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Punishing the Victim (article by Joe Bryce, Advocate)

Third country removal of victims of trafficking. 

Asylum is an issue that arouses strong feelings among many opinion-formers and members of the public. Quite often public understanding of the issues concerned can be wide of the mark. One example is in relation to people who come to Britain to claim asylum having come through other countries on the way here. Many people feel strongly that asylum-seekers should seek asylum in the first safe country they pass through. Very few people outside the legal profession understand that that is in fact what already happens. Regulations made under the European Union provide that the Home Office can send an asylum-seeker back to any European country he or she has passed through on the way to Britain, for their asylum claim to be dealt with in that other European country. Lawyers call this ‘third country removal’ or, since the Regulations were initially agreed while Ireland had the EU presidency, the Dublin Regulations. Contrary to widespread public misunderstanding, the Dublin Regulations are widely and strictly enforced. 

The Dublin Regulations are intended to combat ‘asylum-shopping,’ and in practice they work well against those who might want to abuse the system. But what happens if the person concerned is someone whose choice to come here is not their own, but who has instead been brought here by criminals for exploitation? People in that situation are known as victims of trafficking and are protected by a specific European Convention for the Prevention of Trafficking (‘CPT’), which came into force in 2009. Many members of the public who are concerned about abuse of the asylum system would nevertheless agree that victims of trafficking should not be treated the same way as “asylum-shoppers.” Even if these victims of the crime of trafficking have been brought here through another European country, it still seems right that it should be this country which looks after them when they escape their abusers. 

In a recent Court of Session decision in which Hastie counsel appeared for the petitioner (Joe Bryce of Hastie Stable, with Ailsa Carmichael QC of Ampersand Advocates), the question of whether a victim of trafficking could be subjected to third country removal arose for the first time since the CPT came into force. In JB, Petitioner [2014] CSOH 126, Judgment 14th August 2014, Lord Armstrong “reduced” (quashed) Home Office decisions to subject to third country removal a Nigerian woman whom the Home Office itself had conclusively determined to be a victim of trafficking. 

In the course of his judgment, Lord Armstrong found that a range of international obligations applied. He held that the CPT itself required that any decision to deport a person who was accepted to have been a victim of trafficking had to be subject to consideration of that person’s rights, safety and dignity. The reference to ‘dignity’ is particularly interesting to human rights lawyers. The concept of ‘human dignity’ crops up a lot in UN law and in the constitutional law of a number of countries such as South Africa, but because it does not appear in Scottish or English law or in the European Convention on Human Rights it hasn’t been much discussed in British courts[i]. In JB it was possible to rely on the petitioner’s right to human dignity because the Dublin regulations were EU law, and where EU law is engaged, the European Charter of Fundamental Rights applies; NS v Secretary of State for the Home Department (“SSHD”) [2013] QB 102.  The Home Office argued that the requirement in Article 1 of the Charter for respect for human dignity added nothing to the prohibition in Article 3 of the human rights Convention against inhuman or degrading treatment, but it is perfectly apparent from his judgment that Lord Armstrong considered that it added a great deal.

In his judgment, Lord Armstrong held that the Home Office had decided to subject the petitioner to third country removal without even considering what positive obligations the UK might have towards her as a victim of trafficking. As a result, the Home Office was ordered to reconsider its decision, and in fact the Home Office has now decided to deal with the petitioner’s asylum claims here rather send her back to the country in which she had been exploited before (Italy). So strictly speaking the Court hasn’t decided yet whether it could ever be lawful for Britain to send a trafficking victim to another country without considering her asylum claim. However, it may not logically be an enormous leap from saying that the obligations to a trafficking victim have to be taken into account to saying that those obligations do in fact prevent third country removal. Certainly this is a decision which professionals working with trafficking victims, and not just lawyers, will want to be aware of.

 

Ailsa Carmichael QC of Ampersand Advocates and Joe Bryce of the Hastie Stable were instructed by Nicola Loughran of Loughran & Co, Solicitors, Glasgow.

 

Lorna Drummond QC intervened on behalf of the AIRE Centre.

 

i There is a wonderfully stimulating essay on the topic in McCrudden in ‘Human Dignity and Judicial Interpretation of Human Rights’ (E.J.I.L. 2008, 19(4), 655 – 724).