The Queen (on the application of EL) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Evans-Gordon,Her Honour Judge |
| Judgment Date | 26 April 2018 |
| Neutral Citation | [2018] EWHC 968 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/536/2017 |
| Date | 26 April 2018 |
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
HER HONOUR JUDGE Evans-Gordon SITTING AS A JUDGE OF THE HIGH COURT
Case No: CO/536/2017
Ms Catherine Robinson (instructed by Duncan Lewis) for the Claimant
Dr Christopher Staker (instructed by the Treasury Solicitor) for the Defendant
Hearing date: 24 th January 2018
Judgment Approved
In this claim the claimant, an Albanian national, challenges the defendant's decision of 24 October 2016 (“the decision letter”) to the effect that she is not a victim of trafficking. Her application for asylum was refused on 8 September 2017, no doubt, in large part, because of the negative decision letter: I have not seen the refusal of asylum decision. There is also a preliminary issue as to whether or not the standard of scrutiny to be applied to the decision is one of anxious scrutiny and whether or not this is a greater level of scrutiny than is usually the case. I am grateful to both counsel for their assistance.
The Facts
As there is no dispute as to the defendant's account of the claimant's factual case as contained in the decision letter, I will summarise it rather than set it out in full. The claimant, who was born on 24 th January 1990, first met a man called Marko in about 2004, when she was 14 and living with her parents and siblings in Burrell, Northern Albania. Marko was about 20 at the time. She states that after two or three months of meeting him, during which time he flirted with her, he raped her. He continued to rape her over the next three years threatening her and physically harming her to prevent disclosure. Alternatively, after six to eight months of the rape, the claimant developed feelings for Marko, the relationship became consensual and he no longer mistreated her. At the end of 2007/beginning of 2008, when the claimant would have been nearly, or just turned 18, her parents received a marriage proposal for her from another man, AL. When she told Marko of this he disappeared, and she did not see him again for some years.
The claimant married AL in May 2009 and moved to his home town of Arapaj, Durres but he was out of the country a lot, working. Approximately a year later she met Marko again, while on a visit to her parents. She was not happy to see him and felt that he followed her. She asked him to leave her alone, but he would not do so. She then entered a consensual sexual relationship with him. The claimant became pregnant at around the same time but was clear that the baby was her husband's because of the dates. The claimant chose to stop seeing Marko following the birth of her child: the child was born on 6 February 2011.
The claimant next met Marko again in 2015. In May or June of that year she told her husband that Marko would not leave her alone but did not reveal her previous sexual relationships with him. AL started to doubt her fidelity and said that the marriage was over, but she should continue to stay with his parents to look after them: they were not told of the end of the relationship between AL and the claimant. Nor did the claimant tell her own parents what had happened, but she did tell her 14 or 15-year-old brother, E. She also told Marko who, it appears, was already a friend of E notwithstanding the 16-year age disparity. Marko invited her to live with him in Italy and said he would look after her son. The claimant refused but later agreed when Marko said he would also take her brother E with them. Marko, it appears, had already spoken separately to E about this.
The claimant, her son and E left Albania for Italy on 5 July 2015. They travelled on to France within a day where they met Marko who had not travelled with them. In France the claimant lived with Marko and her son while E stayed with friends of Marko. Nothing untoward occurred during this time. On 5 October 2015 the claimant, her son and E tried to enter the United Kingdom using forged documents but were stopped by the authorities. Following their release, they were collected by friends of Marko's and taken to a building where they met a woman named Selima. Selima told the claimant that she would have to work as a prostitute to pay them for the forged documents. When the claimant spoke to Marko on the telephone he said that E's life was in her hands; if she worked as a prostitute, E would be free to do as he pleased. The claimant did not see E again.
