MN v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill |
| Judgment Date | 21 December 2020 |
| Neutral Citation | [2020] EWCA Civ 1746 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2019/1319 |
| Date | 21 December 2020 |
and
[2020] EWCA Civ 1746
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Baker
and
Lady Justice Simler
Case No: C4/2019/1319
C4/2019/1069
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
Farbey J (MN)
Mr Philip Mott QC (IXU)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Raza Husain QC, Ms Shu Shin Luh and Mr Ronan Toal (instructed by Simpson Millar) for MN
Mr Raza Husain QC, Ms Shu Shin Luh and Mr Ronan Toal (instructed by Wilsons Solicitors LLP) for IXU
Sir James Eadie QC and Mr William Irwin (instructed by the Treasury Solicitor) for the Respondent
Ms Stephanie Harrison QC, Ms Gemma Loughran and Ms Ellan Gunn (instructed by Herbert Smith Freehills LLP) for AIRE
Mr Thomas de la Mare QC, Mr Jason Pobjoy and Ms Gayatri Sarathy (instructed by Deighton Pierce Glynn) for Anti-Slavery International
Hearing dates: 7–10 July 2020
Approved Judgment
| INTRODUCTION | 1–9 | |
| THE ISSUES | 10–14 | |
| THE LEGAL BACKGROUND | 15–85 | |
| INTRODUCTION | 15–16 | |
| (A) THE COUNCIL OF EUROPE CONVENTIONS | 17–49 | |
| (1) ECAT | 18–42 | |
| (2) Article | 4 of the ECHR | 43–49 |
| (B) THE EU LEGISLATION | 50–69 | |
| (1) The Pre-ECAT EU Instruments | 50–53 | |
| (2) The | 2011 Directive | 54–69 |
| (C) THE DOMESTIC REGIME | 70–83 | |
| (1) The NRM | 70–74 | |
| (2) Reasonable Grounds Decision | 75–77 | |
| (3) The Conclusive Grounds Decision | 78–83 | |
| OVERVIEW OF THE LEGAL FRAMEWORK | 84–85 | |
| ISSUE (1): STANDARD OF PROOF | 86–101 | |
| ISSUE (2): EXPERT EVIDENCE | 102–124 | |
| INTRODUCTORY | 102–105 | |
| MIBANGA | 106–109 | |
| EXPERT EVIDENCE ABOUT CREDIBILITY | 110–124 | |
| ISSUE (3): CREDIBILITY | 125–128 | |
| MN's APPEAL | 129–256 | |
| MN'S ACCOUNT IN OUTLINE | 130–137 | |
| PREVIOUS DECISIONS | 138–141 | |
| THE APPLICATION FOR RECONSIDERATION | 142–160 | |
| The Witness Statements | 143–145 | |
| The Expert Evidence | 146–160 | |
| THE DECISION OF THE COMPETENT AUTHORITY | 161–233 | |
| Introductory | 161–165 | |
| Ms Rees' Letter | 166–171 | |
| Dr Johnson's Report | 172–176 | |
| Ms Thullesen's Report | 177–182 | |
| Overview of the Treatment of the Expert Evidence | 183–184 | |
| The CA's Self-Directions | 185–186 | |
| The Difficulties with MN's Account | 187–228 | |
| The FTT Decision | 229–230 | |
| “Mitigating Circumstances” | 231–232 | |
| “Consideration” | 233 | |
| THE JUDGE'S DECISION | 234–237 | |
| THE GROUNDS OF APPEAL | 238–239 | |
| GROUND | 2: ANXIOUS SCRUTINY | 240–246 |
| GROUNDS | 3/4: CREDIBILITY AND EXPERT EVIDENCE | 247–253 |
| DISPOSAL | 254–256 | |
| IXU's APPEAL | 257–353 | |
| IXU's ACCOUNT IN OUTLINE | 257–260 | |
| OVERVIEW OF THE ALLEGED TRAFFICKING | 261–264 | |
| THE CRIMINAL PROCEEDINGS | 265–267 | |
| THE ASYLUM PROCEEDINGS | 268–276 | |
| REFERRAL TO THE NRM AND RECONSIDERATION REQUEST | 277–278 | |
| Dr Sharp | 279–282 | |
| Ms Thullesen | 283–290 | |
| Overview | 291–295 | |
| THE DECISION OF THE COMPETENT AUTHORITY | 296–323 | |
| Introductory | 296–299 | |
| Credibility | 300–311 | |
| The Elements in IXU's Narrative | 312–316 | |
| “Mitigating Circumstances” | 317–312 | |
| Conclusions | 322–323 | |
| THE DECISION OF THE DEPUTY JUDGE | 324–331 | |
| THE GROUNDS OF APPEAL | 332 | |
| GROUND (1): “NEXUS” | 333–343 | |
| GROUND (2): EXPERT EVIDENCE | 344–348 | |
| GROUND (3): CREDIBILITY OF A CHILD VICTIM OF TRAFFICKING | 349–352 | |
| DISPOSAL | 353 |
INTRODUCTION
This is the decision of the Court, to which all its members have contributed.
