R LH v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Peter Marquand |
| Judgment Date | 13 December 2019 |
| Neutral Citation | [2019] EWHC 3457 (Admin) |
| Date | 13 December 2019 |
| Docket Number | Case No: CO/142/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2019] EWHC 3457 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Peter Marquand
(SITTING AS A DEPUTY HIGH COURT JUDGE)
Case No: CO/142/2019
Chris McWatters (instructed by Duncan Lewis) for the Claimant
William Irwin (instructed by Government Legal Department) for the Defendant
Hearing date: 30 October 2019
Approved Judgment
Introduction
The Claimant is from Vietnam and challenges by way of Judicial Review the lawfulness of the Defendant's decision recorded in a letter dated 9 October 2018 that, notwithstanding new information, the Claimant was not a victim of trafficking. This decision was a reconsideration of the Defendant's conclusive grounds decision of 31 May 2016 (‘the 31 May 2016 Decision’).
At the hearing an application was made by the Claimant for anonymity. I made such an order for the following reasons. If identified, the Claimant may be at risk of serious harm if, first, the Claimant is returned to Vietnam or secondly, he remains in the UK and some, or all, of what the Claimant says about his treatment is true. Furthermore, a significant amount of the subject matter concerns the Claimant's medical condition. Additionally, this Judgment refers to 2 decisions of the First-Tier Tribunal, both of which had made Directions providing for the anonymity of the Claimant, which would be ineffective if there was no anonymity in this case. Considering the Claimant's article 8 rights and the right to freedom of expression, article 10, I was, and am, satisfied that non-disclosure is necessary to secure the proper administration of justice and in order to protect the interests of the Claimant. The order I made on 30 October 2019 contains a provision for any non-party to apply to vary it or to have it set aside. The order has been published in accordance with CPR 39.2(5).
The Claimant says that he is a victim of trafficking. The Defendant is the relevant public authority (‘competent authority’) which determines, within the legal framework, whether or not individuals are victims of trafficking. In summary, after a decision is made that there are reasonable grounds to suspect a person is a victim of trafficking the competent authority goes on to make a conclusive grounds decision, on the balance of probabilities, whether that person is a victim of trafficking. The relevant policy provides for a reconsideration by the competent authority of a previous conclusive grounds decision.
In a claim form filed on 11 January 2019 the Claimant challenged first, the Defendant's decision of 9 October 2018 not to recognise the Claimant as a victim of trafficking and secondly, the Defendant's failure to apply anxious scrutiny in considering the Claimant's credibility and evidence in support of his claim to be a victim of trafficking. In summary, the Claimant's case is that a psychiatric report diagnosing the Claimant as suffering from PTSD and a report from an expert on Vietnam, were not sufficiently taken into account by the Defendant. In oral submissions the Claimant's emphasis was in particular on the psychiatric evidence.
On 29 March 2019 Alison Foster QC, sitting as a Deputy High Court Judge, granted permission.
The legal framework
Human trafficking falls within the scope of article 4 of the European Convention on Human Rights ( Rantsev v Cyprus and Russia (2010) 51 EHRR 1 paragraph 282). The article provides:
“Article 4 of the Convention – Prohibition of slavery and forced labour
1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.”
There are no permissible exceptions or derogations. In Rantsev at paragraph 283 the court stated that this article ‘enshrines one of the basic values of the democratic societies making up the Council of Europe.’
The UK is a signatory of the Council of Europe Convention on Action against Trafficking in Human Beings (‘the ECAT’), which was ratified by UK and came into force on 1 April 2009. The UK is also subject to the European Directive 2011/36/EU (‘the Directive’), which is directed at preventing trafficking of human beings and protecting its victims. The mechanism of compliance with the ECAT and Directive is through the national referral mechanism (‘the NRM’).
The NRM process relies on first responders identifying potential victims and referring them to a competent authority. The competent authority assesses the evidence to reach a reasonable grounds decision on the standard of proof of ‘I suspect but cannot prove.’ A positive reasonable grounds decision puts in place a timeline for the competent authority to make a conclusive grounds decision. The standard of proof for that decision is ‘on the balance of probabilities,’ although that is currently subject to an appeal, but nothing turns on that in this case.
