is better to analyse Articles 4 and 10(2) in terms of two questions: the first is to ask whether there are "Reasonable Grounds" to believe that the person concerned has been the victim of trafficking. If he or she has been, then that person can (at least provisionally) be accorded "victim status". But there is then a second question, which comes after this provisional assessment of "victim status".
- The Deputy Judge starts with the minimum recovery and reflection period. He then appears, in [48] to [50], to contemplate that a definitive analysis and decision about the need for assistance and protection of a victim, of the types provided for under Article 12, are to be made as part of the process of deciding whether there are "Reasonable Grounds" for believing a person is a victim, but not thereafter. In my view that is a misconstruction of Articles 4 and 10(2). I accept that at the "Reasonable Grounds" stage, once the provisional view of "victim status" has been taken, it is inevitable that a preliminary assessment must be made about the physical, psychological and economic needs of the victim. But I doubt that assessment can be completed at that preliminary stage. The wording of Articles 4 and 10(2) of CAT does not contemplate that it will be for the purposes of deciding whether there are "Reasonable Grounds" for believing that a person has been the victim of trafficking. I therefore cannot agree with the Deputy Judge's analysis of the obligations imposed on Parties by Articles 4 and 10(2) at [48] - [50]. Insofar as the Deputy Judge ruled that there cannot be "Reasonable Grounds" for concluding that a person has been the victim of trafficking if it appears at that stage that he or she does not need some or all of the assistance set out in Article 12(1), I am not able to agree with his decision on this point.
- The scheme of Article 14 also fits in with my interpretation of Articles 4 and 10(2). The obligation to issue a renewable residence permit is not absolute, but will only arise if one of the two situations set out in (a) and (b) arise. A permit can be withdrawn or not renewed in the circumstances set out in Article 14(3). In other words, a conclusion that there are "Reasonable Grounds" does not automatically mean that a Party must grant a renewable residence permit.
- In argument Mr Eadie posed the rhetorical question: what is to happen in the case of someone who was trafficked to the UK 30 years ago but has managed to create a new life for himself for many years since then? My answer would be that, if that person then came forward and claimed he was the victim of trafficking all those years ago, the Article 10(2) process of deciding whether there were "Reasonable Grounds" for believing he was trafficked would have to be undertaken. On the assumption that the test was satisfied, Article 13 is unlikely to apply as the person will probably have obtained a right to reside in the UK in the meantime. The second obligation under the second sentence of Article 10(2) would apply, but that would be subject to Article 14. Articles 14(1)(b) and (3) would be particularly relevant. Article 12 would be applicable, but the provision in Article 12(2) would be highly relevant in such a case. It may be that, after 30 years, not much (if any) further assistance was needed apart from assistance regarding investigation and possible prosecution of the offences to which he had been subject. Each case, would, of course, depend on the particular facts involved.
- Issue Two: is the Guidance unlawful because it misconstrued Article 13 in relation to an "informed decision" to co-operate with the authorities?
The reference to "an informed decision on co-operating with the authorities" comes in Article 13 (1) of CAT. It is one of the two opportunities that Article 13(1) states is to be afforded to a victim in cases where, as the Explanatory Report indicates, is in the territory of a Party either as an illegal immigrant or on a short-term residence permit.[30] The opportunity to co-operate is to be afforded to someone in respect of whom the Competent Authorities have already concluded there are "Reasonable Grounds" to believe he is a victim. Article 13(1) contemplates that the victim will make a decision whether or not to co-operate with the authorities during the "recovery and reflection" period. But, as I read Article 13(1), no further obligation is imposed on a Party other than to give the victim the appropriate opportunity. Of course, as Article 13(1) specifically recognises, the obligations imposed by that Article are without prejudice to the other obligations of a Party, in particular to undertake "the activities carried out by the competent authorities at all stages of the national proceedings and in particular when investigating and prosecuting the offences concerned". This phrase must be a reference back to the obligations imposed by Articles 12 as well as a reference to those imposed by Article 14 and 15.
- Thus in cases where Article 13(1) applies[31] there is an obligation on Parties to afford such individuals the opportunity to make an "informed decision" on whether to co-operate with the authorities. That is a matter which should be identified in the Guidance and is not. But I think that this is not really the subject of the claimant's complaint; rather, the complaint is that in this case the claimant was not taken through the pre-conditions for reaching an informed decision on whether to co-operate with the authorities, particularly in relation to potential criminal proceedings, before the NRM Decision was made. I consider this under Issue 5.
