The High Court declared today that the operation of the detained fast track system breaches the rights of potential victims of trafficking because it fails to identify them as soon as possible, the consequence of which leaves them detained unlawfully, denies them essential services and safeguards normally available to victims of crime, and delays or affects criminal investigations by the police into trafficking.
The Home Office having previously recognised that the detained fast track was operated unlawfully and unfairly for vulnerable groups like victims of torture, has now recognised and conceded that it was also acting incompatibly with its legal duties, including under Article 4 of the European Convention on Human Rights (the right to be free from enforced labour and servitude) when detaining and subjecting individuals with clear indicators of trafficking, to the fast track asylum process.
The High Court also declared that the detained fast track operated in a manner which discriminated against vulnerable groups contrary to section 149 Equality Act 2010. This is yet another blow to the Home Office in two weeks following the suspension of the Detained Fast Track asylum system on 2 July 2015.
These declarations today follow from test litigation brought by human rights barristers at Garden Court Chambers on behalf of two of three asylum seekers. Each of the three asylum seekers were sexually exploited and vulnerable individuals who were unlawfully imprisoned at Yarl’s Wood Immigration Removal Centre and Colnbrook Immigration Removal Centre. One was subject to a forced marriage, raped and beaten repeatedly by her “fiancé” with the threat of being transported to Italy to be forced into prostitution. Another suffered persistent domestic abuse at the hands of her husband and was later passed by her husband onto his acquaintances and friends and forced into prostitution. A third was a child groomed for the purposes of sexual exploitation.
Stephanie Harrison QC of Garden Court Chambers, who led our team of barristers on this legal action, said:
“It is not without some irony that only a few months ago the Modern Slavery Act came into force, heralded by the Home Secretary as offering protection to victims of trafficking from being criminalised. The Home Office now needs to adhere to the law and its own commitments on trafficking and urgently review the asylum system, so victims of trafficking are no longer detained and denied vital protections”.
“The Home Office, with the Metropolitan police, also need to urgently reflect upon the many lost opportunities to investigate and prosecute the perpetrators of human trafficking who profit from the exploitation of these vulnerable people, many of them, women and girls forced into prostitution”.
“Too often the policy of the Government, which seeks to demonise and criminalise those seeking asylum, means that in practice, those responsible for the real crimes go unchallenged, whilst the survivors of grave ill-treatment are locked up and exposed to further risk of abuse when they are wrongly removed from the UK. The Home Office must now act to confirm that it will exclude from any reformed fast track process any case where there are indicators of human trafficking, including forced labour, sexual and other exploitation”.
The Home Office has clear obligations to identify and assist victims of trafficking, including providing them with safe houses, specialist counselling and referral to the police for investigation into the crimes committed against them. These obligations are contained in Article 4 European Convention on Human Rights (prohibition against slavery), the EU Directive on preventing and combatting trafficking (2011/36/EC) as well as in the published policies of the Home Office. They have been reinforced in March 2015 by Parliament’s introduction of the Modern Slavery Act 2015, which was championed by the Home Secretary.
Home Office policy is to not detain potential victims of trafficking save for in very exceptional circumstances. Yet, in each of these three claims, the Home Office failed to act on indicators of trafficking disclosed by each claimant which ought to have resulted in their being identified as potential victims of trafficking and removed from the detained fast track because their claims were unsuitable for a fair determination within that system.
The Home Office now concedes that it failed to comply with these obligations it owes toward these victims of trafficking, and as a result they were all unlawfully imprisoned.
Jane Ryan of Bhatt Murphy solicitors who acted for one of the asylum seekers said:
“My client was detained when she should have been offered protection and her experiences of trafficking properly investigated. The Secretary of State has accepted that she breached her obligations towards my client and on a wider scale accepts that the operation of the Detained Fast Track did not comply fully with her equality duties to prevent discriminatory treatment. My client should have been offered support as a victim of crime, and instead was subjected to the unfair Detained Fast Track. I call on the Secretary of State to take steps to ensure this does not happen again.”
Irina DoCarmo of the Poppy Project, who intervened in the case, said:
“The Eaves Poppy Project has long said that detention hinders the identification of victims. We have supported women who have escaped trafficking and exploitation only to be detained by immigration authorities when they seek safety. We find this unjust and unjustifiable. Detention violates human dignity and we are pleased that in these cases the detained fast track has been found to breach the human rights of the claimants. It is now important that the Home Office works with the sector in a coordinated effort to ensure that victims of trafficking are identified and that appropriate support is offered to them.
If the Government wants the Modern Slavery Act to be at the forefront of the fight against human trafficking, they must ensure that potential victims of trafficking are able to access support and advocacy. Victim care must be prioritised and engagement with the sector is critical to this. For too long, the culture of disbelief has left victims vulnerable to continued exploitation and abuse from within the system.”
The High Court victory today will allow these asylum seekers, and others in similar situations, to seek redress for being unfairly processed within a detained fast track system, acknowledged by the Government to be unfair, discriminatory and in breach of well-established principles prohibiting slavery. The Home Secretary accepts each claimant in this litigation should now have the opportunity to have their trafficking circumstances fully investigated and their asylum claims considered fairly in a normal process. The Home Secretary also accepts that her conduct leading to the unlawful detention of these three victims will result in compensation. A number of other asylum seekers, represented by Garden Court Chambers, were held in immigration detention, despite reporting traumatic stories of exploitation and trafficking. Their claims will be considered at a future date.
More broadly, the Home Secretary has agreed that an urgent review will be undertaken to examine all evidence about unfairness in the Detained Fast Track and to address any shortcomings identified. In any review, the Home Secretary accepts that she must comply with her equalities duties and make public how she has done so.
Media Enquiries: David de Menezes, firstname.lastname@example.org, 07900497024
Notes to Editors
- The Detained Fast Track asylum system was suspended by the Government on 2 July 2015 as a result of further legal action pursued by Garden Court Chambers on behalf of 27 victims of torture who were also unlawfully and unfairly detained in the fast track system.
- Stephanie Harrison QC and Shu Shin Luh of Garden Court Chambers acted for two of the three asylum seekers, instructed by Jane Ryan of Bhatt Murphy Solicitors and Michael Booker of Lawrence Lupin Solicitors. Three further pending claims also involve potential victims of trafficking and are represented by Shu Shin Luh instructed by Michael Booker of Lawrence Lupin Solicitors.
- Kathryn Cronin and Maria Moodie of Garden Court Chambers acted for the intervener in this case, the Poppy Project. Kathryn Cronin and Maria Moodie were instructed by Hogan Lovells Solicitors.
- Garden Court Chambers barristers are all members of the Public Law and Immigration Teams.
- More information about the orders and reasons for the orders made by the Court can be found here.