United Kingdom – High Court finds detention of victim of trafficking unlawful due to errors in medical and referral procedures

Date: 
Tuesday, October 2, 2018

On 2 October, the England and Wales High Court ruled on a case of a Namibian national, who was seeking damages for unlawful detention.

The claimant was detained after it was discovered that she was working as a carer in the UK, in breach of her conditions of visitor entry. After being served with a Notice of Removal she claimed asylum and asked to be referred to the national framework for identifying and supporting victims of trafficking. According to the applicant, she feared returning to her home country, after having experienced serious forms of abuse there. Having been detained for over three weeks the claimant was released following an examination by a doctor, who reported she was not fit for detention, as a potential victim of torture.

The Court initially found that since the applicant had admitted to breaching her conditions of entry by working illegally, there were “reasonable grounds” for suspecting removal directions would be given. Consequently, her detention was in principle not unlawful according to the Immigration and Asylum Act 1999. The judge, however, went on to examine whether the applicant’s detention was unlawful as she was not seen by a doctor (but instead a nurse) within 24 hours of being detained, according to UK Detention centre rules. The applicant was not examined by a doctor until 4 days after her detention, while this examination was not found to meet the standards set out in relevant domestic jurisprudence, as it was only to ascertain if she had any immediate medical needs rather than to identify possible history of torture. Therefore, the Court found that she was illegally detained from 24 hours after her detention until she was examined by a second doctor and subsequently released three weeks later.

Lastly, the Court ruled that the claimant’s detention was also unlawful as the immigration authorities failed to make a trafficking referral, an act which would have led to the applicant’s release.  In this case no appropriate referral was made, despite the applicant’s clear requests and that the threshold for making a victim of trafficking reference is very low. It found that in this case there was no rational basis for the immigration authorities to decide not to make a referral, an error in law that also renders the applicant’s detention unlawful.

Consequently, the Court found that the applicant’s detention was unlawful and recognised her right to damages for false imprisonment.


This item was reproduced with the permission of ECRE from the weekly ELENA legal update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.

                                                     

 

Keywords: 
Detention
Medical Reports/Medico-legal Reports
Trafficking in human beings