- I have reached my conclusions on construction without taking account of the views in the GRETA Report or in the Anti-Trafficking Monitoring Group. It seems to me that the EU Trafficking Directive cannot be relevant to the issues of interpretation of CAT or the Guidance or the NRM decision, given the date it came into force or the date on which the UK "opted into" the Directive.
- Issue Three: was the NRM Decision unlawful on the basis of either (1) or (2)?
In the light of my conclusion on Issue Two, only the first part of this issue arises.
- The NRM Decision, which it is common ground was one taken at the "Reasonable Grounds" stage, accepted that the claimant had been the victim of trafficking. But it then expressly concluded that the claimant was "no longer considered to be a victim of trafficking in need of protection under [CAT]", so that it had "therefore been decided that there are not reasonable grounds for considering that [the claimant] is a victim of trafficking". The NRM Decision therefore reached the conclusion that although the claimant had been the subject of trafficking, because it was considered she did not now need protection, therefore she was not, in fact a "victim" for the purposes of CAT. That analysis and conclusion are clearly based on the policy set out in the Guidance in relation to "historic" cases of trafficking. For the reasons I have given, I have concluded that the Guidance has wrongly interpreted Articles 4 and 10(2) of CAT. It must follow that the NRM Decision in this case was based on an erroneous policy as set out in the Guidance. The NRM Decision must therefore be unlawful.
- Issue Four: Was the NRM Decision otherwise unlawful because: (a) it failed to take account sufficiently of the needs of the claimant for further assistance, particularly in relation to mental health; or (b) it concluded that there was no requirement for a period of leave in the UK to co-operate with police enquiries?
This issue assumes, contrary to my conclusion under Issue Three, that the NRM Decision was based upon a policy set out in the Guidance that was lawful. The claimant argued that the NRM Decision was unlawful because it concluded that the claimant had no need of protection under CAT. There could be argument on the facts in this case about the assessment of the position of the claimant leading to that conclusion, but, assuming that the basis of the NRM Decision was otherwise lawful, I would not strike it down on this ground. The NRM Decision recounts the claimant's history. It does assess her present condition, including the question of whether she had any mental health problems. At the time of this decision the report of Dr Agnew-Davies was not available to the decision maker.
- I would be prepared to regard the NRM Decision as reasonable but for one particular factor. This is the statement that because there was no evidence that the claimant had made a complaint to the police against her aunt or that there is any "ongoing police investigation", therefore the claimant "is not required [sic] a period of leave in the UK to co-operate with police enquiries", so that the claimant was not in need of protection under CAT and so there were no "Reasonable Grounds" for considering her a victim of trafficking. This conclusion contains an error of law on two bases. First, because once there are Reasonable Grounds for believing that the claimant has the status of a victim of trafficking, then, under Article 10(2) of CAT, there is an obligation on a Party not to remove the person from the territory "until the identification process as victim of an offence provided for in Article 18" of CAT has been completed by the Competent Authorities. Secondly, as Mr Eadie accepted, Article 27(1) expressly provides that investigations into or prosecution of offences established in accordance with CAT "shall not be dependent upon the report or accusation made by a victim…". The NRM Decision appears to assume exactly the opposite. Although I accept Mr Eadie's point that the Guidance does not purport to transpose any duty under Article 27(1) to CAT to provide for the referral of a victim of trafficking's case to the police in circumstances where the police have not already been alerted, it seems to me that a decision which is based, in part, on a failure to fulfil the positive obligation not to remove someone who has passed the "Reasonable Grounds" test and which decision is also contrary to the negative obligation set out in Article 27(1) of CAT cannot be regarded as lawful.
- I would therefore hold the NRM Decision is also unlawful on that basis.
- Issue Five: was there a failure by the Competent Authorities to take proper steps to initiate an "effective investigation" into the offence of trafficking of the claimant and, if so, what consequence does it have?
Two obligations on the UK authorities are involved. First, there is the obligation of the UK in Article 27(1) of CAT. As already noted,[32] in his written submissions Mr Eadie took the points that, first, an unincorporated international treaty cannot be relied upon in domestic courts to fill an alleged lacuna in Government policy and, secondly, that the Guidance does not purport to transpose any possible positive duty under Article 27(1) of CAT to provide for the referral of a victim of trafficking's case to the police in circumstances where the police have not already been alerted.
