ZV (Lithuania) v Secretary of State for the Home Department

Factual and Procedural Background

The Appellant, a Lithuanian national and established victim of trafficking, was trafficked to the United Kingdom in late 2009 by a controlling individual referred to as DE. Over approximately six years, she was subjected to forced prostitution, frequent physical abuse, and drug addiction, alongside multiple convictions for shoplifting. After a brief escape to Lithuania in 2012, she was abducted and returned to the UK by DE's associates. DE was deported in early 2017, freeing the Appellant from his direct control. However, she was subsequently convicted for possession of cannabis, served a prison sentence, and was served with a deportation notice based on her status as a persistent offender. Upon completion of her sentence, she was detained under Immigration Act powers and transferred to an immigration removal centre.

In July 2017, a deportation order was made by the Secretary of State, which the Appellant appealed but the appeal was deferred pending other proceedings. Following disclosures during detention, the Appellant was referred to the National Referral Mechanism (NRM) as a potential victim of trafficking, entitling her to a recovery and reflection period and support, though she was not released promptly. She made an asylum application based on fear of persecution by DE if returned to Lithuania, but this was declared inadmissible on the basis that Lithuania was a safe country of return under the Immigration Rules.

Judicial review proceedings challenged the lawfulness of her detention, the adequacy of support as a trafficking victim, and the inadmissibility decision. Permission to apply for judicial review was granted, resulting in her release and provision of support. The substantive hearing considered multiple grounds, including the inadmissibility decision and support provision. The court rejected the challenges to inadmissibility and support but found unlawful detention for a period. Permission to appeal was granted on the inadmissibility ground and adjourned on the support ground.

Legal Issues Presented

1. Whether the Secretary of State lawfully declared the Appellant's asylum claim inadmissible under the Immigration Rules and the Spanish Protocol, given her status as an EU national and victim of trafficking.
2. Whether the Secretary of State breached the duty to provide assistance and support to the Appellant as a potential victim of trafficking under Article 11 of Directive 2011/36/EU and related policy.

Arguments of the Parties

Appellant's Arguments

• The inadmissibility decision was unlawful because the Secretary of State failed to properly consider the risk of persecution by a non-state actor (DE) and the sufficiency of protection in Lithuania, contrary to the Refugee Convention and relevant EU law.
• The Secretary of State was obliged to conduct at least an initial inquiry into the validity of her asylum claim, despite the presumption that Lithuania is a safe country of origin.
• The Secretary of State unlawfully failed to provide adequate assistance and support as a potential victim of trafficking, including appropriate psychological treatment and individualised assessment.
• There was a breach of published Home Office policy (Victims of Modern Slavery Guidance) by making the inadmissibility decision before the conclusive grounds decision under the NRM process.
• The duty to provide support arises under both the Trafficking Directive and Article 4 of the European Convention on Human Rights (ECHR), imposing positive obligations on the state.

Respondent's Arguments

• The inadmissibility decision was lawful and properly based on the Spanish Protocol, reflecting the presumption that EU member states are safe countries of origin.
• The threshold for admitting an asylum claim under condition (d) of the Spanish Protocol requires compelling reasons to believe there is a clear risk of persecution and insufficient protection by the member state, which was not met.
• The Secretary of State was entitled to rely on the presumption of safety and was not required to carry out an individualised inquiry absent compelling evidence.
• The support provided to the Appellant while detained met the minimum requirements under the Directive and ECAT, including medical and psychological assistance.
• The Appellant’s criticisms of support were insufficient to establish a breach, and the terminology used by the lower court (e.g., "emergency medical support") did not amount to misdirection.
• The Home Office's policy guidance does not prohibit an inadmissibility decision prior to a conclusive grounds decision where the claim is inadmissible.
• The duty under Article 4 ECHR was not clearly engaged and was not argued before the lower court; accordingly, it was inappropriate to decide on it in this appeal.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first examined the legal framework governing asylum claims by EU nationals under the Refugee Convention, the Spanish Protocol to the Treaty on European Union, and the corresponding domestic Immigration Rules. It identified that the Spanish Protocol presumes EU member states are safe countries of origin, barring asylum claims unless one of four conditions is met. The case focused on condition (d), whereby a member state may unilaterally admit an asylum claim if it decides exceptional circumstances exist.

The court analysed the meaning of condition (d) and concluded that the member state’s discretion to admit claims is not unfettered but subject to a threshold requiring compelling reasons to believe there is a clear risk of persecution and insufficient protection by the member state, applying the Horvath standard. This threshold aligns with the formal processes under conditions (a)-(c), which address systemic breaches of fundamental rights. The court rejected the Appellant’s argument that a broad discretion to admit claims with minimal inquiry was required, holding that a rebuttable presumption of safety applies and no detailed inquiry is necessary absent evidence rebutting that presumption.

Applying that standard to the facts, the court found the material before the Secretary of State—principally the Appellant’s letter describing fear of DE’s control—did not constitute compelling reasons to believe Lithuania would be unable or unwilling to protect her. The 2012 re-trafficking episode was not sufficient to establish systemic failure or exceptional circumstances, particularly as the Appellant had not engaged the Lithuanian authorities on return. No other evidence was presented to suggest Lithuania’s protection system was deficient.

Regarding the Home Office policy that asylum claims should not be decided negatively while NRM processes are ongoing, the court interpreted this as applying only to admissible claims requiring substantive consideration. Since the claim was inadmissible, no breach of policy occurred.

On the support duty under Article 11 of the Trafficking Directive and the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT), the court relied heavily on the Court of Appeal’s decision in R (EM). It identified that the duty requires provision of assistance and support sufficient to ensure a subsistence standard of living, including accommodation, material assistance, and necessary medical treatment including psychological support, but does not mandate specialist or targeted treatment specific to trafficking effects.

The court reviewed the evidence of support provided during detention, including medical and psychological interventions, and found it met or exceeded the minimum standards required. It rejected the Appellant’s criticisms that there was no individualised assessment, no rule 34 medical examination upon detention transfer, and inadequate psychological therapy, holding that substance and adequacy of support were determinative rather than formal process. The court also noted that the Appellant’s drug dependency was treated continuously, which was a prerequisite for effective psychological treatment.

The court declined to decide whether a parallel duty arises under Article 4 of the ECHR, as this was not argued before the lower court and was not determinative given the findings under the Directive and ECAT.

Holding and Implications

Holding:

The court DISMISSED the appeal on the inadmissibility ground (Ground 1) and granted permission but ultimately DISMISSED the appeal on the support duty ground (Ground 4).

Implications: The decision confirms that the presumption of safety for EU member states under the Spanish Protocol and Immigration Rules can only be rebutted by compelling evidence of a clear risk of persecution and insufficient protection, applying the established Horvath standard. It clarifies that states are not required to conduct detailed inquiries into asylum claims by EU nationals absent such evidence.

Regarding support duties for potential victims of trafficking, the judgment endorses the interpretation that the duty requires a subsistence standard of living and necessary medical treatment, including psychological support, but does not impose obligations to provide specialist or targeted treatment. The court emphasised the importance of assessing the substance of support provided rather than formal procedural steps.

No new precedent was established beyond clarification and application of existing principles. The direct effect is to uphold the Secretary of State's decisions and the approach to support provision in immigration detention in similar cases.