The Queen (on the Application of Sf) v The Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeSir Stephen Silber
Judgment Date30 September 2015
Neutral Citation[2015] EWHC 2705 (Admin)
Docket NumberCase No: CO/4342/2014
CourtQueen's Bench Division (Administrative Court)
Date30 September 2015

[2015] EWHC 2705 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Sir Stephen Silber

Sitting as a Judge of the High Court

Case No: CO/4342/2014

Between:
The Queen (on the Application of Sf)
Claimant
and
The Secretary of State for the Home Department
Defendant

Phillipa Kaufmann QC and Alison Pickup (instructed by Irvine Thanvi Natas) for the Claimant

Julie Anderson (instructed by Government Legal Department) for the Defendant

Hearing dates: 29 th July 2015

Furthur Written Submissions served on 30 th July 2015, 31 st July 2015, and 9th September 2015 and on 21 st September 2015

Sir Stephen Silber

Introduction

1

The Regime for Identifying Victims of Trafficking

11

The Guidance and the Approach to Evidence

21

(i) Warnings as to why potential victim of trafficking may be inconsistent or late in adducing evidence

22

(ii) Relevance of Criminal Proceedings to the CA Trafficking Inquiry

23

The Background to the Application according to the Claimant

25

The June 2014 Decision

50

Developments after the June 2014 Decision

74

The Issues

78

Issue 1: The Approach to the Challenges Issue

84

Issue 2: The Detective Inspector Borley and Police Investigations Issue

108

(i) Introduction

108

(ii) The weight to be given to the Borley Report

109

(iii) Discussion on the Borley Report

114

(iv) Conclusions on the Borley Report

131

(v) The results of the police investigations

133

Issue 3: The Approach to the Experts' Evidence Issue

(i) The Correct Approach of the Decision Maker to Expert Evidence

138

(ii) The Approach of Ms Stancliffe to the Evidence Adduced by the NSPCC

145

(iii) The NSPCC Evidence

157

(iv) The Approach of Ms Stancliffe to the Evidence adduced by Dr Walsh and Ms Cavendish

164

(v) Conclusion

173

Issue 4: Failure to take Account of the Accepted Evidence

176

Issue 5: The CA's Errors Issue

183

(i) The Warnings Provisions in the Guidance

184

(ii) The Need for Corroboration

186

(iii) Incorrect Statements in the June 3014 Decision

193

Conclusion

197

Introduction

1

S F ("the Claimant"), who is a national of St Lucia and who was born in1994, seeks to judicially review the decisions of the Secretary of State for Home Department made by its Competent Authority ("the CA") for the identification of victims of trafficking under the National Referral Mechanism which concluded that the Claimant was not a victim of trafficking. A decision by the CA that an individual is not a victim of trafficking prevents the individual concerned from invoking the rights, which accrue to victims of trafficking under the Council of Europe Convention on Action Against Trafficking in Human Beings ("CAT").

2

The decision of the CA is of critical importance as it not only affects the position of the victim of trafficking, but it also affects the ability of the State to mount effective prosecutions against traffickers. A person held to have been trafficked will thereby become entitled to a series of rights under CAT and these include the right to assistance to aid recovery (Article 12); to a residence permit in the circumstances laid down in Article 14; to information about and access to compensation procedures (Article 15); for any return to her country to be carried out with "due regard for the rights, safety and dignity of that person" (Article 16); and of particular importance in the present case 1, a right not to be prosecuted for offences directly connected with her experience of being trafficked (Article 28). As the Claimant has been held not to be trafficked, she will not be entitled to any of the benefits and is now at great risk of being prosecuted and then sent back to St Lucia.

3

The decision that the Claimant was not a victim of trafficking was initially made on 3 December 2013, but it was reconsidered and then upheld in light of pre-action correspondence on 20 January 2014 and on 6 March 2014. After the present claim for judicial review was issued, the CA agreed to reconsider the decision, and on 3 June 2014, she issued a new decision ("the June 2014 decision") maintaining that the Claimant is not a victim of trafficking. I will use the term the June 2014 decision to take account of the responses of the CA to representations by Ms Swate Pande of the NSPCC to persuade the CA to reverse it. It is made clear in the Claimant's skeleton arguments that the June 2014 decision is "the primary target of the claim".