- I accept those propositions. But that still leaves Ms Kaufmann's point that the UKBA is a public authority for the purposes of the Human Rights Act 1998 and it must not do anything that would be contrary to a person's Convention rights: in this case those of the claimant under Article 4 not to be subjected to slavery, servitude or forced or compulsory labour. I would be prepared to accept, on the basis of the analysis of the authorities by Wyn Williams J in OOO v Commissioner of Police for the Metropolis[33] that, in the present case, the UKBA was under a duty to initiate or trigger an effective investigation by the police into offences that were committed against the claimant in respect of her trafficking to and in the UK. (I did not understand Mr Eadie to argue to the contrary). I would also accept that it appears on the face of the NRM decision itself that the UKBA did nothing; indeed it relied upon the fact that the claimant had not made a complaint to the police for the fact that there were no continuing police investigations.
- What is the consequence of that conclusion? Although there is no direct connection between any failure of UKBA to initiate an effective investigation and NRM Decision, there was an indirect one. This is because it would appear that one of the reasons for the conclusion that there were no Reasonable Grounds for believing that the claimant was a victim in need of protection under CAT was that the claimant had made no complaint to the police and so there was no police investigation. However, if there is a positive duty to initiate an effective investigation under Article 4 of the ECHR, then the fact that the claimant had not herself complained to the police would be beside the point. This may therefore add weight to the overall view that the NRM Decision was unlawful. Nevertheless, it will not take matters much further for the claimant, because subsequently her solicitors did contact the Cambridgeshire Constabulary and tried to persuade it to take up the matter, although with no success.
- Issue Six: was the Certification decision unlawful as being irrational on the ground that an appeal to a tribunal would be reasonably arguable on asylum, humanitarian protection or human rights grounds?
The basis on which Sir Richard Buxton gave permission in relation to the Certification decision, on which Ms Kaufmann relied, was that it was arguable that the claimant would be vulnerable to trafficking in general if she stays in Nigeria and that the claimant may not obtain proper assistance from the authorities in Nigeria because of the influence of Ms Iyambo. The latter point is not a good one, because Ms Iyambo is now dead, although Ms Kaufmann argued that the claimant may still be put off even attempting to obtain assistance because of her experience at the hands of Ms Iyambo, a retired police official.
- It is for the claimant to prove her case in relation to the Certification decision. I am not impressed with the arguments raised on her behalf. First, the claimant was the subject of trafficking by three individuals, one of whom is now dead and one of whom is in the UK and who has not made any attempts to contact the claimant since she fled that person's home. The claimant was not trafficked through gangs or other organisations in Nigeria. It is clear from the remarks at [193] of the decision of the AIT in PO(Nigeria) v SSHD[34] that the principal danger to victims of trafficking being re-trafficked upon a return to Nigeria comes from gangs that had been the instigators of the victim's trafficking in the first place. This point is referred to at paragraph 31 of the Certification decision. The reference in the previous paragraph to a heightened risk of trafficking of females who are under 40, living in suburban areas and having a poor education is, as I read it, aimed at women who are the target of trafficking for the first time.
- Secondly, there is a statement from the claimant dated 12 May 2012, in which she sets out some details of her life since she was returned to Nigeria and which I regard as a very important check on whether there is, even arguably, a well-founded fear of persecution of the claimant in Nigeria or a real risk of suffering serious harm. It is clear that life has been very hard for the claimant since her return. The claimant has had to lodge with people when and where she can; she has had no organised job, although she does seem to be able to get a small amount of money from gifts or doing odd-jobs; she goes hungry from time to time; there appears to be little prospect of a proper job or a permanent home unless she takes up the "advice" of a policeman who suggested she get married. However, there is no hint that anyone has attempted to re-traffick her from Nigeria or that she has been in any situation where that might be a real possibility. There is no suggestion that there have been attempts to force the claimant to marry someone in Nigeria against her will or that there has been any actual or threatened domestic violence or sexual abuse against her. Nor is there any suggestion from her that she is either physically or mentally unwell. The claimant's account suggests that she has been welcomed into a Church congregation where people have been friendly and helpful to her. There is no hint of aggression or persecution from militant Muslims. The claimant has not suggested that Julie has attempted to contact her or that she, the claimant, has needed to re-locate for some reason (such as threatened re-trafficking or violence against her) but was unable to do so and was suffering as a result.
