24/01/2012

R (on the application of) A v Secretary of State for the Home Department

This case is of interest as being one of the few cases concerning the meaning and interpretation of the 2005 Council of Europe Convention on action against trafficking in human beings (The Trafficking Convention).  The Trafficking Convention was intended primarily to be a cooperation agreement between the contracting states to combat cross border trafficking in human beings for exploitation but it provided also for the identification and recognition of victims of trafficking. This case is one of a growing number of challenges to decisions of the UK ‘Competent Authority’ to refuse a claim to be a victim of trafficking (such claims often being made in conjunction with a claim for asylum under the Refugee Convention, as here). Also, the case raised issues of the interaction of EU law concerning the Dublin II Regulation (in relation to the return of asylum seekers to the Member State where they first made their asylum claim) and the Charter of Fundamental Rights.  In addition, reliance was placed on the European Convention of Human Rights (ECHR). These obligations in public international law, EU law and domestic law arose for consideration within the ever-evolving framework of administrative law.

In essence, the Claimant contended that she was a victim of trafficking because she had been exploited by ‘Omar’ (the people smuggler in France) with whom she had agreed to have sex in return for him arranging her illegal entry to the UK since she had insufficient funds to pay for it. Further, it was claimed that her rights under the ECHR and the Charter would be breached if the Claimant was returned to Belgium (where she had made two asylum claims) under the Dublin II arrangements.    The AIRE Centre appeared as Intervener.  Permission for judicial review had been refused by 2 judges of the Administrative Court prior to the Court of Appeal granting permission for judicial review and, unusually, hearing the claim itself (comment is made in the judgment as to the difficulties that this presents).  Ultimately, the claim was dismissed in relation to both grounds.  In particular, the Court noted the distinction between people smuggling and trafficking and the absence of evidence that the Belgian State would fail to adhere to its obligations under EU law and public international law.