The claimant began work as a prostitute and saw two to four clients each night while Selima looked after the claimant's son. She would visit one client at his home approximately 30 minutes' drive away. The client would pick her up and she would take her son with her. As that client saw her distress on several occasions he offered to pick her up as usual one night and let her go. This happened on 16 December 2015. The client took the claimant and her son to a place where there were lots of lorries and the claimant agreed with a lorry driver that he would take them to the United Kingdom in exchange for her gold jewellery: this he did.
On 17 December 2015 the claimant had an initial screening interview at the Asylum Interview Unit in Croydon which made a referral to the NRM on 18 th December 2015. At the time the claimant was pregnant with her second child. On 31 December 2015 the competent authority made a positive reasonable grounds decision and the claimant and her son were accommodated pending a conclusive grounds decision. The claimant's second child was born on 11 August 2017: the claimant says she does not know the identity of the father. As stated above, the competent authority made a negative conclusive grounds decision on 24 October 2016.
On 23 December 2016 the claimant's solicitors sent a letter before action to the Defendant who replied on 9 January 2017 maintaining the negative conclusive grounds decision. The claim was issued on 3 February 2017. Permission was refused on paper by John Cavanagh QC, sitting as a Deputy High Court Judge but granted at a subsequent oral hearing on 15 August by Peter Marquand, sitting as a Deputy High Court Judge.
The Issue
There is no suggestion that the competent authority misunderstood the claimant's case on the facts which, in essence, it found to be incredible and therefore determined that, on balance of probabilities, the claimant was not a victim of trafficking. The issue concerns the competent authority's approach to the credibility of the claimant in light of the fact that she was a child during the early part of her relevant history. It is said that the defendant either did not apply her policy or misapplied it. The relevant policy is that set out in the document ‘Victims of Modern Slavery – Competent Authority Guidance’ (v.3.0, 21 March 2016) (“the Guidance”).
The Legal Framework
Before turning to the Guidance, it might be helpful, briefly, to set out the system applicable in such cases. Following the United Kingdom's adoption of the Council of Europe Convention on Action against Trafficking in Human Beings, CETS No. 197 (“the Convention”), which was never incorporated into English law, the Government established a National Referral Mechanism (“NRM”) to give effect to its obligations under the Convention. The NRM's objective is to aid the identification and support of victims of trafficking, to make it easier for all relevant agencies, such as the Home Office, the Police, local authorities, the National Crime Agency and others, to cooperate and share information about potential victims and to facilitate potential victims' access to support services, accommodation and advice. To achieve this objective, the government has established the UK Human Trafficking Centre (“the UKHTC”) and appointed certain officials within it and the Home Office as ‘competent authorities’ who are the decision-makers.
The first step in the NRM is the identification and referral of potential victims to the UKHTC by officials or organisations, known as ‘First Responders’. The UKHTC may deal with the case itself or send it to the most appropriate competent authority within the Home Office to determine. The competent authority must first determine whether it ‘suspects but cannot prove this person is a potential victim of human trafficking’; this is called a reasonable grounds decision. The ‘suspect but cannot prove’ test is a relatively low threshold, lower than the civil standard of proof or conclusive grounds test, perhaps the equivalent of a prima facie case or an arguable case. This decision should be made within five working days of referral to the NRM. Once a competent authority has made a positive reasonable grounds decision the potential victim is given a 45-day recovery and reflection period and any necessary support while the competent authority makes a substantive decision. The support provided includes accommodation, health services and counselling services. The test for making the substantive or conclusive grounds decision is whether “on the balance of probabilities, there are sufficient grounds to decide that the individual being considered is a victim of human trafficking”.
The claimant also refers to Article 11 of the European Directive 2011/36/EU in her skeleton argument however, no substantive submissions were made to the effect that there has been a breach or misapplication of that Directive and, in any event, it appears that the only relevant part is Article 11 (4) which states that “Member States shall take the necessary measures to establish appropriate mechanisms aimed at the early identification of, assistance to and support for victims, in cooperation with the relevant support organisations”. As the defendant points out, it is...
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