- I have taken account of Dr Agnew-Davies' report dated 30 November 2011, which was the result of a questionnaire and a Skype interview. Dr Agnew-Davies concluded that the claimant was suffering from a complex and chronic form of Post-Traumatic Stress Disorder ("PTSD") and moderate "Major Depressive Disorder". Dr Agnew-Davies' conclusion is that if the outcome of proceedings were that the claimant had to remain in Nigeria then her suicidal ideation would increase and her mental health would significantly deteriorate, although she assessed that risk as "mild" at that point.[35] Dr Agnew-Davies' view, in November 2011, was that the claimant was not fit to work or live independently in Nigeria, given her mental health and traumatic memories. She concluded, on the basis of taking part in a fact-finding trip to Nigeria, funded by the Organisation for Security and cooperation in Europe ("OSCE") that the psychiatric services available to trafficking victims returning from Europe were grossly overstretched and there was very limited funding available.[36]
- These views have to be considered in the light of the claimant's own statement made in May 2012 on which Dr Agnew-Davies has not commented further.
- I have also read Mr Andrew Desmond's report dated 30 April 2013. He is an expert on "Nigerian human trafficking, particularly where the victims have been recruited from the Southwest area of Edo State and have been subjected to a method of control known as Juju and witchcraft", having served for 31 years as police officer with Hertfordshire Constabulary and the Metropolitan Police. However, Mr Desmond was instructed after the claimant was returned to Nigeria, and, as he himself points out, any proper assessment of whether the claimant has been or is subject to Juju requires a face-to-face interview. Mr Desmond's report is, therefore, almost entirely speculative and I did not find it useful.
- As I have already noted, it is for the claimant to prove her case in the Certification decision issue. The court has to have due regard to the views of the Secretary of State in her Decision letter unless demonstrably wrong. Having looked at all the material, I am not satisfied that there are any arguable grounds for claiming asylum or humanitarian protection or that the return to Nigeria is arguably in breach of the claimant's rights under Articles 3, 4 or 8 of the ECHR.
- Accordingly, I would dismiss the Certification decision claim.
- Issue Seven: in the light of the answers to the issues 1 – 6 above, what relief (if any) should be granted to the claimant?
In view of my conclusion on issues one, three, four and five, there must be an order quashing the NRM decision of 17 February 2011 that the claimant is not a victim of trafficking. The decision was made on an unlawful basis for the reasons I have given. As that decision was one made at the "Reasonable Grounds" stage and as it was accepted in the decision that the claimant had been the subject of trafficking, it seems to me that it must follow that there should be a declaration that there are Reasonable Grounds for believing that the claimant has been the victim of human trafficking. However, it may be that the precise wording needs further consideration by the parties.
- The SSHD's position is that even if this court were to conclude that the NRM decision was unlawful and had to be quashed then it would not necessarily follow that the decision to detain and remove the claimant were themselves unlawful. That issue will have to be determined if there cannot be agreement between the parties.
- I would also grant the claimant a declaration that her rights under Article 4 of the ECHR have been breached. However, although I have concluded that the UKBA was under a duty to initiate an effective investigation by the police of offences against the claimant in relation to trafficking, and that it did not discharge that duty, it is clear from the subsequent correspondence that the police would have done little to further any investigations, whether or not the claimant had remained in the UK. So, even if there has been a breach by UKBA, it is difficult to see how that breach, as opposed to any possible breach by the police, was causative of any damages to the claimant. Therefore I would refuse any relief by way of damages for breach of Article 4 by the SSHD through the UKBA.
- It seems to me that if the SSHD had correctly concluded, at the "Reasonable Grounds" stage, that the claimant was the victim of trafficking, then if the UK government had acted consistently with its obligations under Article 10(2) of CAT, it could not have removed the claimant from the UK until the identification process as victim of an offence provided for in Article 18 had been completed. The consequence of this is that I would grant the claimant a mandatory order that the SSHD uses her best endeavours to secure the return of the claimant to the UK from Nigeria. Further, as the claimant has made it clear that she wishes to take part in further investigations by the police of her case and(so far as I know) Beatrice is still resident in Peterborough, there should be an order that the SSHD grant the claimant 12 months and 1 day's leave to remain in the UK in line with the SSHD's policy applicable to victims of trafficking who wish to take part in the police investigations of their case.
