R Ermira Kurtulaj v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Karen Steyn |
| Judgment Date | 11 June 2019 |
| Neutral Citation | [2019] EWHC 1696 (Admin) |
| Docket Number | No. CO/4855/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 June 2019 |
[2019] EWHC 1696 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Karen Steyn QC
(Sitting as Deputy Judge of the High Court)
No. CO/4855/2018
Mr J. Collins (instructed by Sentinel Solicitors) appeared on behalf of the Claimant.
Mr K. Masi (instructed by the Government Legal Department) appeared on behalf of the Defendant.
THE DEPUTY JUDGE:
This is an ex tempore judgment. This is a claim for judicial review by which the claimant seeks to challenge the defendant's “conclusive grounds” decision, dated 27 September 2018 (“the second conclusive grounds decision”), by which the defendant concluded that the claimant was not a victim of trafficking. Permission to challenge the second conclusive grounds decision was granted on the papers by Mr Darryl Allen QC, sitting as a Deputy High Court Judge, by order dated 25 January 2019.
The facts
The claimant arrived in the UK on 16 January 2016, entering clandestinely in the back of a lorry. She made an appointment to claim asylum 10 days later on 26 January 2016. The claimant attended a screening interview on 12 February 2016.
In view of the claimant's answers during the screening interview, on 19 February 2016 a positive “reasonable grounds” decision was made. In other words, it was concluded that the test of “I suspect but cannot prove” that the claimant is a victim of human trafficking or slavery, servitude or forced or compulsory labour, was met.
The claimant attended an asylum interview on 8 April 2016. Following this interview, on 29 September 2016 the defendant made a negative conclusive grounds decision, i.e. the defendant concluded that she was not trafficked (“the first conclusive grounds decision”). The claimant challenged that decision. Following the grant of permission on the papers, the defendant conceded that the first conclusive grounds decision should be withdrawn and reconsidered.
The result of that reconsideration was the second conclusive grounds decision made on 27 September 2018, which is the subject of this challenge.
Separately, on 26 October 2018, the defendant also refused the claimant's asylum claim, with a right of appeal. The claimant has appealed to the First-tier Tribunal against the refusal of asylum. On 5 December 2018, the First-tier Tribunal adjourned the asylum appeal pending the outcome of this judicial review claim.
The decision
Under the heading ‘Immigration Details’, the second conclusive grounds decision records:
“You state:
• You left Albania on 07/12/2015 and travelled to Montenegro by car using your own passport.
• You then travelled on to Belgium before travelling to the UK by lorry on 16/01/2016
Home Office Records show:
• You left Albania on 07/12/2015 and travelled to Montenegro. You then travelled to Belgium. You travelled to the UK illegally concealed in a lorry.”
Under the heading ‘Case Summary’, the second conclusive grounds decision then records the documents that have been taken into account in considering the claim, namely: the national referral mechanism form completed by an immigration officer dated 12 February 2016; a screening interview record dated 12 February 2016; the asylum interview record dated 8 April 2016; information from the British embassy in Tirana dated 7 April 2016, and Home Office records accessed on 23 September 2018.
Under the heading ‘Objective Evidence’, the decision letter considers the objective evidence regarding trafficking in, through and to Belgium and the United Kingdom before concluding:
“The evidence above confirms that modern slavery occurs in Belgium and the UK. They are countries where women are subject to exploitation.”
Under the heading ‘Conclusive Grounds Decision’, the decision letter states:
“For the reasons set out below, it is considered that you are not a credible witness and therefore, limited weight is attached to your evidence.”
Passages from the defendant's guidance in relation to assessing credibility are cited, and then the second conclusive grounds decision continues in these terms:
“You state that you were forced into prostitution by a woman called Vera you met in the park. However, many inconsistencies have been noted in your account. You state that you met Vera in a park. You state that she saw you crying. You told her about your plight and she offered to give you a job and accommodation. You state you saw meeting Vera ‘as an opportunity to escape from difficulties’ (AIR:Q100) as you were not being supported by your family since 2002. However, despite looking at this as an opportunity, it is inconsistent that you did not seek further information from Vera such as her surname or the details regarding the employment offer she was making such as hours or salary. In assessing your circumstances at the time, you were in a park alone crying and in a foreign country. You were approached by an unknown woman whom you simply left the park with. Furthermore, the difficulties that you were facing at the time were in relation to your refusal to marry a much older man. However, it is noted that you were engaged to marry in 2002 and this was called off. You continued to live with your family up until 2015, despite not being supported by them. Your account of the difficulties you faced with your family since 2002 is very limited and centred around your engagements which have a 13-year difference between both events. You state you had ‘no reason to be suspicious’ of Vera's intentions (AIR:Q125), however you had no reason to trust her either and simply leaving with her without seeking further information is considered to be damaging to your credibility.
In your asylum interview, you have described Vera and her gang to be highly organised and sophisticated in their approach in recruiting and harbouring women for financial gain; going so far as to uphold pretences of promised work in a hotel as a maid for two days before luring you into a false sense of security to a house in an unknown location and forcing you to work as a prostitute. The account given regarding their behaviour as a criminal network is considered to be inconsistent with the reason for your transportation to the UK, i.e. their fear that you would be found by those searching for you. It is not credible that your alleged traffickers feared your discovery by ‘your people’ when there is nothing to suggest anything untoward happened to you. This is because you left on your own free will without any belongings therefore anything that could trace your whereabouts was left behind. Therefore, this is considered to be damaging to your credibility.
Furthermore, you state that you were held by the gang for a period of a month. You were not allowed to leave and threatened into compliance. They went even further by holding you in a room with a small window, food was delivered to you by different individuals and an en suite provided to you. All facilities were provided to restrict and confine all your movement and work to that one room. This is therefore inconsistent with your escape. You state that you and another woman were accompanied by one of the male traffickers to the UK. Upon arrival, the man wandered off to get a signal on his phone. You took this as an opportunity to escape. The circumstances of your escape are inconsistent with the control measures taken to harbour you and force you into prostitution for a period of a month.
In the UK, you state you came across a Kosovan couple who spoke Albanian. You state in your asylum interview that they offered to send you back to Albania and took you in for a few days. However, in considering this account it is believed a good Samaritan may well offer help to someone in your situation; however, the help that the Kosovan couple offered is believed to go above and beyond what can be considered as reasonable actions for a stranger. The couple, residing in a safe country, are considered to be reasonably aware of the help and assistance that can be provided to you by the authorities instead of either offering to send you back to Albania or take you in for a few days. This is not credible and is considered to be damaging to your credibility.”
The law
I can take the legal background from R (FK) v Secretary of State for the Home Department [2016] EWHC 56 (Admin). At para.15 to para.17, Dove J observed
“15. The Council of Europe Convention on Action against Trafficking in Human Beings is described in Article 1 as having as its purpose preventing and combating trafficking in human beings along with the protection of the human rights of victims of trafficking as well as ensuring effective investigation and prosecution of their cases. Article 4 of the Convention defines trafficking in human beings in the following way:
‘4(a) “Trafficking in human beings” shall mean the recruitment,...
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