4

The June 2014 decision was made on behalf of the CA by Ms Hazel Stancliffe, the Senior Decision Maker/Technical Specialist at the National Referral Mechanism Hub of the Asylum Casework Directorate within UK Visas and Immigration Department at the Home Office, and also by Ms Sharon Gallagher who was the Operational/Technical Specialist Lead at NRM Hub. It is the primary target of this claim, although the CA has subsequently considered further representations made on the Claimant's behalf by the NSPCC. Ms Stancliffe on behalf of the CA responded to those representations on 29 August 2014 and on 3 February 2015. In addition, after permission was granted, Ms Stancliffe on behalf of the CA made a witness statement on 3 June 2015, which explains how the June 2014 decision came to be made.

5

There is a dispute as to how this Court should approach this challenge to the June 2014 decision. In essence, the case for the Claimant presented by Ms Phillippa Kaufmann QC and Ms Alison Pickup is first, that the CA's decisions that the Claimant was not trafficked are irrational, second, that they are based on errors of law, and third, that in Lord Reed's words in Pham v Secretary of State for Home Department [2015] UKSC 19; [2015] 1 WLR 1591 [114], "there should be a searching review of the primary decision maker's evaluation of the evidence" by this Court.

6

Thus the case for the Claimant is that heightened or more rigorous scrutiny should be applied and that there is in the words of Carnwath LJ in R (YH) v Secretary of State [2010] EWCA Civ 116 [24]:

"the need for decisions to show by their reasoning that every factor which tells in favour of the applicant has been properly taken into account".

7

The CA rejected the Claimant's case that she had been trafficked because of her "adverse credibility" and the focus of the Claimant's case has been that this decision should be quashed. Ms Julie Anderson, counsel for the Secretary of State, disagrees

and she contends that it is appropriate to apply a standard Wednesbury approach. She proceeds to submit that the Court must identify an underlying error of law or objective irrationality in order to grant relief but there is no such error of law or irrationality. Ms Anderson stresses that the Court should be concerned with substance and not with semantics.
8

A fundamental issue relates to the way in which the June 2014 decision dealt with the alleged inconsistencies in the Claimant's account bearing in mind that she was a child who was alleged to have been trafficked. The case for the Claimant is that the decision must be quashed for many reasons including that:

i) The Home Office has issued a document entitled "Victims of human trafficking – competent authority guidance" ("the Guidance") which as its name suggests "gives information for staff in [CA] to help them decide whether person referred under the [National Referral Mechanism] is a victim of trafficking";

ii) In considering the Claimant's case, the CA should have attached proper weight to the warnings in the Guidance 2 and specified in the experts' reports 3 that due to the trauma of trafficking, there may be valid reasons why a potential victim's account is inconsistent or why it lacks sufficient detail or why it was submitted late;

iii) The CA did not take into account these warnings and therefore rejected the Claimant's account incorrectly;

iv) The CA wrongly attached "significant weight" to the report of Detective Inspector Borley ("the Borley report") which only held that there was insufficient evidence to meet the threshold of a "Realistic Prospect of Conviction" for submission to the CPS for their consideration of charging those alleged to have trafficked the Claimant;

v) This finding in the Borley report ought to have carried no weight in deciding if the Claimant had been trafficked as (i) the standard of proof required for a criminal conviction of being sure is much higher than the standard of proof required for showing that a person was trafficked which was on the balance of probabilities; and (ii) the Borley report did not take account of the warnings set out in (a) above;

vi) The CA wrongly considered that there was a requirement that the Claimant's evidence had to be corroborated before it could be accepted

vii) There were errors in the factual assertions relied on by the decision maker in reaching adverse conclusions on the Claimant's credibility; and

viii) Irrespective of whether I apply Ms Kaufmann's test for considering how challenges to the June 2014 are to be made or that contended for by Ms Anderson, the decision that the Claimant was not trafficked has to be quashed.

9

The case for the Secretary of State is that it was up to the decision maker to decide what weight to attach to all the evidence and that in any event for the June 2014 decision to be quashed, there had to be an underlying error of law or objective irrationality, but none existed. Further, there was nothing Wednesbury irrational about the decision refusing to find that the Claimant...

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