These two appeals have been heard together because they both raise issues about the correct approach to deciding whether someone is a victim of human trafficking for the purpose of the process established under the so-called National Referral Mechanism (“the NRM”). We give more details of that process later, but in short the NRM provides for a two-stage identification procedure under which:
(a) a “competent authority” (“CA”), which at the time material to these appeals was typically a unit within the Home Office, first makes an initial decision about whether there are “reasonable grounds” to believe that a person is a victim of trafficking; and
(b) subsequently, after further consideration/investigation, the CA makes a “conclusive grounds decision” 1 as to whether the person in question is in fact a victim of trafficking.
We will refer to beneficiaries of the two kinds of decision as, respectively, a “potential victim of trafficking” and an “established victim of trafficking”. Established victims of trafficking are entitled to various kinds of support under the NRM: some, but not all, of that support is available also to potential victims. There is no right of appeal against adverse reasonable grounds and conclusive grounds decisions, but they may be the subject of judicial review.
It is convenient to note at the start that the question whether a person is a victim of human trafficking may arise in other contexts besides eligibility for support under the NRM. In particular, it may arise in the context of immigration: victims of trafficking do not as such acquire any right to leave to remain under domestic legislation or the
Immigration Rules, but the circumstances surrounding their trafficking may, depending on the facts of the particular case, mean that they are entitled to leave to remain as a refugee or by way of humanitarian protection. Accordingly decisions on whether a person is, in substance, a victim of trafficking may be taken in the context of immigration appeals. 2 The relationship between decisions made by the CA in the context of the NRM and decisions made by a tribunal in an immigration context was recently considered by the Supreme Court in MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9, [2020] 1 WLR 1373At this stage we will only give a bare outline of the facts of the two cases sufficient to introduce the issues. Although there is no automatic right to anonymity in cases involving victims of human trafficking, we were satisfied that such an order was appropriate in these cases. We accordingly refer to the Appellants as “MN” and “IXU”; and one or two individuals with whom IXU had dealings have been anonymised also.
MN. MN is an Albanian national. She was born on 11 January 1988. She came to this country on 26 February 2013 and claimed asylum. In her screening interview she gave an account which contained numerous indicators that she was a victim of trafficking, including that she had been forced to work as a prostitute in Italy. She was referred to the NRM. The CA made a reasonable grounds decision in her favour on 21 March 2013. On 7 August 2017, four years later, the CA made a conclusive grounds decision that MN was not a victim of trafficking. During the interval between the two decisions her asylum claim was refused. An appeal to the First-tier Tribunal (“the FTT”) was unsuccessful. On 12 October 2017 MN began proceedings for judicial review of the CA's decision. By a judgment handed down on 29 November 2018 Farbey J dismissed her claim. She appeals from that decision with permission granted by Hickinbottom LJ.
IXU. IXU is a Nigerian national. She says that she was born on 27 March 1999. She came to this country on 18 July 2012 on a student visa, which gave her date of birth as 27 October 1988. She says that in fact she came not primarily as a student but because she was trafficked and that on her arrival she was expected to become a prostitute. After, on her account, escaping from her traffickers she agreed to marry an EU national, but the marriage was prevented by the immigration authorities; and on 9 April 2014 she was convicted of an offence of conspiracy in relation to the proposed marriage and sentenced to two years' imprisonment. Following her sentence she was served with notice of liability to automatic deportation. She made an asylum claim. Her application was refused. In the context of her appeal to the FTT (which was eventually unsuccessful) she gave an account of her history which led to her being referred to the NRM in June 2015. After various delays a decision on that referral was made by the CA on 6 December 2016. It found that there were reasonable grounds to believe that she was a victim of trafficking. However, its eventual conclusive grounds decision, dated 12 February 2018, was that she was not. On 11 May 2018 she commenced proceedings for judicial review of that decision. In a
judgment handed down on 9 January 2019 Mr Philip Mott QC, sitting as a deputy High Court Judge, dismissed her claim. She appeals from that decision with (again) permission granted by Hickinbottom LJBoth Appellants have been represented before us by Mr Raza Husain QC, leading Ms Shu Shin Luh and Mr Ronan Toal. In the Administrative Court both were represented by Ms Luh. The Respondent, the Secretary of State for the Home Department, has been represented by Sir James Eadie QC, leading Mr William Irwin, who also represented her below. Sir James and Mr Irwin addressed us on different aspects of the case.
Permission has been given to the AIRE Centre and Anti-Slavery International to intervene in the appeals. They have been represented by, respectively, Ms Stephanie Harrison QC, leading Ms Gemma Loughran, and Mr Thomas de la Mare QC, leading Mr Jason Pobjoy and Ms Gayatri Sarathy. The AIRE Centre was also an intervener in MN below, where it was represented by Ms Harrison, Mr Toal and Ms Loughran.
The Appellants, the Secretary of State and the Interveners have helpfully provided consolidated skeleton arguments covering both appeals. We will for convenience sometimes refer to those skeleton arguments as if they...
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