- I would emphasise that it does not follow from my conclusions that the UK government had or has any obligation to allow the claimant to stay in the UK indefinitely; that is made clear by the terms of Article 14 and the fact that Article 16 contemplates a possible return of the victim to their state or origin. Nor does it mean that the claimant is necessarily entitled, whilst staying in the UK in the meantime, always to have the full range of possible continuing assistance under Article 12(1). The UK government has to take due account of a particular victim's safety and protection needs, in accordance with Article 12(2) of CAT. It must do so on the facts of the individual case.
- Lastly, I should emphasise that the facts of this case are, I hope, unusual. The claimant was trafficked to the UK as a child and was the victim of trafficking in the UK as a child. Although my conclusions in relation to lawfulness of the Guidance on "Historical Trafficking" concern an issue of law only, the other elements in the case depend on the facts. It does not follow that other cases, on different facts, would produce the same result.
- In the event I would grant the judicial review claimed in respect of the NRM decision to the extent indicated. If possible the parties should prepare a draft agreed order encapsulating this relief.
Mr Justice Silber:
- I agree.
Appendix One
Convention on Action against Trafficking in Human Beings and its Explanatory Report
Article 4 – Definitions
For the purposes of this Convention:
a. "Trafficking in human beings" shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
b. The consent of a victim of "trafficking in human beings" to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;
c. The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered "trafficking in human beings" even if this does not involve any of the means set forth in subparagraph (a) of this article;
d. "Child" shall mean any person under eighteen years of age;
e. "Victim" shall mean any natural person who is subject to trafficking in human beings as defined in this article.
Article 10 - Identification of the victims
1. Each Party shall provide its competent authorities with persons who are trained and qualified in preventing and combating trafficking in human beings, in identifying and helping victims, including children, and shall ensure that the different authorities collaborate with each other as well as with relevant support organisations, so that victims can be identified in a procedure duly taking into account the special situation of women and child victims and, in appropriate cases, issued with residence permits under the conditions provided for in Article 14 of the present Convention.
2. Each Party shall adopt such legislative or other measures as may be necessary to identify victims as appropriate in collaboration with other Parties and relevant support organisations. Each Party shall ensure that, if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence provided for in Article 18 of this Convention has been completed by the competent authorities and shall likewise ensure that that person receives the assistance provided for in Article 12, paragraphs 1 and 2.
3. When the age of the victim is uncertain and there are reasons to believe that the victim is a child, he or she shall be presumed to be a child and shall be accorded special protection measures pending verification of his/her age.
4. As soon as an unaccompanied child is identified as a victim, each Party shall:
a. provide for representation of the child by a legal guardian, organisation or authority which shall act in the best interests of that child;
b. take the necessary steps to establish his/her identity and nationality;
c. make every effort to locate his/her family when this is in the best interests of the child.
Article 12 - Assistance to victims
1. Each Party shall adopt such legislative or other measures as may be necessary to assist victims in their physical, psychological and social recovery. Such assistance shall include at least:
a. standards of living capable of ensuring their subsistence, through such measures as: appropriate and secure accommodation, psychological and material assistance;
b. access to emergency medical treatment;
c. translation and interpretation services, when appropriate;
d. counselling and information, in particular as regards their legal rights and the services available to them, in a language that they can understand;
e. assistance to enable their rights and interests to be presented and considered at appropriate stages of criminal proceedings against offenders;
f. access to education for children.
Article 13 – Recovery and reflection period
1. Each Party shall provide in its internal law a recovery and reflection period of at least 30 days, when there are reasonable grounds to believe that the person concerned is a victim. Such a period shall be sufficient for the person concerned to recover and escape the influence of traffickers and/or to take an informed decision on cooperating with the competent authorities. During this period it shall not be possible to enforce any expulsion order against him or her. This provision is without prejudice to the activities carried out by the competent authorities in all phases of the relevant national proceedings, and in particular when investigating and prosecuting the offences concerned. During this period, the Parties shall authorise the persons concerned to stay in their territory.
2. During this period, the persons referred to in paragraph 1 of this Article shall be entitled to the measures contained in Article 12, paragraphs 1 and 2.