The Defendant has published guidance for Home Office staff entitled ‘Victims of Modern Slavery – Competent Authority Guidance.’ There have been a number of versions but the parts relevant to this case have not changed. In particular, the section entitled ‘How to Assess Credibility When Making a Reasonable Grounds or Conclusive Grounds Decision’ (‘the Credibility Guidance’) and ‘Appeals against a Reasonable Grounds or Conclusive Grounds Decision’ (‘the Reconsideration Guidance’).
The Credibility Guidance points out the potential victim's account needs to be assessed to determine whether it is credible. The material facts of past and present events are assessed for their coherence and consistency, including the level of detail of the information provided, but the Guidance notes:
“Due to the trauma of human trafficking or modern slavery, there may be valid reasons why a potential victim's account is inconsistent or lacks sufficient detail.”
The Credibility Guidance goes on to deal with assessing mitigating circumstances:
“… which can affect whether a potential victim's account of modern slavery is credible.
When the CA [competent authority] assesses the credibility of a claim there may be mitigating reasons why a potential victim of modern slavery is incoherent, inconsistent or delays giving details of material facts. The CA must take these reasons into account when considering the credibility of the claim. Such factors may include, but are not limited to, the following:
• trauma (mental, psychological, or emotional)
• inability to express themselves clearly
• mistrust of authorities
• feelings of shame
• painful memories (including those of a sexual nature)”
I was referred to authorities that dealt with assessments of credibility. In KB & AH (credibility-structured approach) [2017] UKUT 491 (IAC) Lord Burns, sitting as a Judge of the Upper Tribunal, and Judge Storey considered this issue in the context of an asylum claim. The guidance is different but the principles are relevant at paragraphs 26 to 41. In essence, the factors in the guidance referred to as indicators of credibility are not to be treated as a set of conditions or requirements and must not be applied as such. They are not to be taken as an exhaustive list and it must not be forgotten that a credibility assessment is highly fact sensitive. The evidence must be considered as a whole and consideration given to every factor that might tell in favour of or against a person. In MA (Somalia) Secretary of State for the Home Department [2010] UKSC 49 at paragraph 33 Lord Dyson stated ‘the significance of lies will vary from case to case’. I was also referred to R (FK) v Secretary of State for the Home Department [2016] EWHC 56 (Admin) at paragraph 27 where Dove J in a case concerning the application of the Credibility Guidance in the NRM decision-making process stated that:
“Given the nature of the Guidance, and the level of detail that it provides in relation to the consideration of credibility in trafficking claims, a high standard of reasoning is required from the competent authority in order to demonstrate a careful and conscientious analysis of the relevant factors which have to be taken into account when assessing credibility.”
The Reconsideration Guidance points out that an individual has a right to challenge either a reasonable grounds decision or a conclusive grounds decision by way of judicial review. However, it goes on to state that it may be appropriate for the competent authority to reconsider a decision but:
“This is not a formal right of appeal and the decision should only be reconsidered where there are grounds to do so.
This informal arrangement does not extend to other parties such as legal advisors and non-governmental organisations outside the NRM.”
It is common ground that in assessing this challenge I must apply ‘anxious scrutiny’ or referred to as ‘rigorous scrutiny’ by Sir Stephen Silber in R (SF (Saint Lucia)) v Secretary of State for the Home Department [2016] 1 WLR 1439. This was analysed by Philip Mott QC, sitting as a Deputy High Court Judge, in R (IXU) v Secretary of State for the Home Department [2019] EWHC 12 (Admin) at paragraph 50. The judge identified 7 propositions which are as follows:
“i. …The Defendant bears the burden of justifying the decision.
ii. The review is one for error of law, not merits…
iii. The test is one of rationality, not some higher or lower standard…
iv. In some cases, it may be enough simply to say that a possible basis of a claim has been considered and rejected… In others, very much more detailed justification and explanation will be expected, especially where the effect of the decision is great. The concept of anxious scrutiny reflects this requirement for more detailed reasons in certain cases.
v. The Supreme Court has endorsed a flexible approach to...
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