Karon Monaghan QC (sitting as a Deputy High Court Judge) has determined that the Secretary of State for the Home Department (SSHD) failed to protect a potential victim of trafficking (PVOT), unlawfully concluded he was not a victim of trafficking and, following his conviction for the cultivation of cannabis, unlawfully detained him and unreasonably delayed in determining whether he had been trafficked.
Irrationality in the Conclusive Grounds decision
She held that the Competent Authority could not rationally have concluded it had sufficient information to reach a conclusive grounds decision because the information they were originally given by the police conflicted with the later information and therefore at the least required probing before a decision could be reached [§67-69]. Self-denial may be a relevant factor but it may just as well be consistent with having been trafficked as not, depending on the wider circumstances. [§68] The error in reaching the conclusive grounds decision bore directly on the decision to detain the claimant under immigration powers after expiry of his term of imprisonment [§73].
Breach of Article 4 ECHR
The Court accepted that ‘given the width of the protective obligation inherent in Article 4, there may be circumstances where an investigation of some sort is required if the protective obligation is to be properly discharged – a simple example may be causing an investigation to take place into the whereabouts of a missing PVOT.’ [§76]
In respect of Article 4 the judge held that whilst the duty and guidance are not co-extensive the guidance is ‘a helpful indication of what could readily have been done by way of protective measures’ and the failure to ensure safe accommodation was in place and/or flagging a suspected trafficking victim’s disappearance to the police (as per the policy) ‘would not impose a disproportionate burden on the SSHD’. Moreover, Article 4 was also breached as a result of the defendant noting on the file and informing the police that the claimant had been ‘deemed’ not to be trafficked so that when he was found again no further steps were taken to provide protection for a very long time. [§84]
Public Order Grounds
Where an individual is a potential victim of trafficking, policy makes clear that they can only be detained under immigration powers on ‘public order’ grounds. The Judge considered the lack of any contemporaneous reference to public order grounds, the assessment of the claimant as of ‘medium’ risk of reoffending and the case law relating to ‘public order’ grounds. She held that as a person assessed as a ‘medium’ risk of reoffending, ordinarily the claimant should have been released from detention (under the general detention policy) and stated:
‘Plainly the requirement for a “public order” ground is intended to set a higher threshold than would ordinarily be applicable because otherwise it would not be a necessary condition.’ [§106]
The Judge distinguished EA v SSHD  EWHC 1165 (Admin), on the grounds that in that case there was evidence of repeated incidence of violence. She further considered that where a person is at high risk of absconding and whether that risk is sufficient to meet the “public order” test must be a matter of fact in any case. [§106-108]
See the full judgment:  EWHC 2122 (Admin)