In R (H) v Secretary of State for the Home Department [2018] EWHC 2191 (Admin) the High Court has rejected two complaints about how the Home Office recognises and cares for trafficking victims in detention. First, the claimant argued that Rule 34 and Rule 35 of the Detention Centre Rules 2001, which require a medical assessment within 24 hours to identify whether a detainee has physical or mental health vulnerabilities or has suffered from torture, also include a requirement to identify and provide extra support to victims of trafficking. Secondly, the claimant submitted that the failures in this case were an example of systemic failure by the Home Office to comply with its duties towards trafficking victims.

It is important to note that before the substantive hearing the defendant withdrew his decision to certify the claimant’s asylum claim and accepted that he had been unlawfully detained for 12 months. So H had already achieved most of the remedies sought in this judicial review.

Mr Justice Nicol rejected both grounds of challenge. He commented that the requirements of the Detention Centre Rules 2001 were distinct from the Home Office’s obligations towards victims of trafficking, which derive from the Council of Europe Convention on Action against Trafficking in Human Beings 2005 and the Anti-Trafficking Directive 2011/36/EU. Domestic rules about how to treat immigration detainees in general could not be used as justification for creating extra obligations towards victims of trafficking.

The judge refused to delve into factual disputes within the medical evidence in the context of judicial review proceedings. Moreover, Nicol J ruled that it was inappropriate to make a declaration about systemic problems at the Home Office on the basis of a single case:

The role of the Court is to adjudicate on specific legal disputes. Bodies such as the Public Accounts Committee and the Anti-Slavery Commissioner have a wider remit. They can survey the performance of the Home Office more generally in discharging its anti-trafficking functions and make recommendations. That is not the function of the Court.

It is regrettable that the High Court refused to investigate the standard of medical care provided to this trafficking victim while he was unlawfully detained. Many detainees report problems interacting with doctors and nurses in detention centres and the fact that these proceedings were brought by judicial review is not a compelling reason to avoid resolving factual disputes; live evidence can be heard by the judicial review court if necessary. But the failure of the systemic challenge is understandable and highlights the danger of making that type of allegation without the evidence of multiple claimants or intervenors.