The Round-Up: Damages for Unlawful Detention of Trafficking Victim, Excessive Sentence Quashed for Fracking Protesters, and Discriminatory Housing Policy?
22 October 2018
ZV, R (on the application of) v Secretary of State for the Home Department  EWHC 2725 (Admin): The High Court has ruled that a Lithuanian victim of trafficking, who was detained at Yarl’s Wood for five months pending deportation, is entitled to damages for 45 days’ unlawful detention.
The detention was ruled unlawful for two periods: firstly, a 15-day period during which there was a failure to carry out a physical and mental examination, which in line with the Detention Centre Rules 2001 should be carried out by a medical practitioner within 24 hours of admission to the centre. On this point, Garnham J (formerly of 1 Crown Office Row) commented:
“In my judgment, the suggestion that damages for that period need not be more than simply nominal is unfounded. One of the reasons why no Reasonable Grounds Decision was taken during that period is said to be the ‘absence of the Competent Authority on annual leave’. That must be a reference to the official within the competent Authority with responsibility for the Claimant’s case. In my judgment, that cannot possibly be a good excuse. The obligation on the Defendant is to ensure the Competent Authority conducts its duties consistently and properly. Failing to have in place arrangements which mean the Competent Authority continues to perform its functions whilst individual officers are away, cannot justify such a failure.”
Furthermore, there was a 30-day period of unlawful detention subsequent to a finding of reasonable grounds for believing the claimant to be a victim of trafficking. At this point, early release should be directed unless detention is justified on grounds of public order. In light of the history of the case, in Garnham J’s judgment there was an obligation on the Secretary of State to urgently take the steps necessary to effect her release, and:
“I can detect no such urgency. On the contrary, the impression with which I am left is of a marked reluctance to complete the necessary process. I can see no public order justification for further detention. Making the arrangements necessary to effect release should have begun as soon as the reasonable grounds decision was taken. As Ms Knights fairly points out, it is revealing that once a court ordered release, the process was completed promptly.”
However, the judge rejected the claimant’s submission that the whole of her five-month detention was unlawful. Several other grounds of appeal also failed, including that the declaration of the claimant’s asylum claim as inadmissible without further investigation was unlawful because it was a blanket decision taken without reference to any of the underlying facts and as such, created an unacceptable risk of breach of Article 3 ECHR and the Refugee Convention. On this point, the international frameworks – in particular, the Spanish Protocol provided in the Treaty of Amsterdam – were clear. In the light of the level of protection available, member states are to be regarded as safe. Asylum claims by members of national states are only to be declared admissible in the very unusual circumstances identified in the Protocol. These circumstances did not apply, and there was no evidence before the court to suggest that Lithuania does not provide an adequate system of criminal law enforcement in respect of trafficking or does not operate that system properly.
The first ground of appeal – that the decision to certify the claimant under Regulation 33 of the 2016 Immigration (European Economic Area) Regulations 2016 was unlawful because evidence indicated a real risk that removal pending appeal would breach Articles 3 and 8 ECHR and therefore be unlawful under section 6 of the HRA – failed for the simple reason that the decision under challenge had already been withdrawn by the defendant, and as such the argument was academic.
The defendant fought the appellant’s claim for possession of a property which had initially been granted to his parents as joint secure tenants. After his father’s death, an agreement was made recognising the appellant as sole tenant by succession, dated from the month of death. After his mother’s death, the appellants served a Notice to Quit to the defendant.
The defendant sought declaratory relief relating to the ‘one succession’ rule laid out in s87-88 of the Housing Act 1985, arguing that its operation amounted to unlawful discrimination under article 14 ECHR, read with article 8. He sought either an ECHR-consistent interpretation of the sections, pursuant to section 3 HRA, or a section 4 declaration of incompatibility.
It was common ground that the defendant’s mother had ‘succeeded’ to the joint tenancy under the relevant Housing Act provisions, thus excluding the defendant from further succession. The defendant sought the reading of section 88(1)(e) to include: “he became the tenant on the tenancy being vested in him on the death of the previous tenant save where he was the spouse or civil partner of the deceased previous tenant.” This argument was based around the so-called ‘death-divorce dichotomy’: the position of a widow automatically succeeding to sole tenancy was analogous to that of a divorcee, who succeeded through judicial reassignment, and from the discrepancy in consequences discrimination arose.
Whilst Murray J accepted that being widowed or divorced could constitute a personal characteristic for the purposes of article 14, he was persuaded by the appellant’s argument that the fact that the latter succeeds through judicial intervention, rather than automatic statutory succession, means that the situations are not analogous. Further, he applied Moses J’s reasoning in Gangera v Hounslow LBC 2003 EWHC 794, that:
“[H]owever widely ‘status’ [under article 14 of the Convention] may be interpreted it is clear to me that there has been no discrimination on the grounds of status whatsoever. The reason why the claimant is not entitled to succeed to his mother’s tenancy does not depend upon his status at all. It is because his mother had become the sole tenant and therefore, by virtue of the operation of s.88(1)(b) of the 1985 Act, she was herself a successor. The difference in treatment follows from the fact of a previous succession not because of the status of the claimant.
Nevertheless, Murray J went on to consider whether there was an objective justification for the difference in treatment complained of, due to the need to take the four-stage test for discrimination holistically. He found that the proper test to apply was the ‘stringent’ test of whether the decision was ‘manifestly without reasonable foundation’, as the ability of a local authority to manage its housing stock was a ‘general measure of economic or social strategy,’ for which the state was granted a wide margin of appreciation. On the facts, this test could not be satisfied, partly because the relevant Housing Act provisions clearly intended to address not only housing policy objectives, but also family policy objectives, relating to the adjustment of property in matrimonial proceedings.
In The News:
Three fracking protesters, who were handed 15 and 16 month prison sentences last month after being convicted of causing a public nuisance near a fracking site, have had their sentences quashed by the Court of Appeal.
The Lord Chief Justice, Lord Burnett of Maldon, said “We have concluded that an immediate custodial sentence in the case of these defendants was manifestly excessive.” Liberty, supporting the appellants, had warned that the case could have a chilling effect on future protests.
The hearing also raised questions over the trial judge’s family links to the oil and gas industry, with counsel for the protesters submitting that there was “sufficient evidence here to raise apparent bias.” However, this was not accepted as grounds in the appeal, with Burnett stating that the issue needed further investigation and a response from the trial judge.
The court also heard that the trial judge had refused to allow the defendants to bring a defence of necessity, stating pre-trial that he would not hear any evidence about fracking. It was argued that such a restriction prevented the defendants from bringing arguments relating to their rights to protest, and to free speech.
Finally, arrangements in place for the domestic abuse bill include plans to outlaw ‘gagging orders’, otherwise known as Non-Disclosure Agreements. Gagging orders allow employers to draw up agreements with those who complain of sexual abuse, whereby the victim agrees not to go to the police, in exchange for compensation. Often, these agreements threaten the victim with financial penalties if they then decide to make a criminal complaint.
The bill is also set to include a new legal duty for businesses to protect their employees from unreasonable behaviour in the workplace.