Test case on the detention of trafficking victims settles leaving meaning of “public order” unclear

Monday 25 November 2019

Louise Hooper and Anthony Vaughan were instructed by Ahmed Aydeed and Sumbul Philips of Duncan Lewis (Birmingham).

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A Polish man, known as PG, who was forced by human traffickers to shoplift in the UK, has overturned an order for his deportation, and been awarded £25,000 in damages for unlawful detention.  

After completing 10 week prison sentence for shoplifting related offences PG was detained under immigration powers for over 3.5 months. Around 2 months into that period of detention, the Home Office’s Competent Authority accepted there were reasonable grounds to believe that PG was a victim of trafficking. PG was not released even though he was no longer under the control of his traffickers and posed no real risk to the public.

Home Office policy is to release potential victims of trafficking from immigration detention unless there is a “public order” reason not to do so.This term is not defined, which can lead to its inconsistent and incorrect application by Home Office detention caseworkers. It can result in detainees and their advisors not being given a clear understanding of why they are detained. 

PG sought judicial review of his detention and lodged an application for bail with the First Tier Tribunal. Permission to seek judicial review was granted and PG’s case was listed for a hearing in the High Court earlier this year so that the Court could give guidance on the meaning of the “public order” test for the detention of potential victims of trafficking, in the Home Office’s Competent Authority Guidance (version 7). In granting permission to apply for judicial review, Mr Justice Ouseley said:

“The issue would benefit from the consideration of a High Court Judge on the approach to “public order” and on how the reasonable grounds decision should be treated when an exception to the presumption in favour of release is considered.”

Following PG’s release from detention, the Competent Authority made a positive conclusive grounds decision, accepting that PG had been forced to shoplift by his traffickers by means of " threats, coercion, deception, abuse of power and abuse of position of vulnerability."  

PG’s appeal against deportation was later allowed by the First-tier Tribunal, which branded as “disingenuous” the Home Office’s attempt to argue that PG was not a victim of trafficking, even though the Competent Authority had already accepted that he was.  On 22 November 2019 the Home Office confirmed that they would not challenge the appeal decision in PG’s favour and that the deportation order was now revoked.  

The Home Office agreed to settle the judicial review and damages claim in respect of PG’s detention under immigration powers, for £25,000. This means that there is still no guidance on the issue identified by Mr Justice Ouseley. 

The current version of the Competent Authority Guidance (version 8), published after this judicial review concluded, still fails to provide any definition or explanation of the “public order” test, and it is entirely unclear whether, and if so when, this may be forthcoming.

This case was reported widely in the media, including comment from the Home Office published in the Independent.

Louise Hooper and Anthony Vaughan are members of the Garden Court Chambers Admin and Public Law Teams.

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