3 The Parties are not bound to observe this period if grounds of public order prevent it or if it is found that victim status is being claimed improperly.
Article 14 - Residence permit
1. Each Party shall issue a renewable residence permit to victims, in one or other of the two following situations or in both:
a. the competent authority considers that their stay is necessary owing to their personal situation;
b. the competent authority considers that their stay is necessary for the purpose of their co-operation with the competent authorities in investigation or criminal proceedings.
3. The non-renewal or withdrawal of a residence permit is subject to the conditions provided for by the internal law of the Party.
Article 15 – Compensation and legal redress
1. Each Party shall ensure that victims have access, as from their first contact with the competent authorities, to information on relevant judicial and administrative proceedings in a language which they can understand.
2. Each Party shall provide, in its internal law, for the right to legal assistance and to free legal aid for victims under the conditions provided by its internal law.
3. Each Party shall provide, in its internal law, for the right of victims to compensation from the perpetrators.
4. Each Party shall adopt such legislative or other measures as may be necessary to guarantee compensation for victims in accordance with the conditions under its internal law, for instance through the establishment of a fund for victim compensation or measures or programmes aimed at social assistance and social integration of victims, which could be funded by the assets resulting from the application of measures provided in Article 23.
Appendix Two
The Explanatory Report to the Convention:
99. There are many references in the Convention to the victim, and the drafters felt it was essential to define the concept. In particular the measures provided for in Chapter III are intended to apply to persons who are victims within the meaning of the Convention.
127. To protect and assist trafficking victims it is of paramount importance to identify them correctly. Article 10 seeks to allow such identification so that victims can be given the benefit of the measures provided for in Chapter III. Identification of victims is crucial, is often tricky and necessitates detailed enquiries. Failure to identify a trafficking victim correctly will probably mean that victim's continuing to be denied his or her fundamental rights and the prosecution to be denied the necessary witness in criminal proceedings to gain a conviction of the perpetrator for trafficking in human beings. Through the identification process, competent authorities seek and evaluate different circumstances, according to which they can consider a person to be a victim of trafficking.
131. Even though the identification process is not completed, as soon as competent authorities consider that there are reasonable grounds to believe that the person is a victim, they will not remove the person from the territory of the receiving State. Identifying a trafficking victim is a process which takes time. It may require an exchange of information with other countries or Parties or with victim-support organisations, and this may well lengthen the identification process. Many victims, however, are illegally present in the country where they are being exploited. Paragraph 2 seeks to avoid their being immediately removed from the country before they can be identified as victims. Chapter III of the Convention secures various rights to people who are victims of trafficking in human beings. Those rights would be purely theoretical and illusory if such people were removed from the country before identification as victims was possible.
132. The Convention does not require absolute certainty – by definition impossible before the identification process has been completed – for not removing the person concerned from the Party's territory. Under the Convention, if there are "reasonable" grounds for believing someone to be a victim, then that is sufficient reason not to remove them until completion of the identification process establishes conclusively whether or not they are victims of trafficking.
135. Even though the identification process may be speedier than criminal proceedings (if any), victims will still need assistance even before they have been identified as such. For that reason the Convention provides that if the authorities "have reasonable grounds to believe" that someone has been a victim of trafficking, then they should have the benefit, during the identification process, of the assistance measures provided for in Article 10, paragraphs 1 and 2.
146. Victims who break free of their traffickers' control generally find themselves in a position of great insecurity and vulnerability. Article 12, paragraph 1, sets out the assistance measures which Parties must provide for trafficking victims. It must be pointed out that Article 12 applies to all victims, whether victims of national or transnational trafficking. It applies to victims that have not been granted residence permit, under the conditions established in Articles 10, paragraph 2, and 13, paragraph 2.
147. The persons who must receive assistance measures are all those who have been identified as victims after completion of the Article 10 identification process. Such persons are entitled to all the assistance measures set out in Article 12. During the actual identification process, in the case of someone whom the authorities have "reasonable grounds to believe" to be a victim, that person is entitled solely to the measures in Article 12, paragraphs 1 and 2, and not to all the Article 12 measures. During the recovery and reflection period (Article 13) such a person is likewise entitled to the measures in Article 12, paragraphs 1 and 2.
148. Paragraph 1 provides that the measures concerned have to be taken by "each Party". This does not mean that all Parties to the Convention must provide assistance measures to each and every victim but that the Party in whose territory the victim is located must ensure that the assistance measures specified in sub-paragraphs a. to f. are provided to him or her. When the victim leaves that Party's territory the measures referred to in Article 12 no longer apply as Parties are responsible only for persons within their jurisdiction.
159. Sub-paragraphs d. and e. deal more specifically with assistance to victims in the form of supply of information: two common features of victims' situation are helplessness and submissiveness to the traffickers due to fear and lack of information about how to escape their situation.
160. Sub-paragraph d. provides that victims are to be given counselling and information, in particular as regards their legal rights and the services available to them, in a language that they understand. The information deals with matters such as availability of protection and assistance arrangements, the various options open to the victim, the risks they run, the requirements for legalising their presence in the Party's territory, the various possible forms of legal redress, how the criminal-law system operates (including the consequences of an investigation or trial, the length of a trial, witnesses' duties, the possibilities of obtaining compensation from persons found guilty of offences or from other persons or entities, and the chances of a judgment being properly enforced). The information and counselling should enable victims to evaluate their situation and make an informed choice from the various possibilities open to them.
173. Article 13, paragraph 1, accordingly introduces a recovery and reflection period for illegally present victims during which they are not to be removed from the Party's territory. The Convention contains a provision requiring Parties to provide in their internal law for this period to last at least 30 days. This minimum period constitutes an important guarantee for victims and serves a number of purposes. One of the purposes of this period is to allow victims to recover and escape the influence of traffickers. Victims recovery implies, for example, healing of the wounds and recovery from the physical assault which they have suffered. That also implies that they have recovered a minimum of psychological stability. Paragraph 3 of Article 13 allows Parties not to observe this period if grounds of public order prevent it or if it is found that victim status is being claimed improperly. This provision aims to guarantee that victims' status will not be illegitimately used.
174. The other purpose of this period is to allow victims to come to a decision "on co-operating with the competent authorities". By this is meant that victims must decide whether they will cooperate with the law-enforcement authorities in a prosecution of the traffickers. From that standpoint, the period is likely to make the victim a better witness: statements from victims wishing to give evidence to the authorities may well be unreliable if they are still in a state of shock from their ordeal. "Informed decision" means that the victim must be in a reasonably calm frame of mind and know about the protection and assistance measures available and the possible judicial proceedings against the traffickers. Such a decision requires that the victim no longer be under the traffickers' influence.
177. The Convention specifies that the length of the recovery and reflection period must be at least 30 days. The length of this recovery and reflection period has to be of at least 30 days and has to be compatible with the purpose of Article 13. At present countries which have a period of that kind in their domestic law have lengths of one month, 45 days, two months, three months or unspecified. A three-month period was referred to in the declaration of the 3rd Regional Ministerial Forum of the Stability Pact for South-Eastern Europe (Tirana, 11 December 2002). The Group of Experts on trafficking in human beings which the European Commission set up by decision of 25 March 2003 recommended, in an opinion of 16 April 2004, a period of at least 3 months.
Appendix Three
Paragraph 18 of the preamble to EU Directive 2011/36/EU
It is necessary for victims of trafficking in human beings to be able to exercise their rights effectively. Therefore assistance and support should be available to them before, during and for an appropriate time after criminal proceedings. Member States should provide for resources to support victim assistance, support and protection. The assistance and support provided should include at least a minimum set of measures that are necessary to enable the victim to recover and escape from their traffickers. The practical implementation of such measures should, on the basis of an individual assessment carried out in accordance with national procedures, take into account the circumstances, cultural context and needs of the person concerned. A person should be provided with assistance and support as soon as there is a reasonable-grounds indication for believing that he or she might have been trafficked and irrespective of his or her willingness to act as a witness. In cases where the victim does not reside lawfully in the Member State concerned, assistance and support should be provided unconditionally at least during the reflection period. If, after completion of the identification process or expiry of the reflection period, the victim is not considered eligible for a residence permit or does not otherwise have lawful residence in that Member State, or if the victim has left the territory of that Member State, the Member State concerned is not obliged to continue providing assistance and support to that person on the basis of this Directive. Where necessary, assistance and support should continue for an appropriate period after the criminal proceedings have ended, for example if medical treatment is ongoing due to the severe physical or psychological consequences of the crime, or if the victim's safety is at risk due to the victim' s statements in those criminal proceedings.
