MR FOR JUDICIAL REVIEW OF A DECISION OF THE SECRETARY OF STATE FOR THE HOME DEPARTMENT [2019] ScotCS CSOH_52 (09 July 2019)

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URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSOH_52.html
Cite as: [2019] CSOH 52, [2019] ScotCS CSOH_52, 2019 GWD 24-376

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P165/19
OUTER HOUSE, COURT OF SESSION
[2019] CSOH 52
FURTHER NOTE OF REASONS BY LORD BRODIE
In the petition
MR
for
JUDICIAL REVIEW
Petitioner
of a decision of the Secretary of State for the Home Department dated 20 November 2018
that the petitioner is not a victim of human trafficking
Pursuer: Caskie; Drummond Miller LLP (for Jain, Neil & Ruddy, Solicitors, Glasgow)
Defender: R MacLeod; Office of the Advocate General
9 July 2019
[1]       This petition for judicial review was put before me for decision, in terms of RCS 58.7
and section 27B of the Court of Session Act 1988, as to whether permission to proceed
should be granted. In a previous Note of Reasons I indicated to parties that I was minded to
refuse permission as I was not then satisfied that the petitioner had real prospects of success
in establishing that the decision of 20 November 2018 which she sought to review was
unlawful. I therefore ordered an oral hearing in order to be addressed on the point, as
envisaged by the Practice Note (see Dinsmore v Scottish Ministers [2019] CSOH 18).
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[2]       That hearing was held on 18 June 2019 when I was addressed by Mr Caskie,
Advocate, on behalf of the petitioner and Mr Roderick MacLeod, Advocate, on behalf of the
respondent who is the Advocate General acting on behalf of the Secretary of State for the
Home Department. Having considered their respective submissions, I decided to refuse
permission for the petitioner’s application for judicial review to proceed. My reasons are as
follows.
[3]       The petitioner is Ms MR. By way of petition she seeks to review the decision of the
Secretary of State Home Office, intimated by letter dated 20 November 2018, that the
petitioner is not a victim of human trafficking. The respondent has lodged answers to the
petition. In this Note I use the expression “respondent” to include the official of the
Competent Authority who made the decision of 20 November 2018.
[4]       The plea-in-law of the petition is: “The decision the petitioner is not a victim of
trafficking being unlawful et separatim irrational reduction should be granted as sought”.
Having heard Mr Caskie, I understood the petitioner to present a reasons challenge rather
than a Wednesbury challenge, albeit that as Mr Caskie observed, where there are no reasons
or inadequate reasons for a decision, the decision can be regarded as an irrational one. The
petitioner’s position is set out in statement 11:
“…no reasonable Secretary of State could conclude other than that the petitioner
meets the second of the criteria for being a victim of human trafficking. In any event
the Secretary of State has failed to provide any reasons whatsoever in respect of the
conclusion that the behaviour to which the petitioner was subjected was not in fact
deception, placing her in a position of vulnerability and abusing their power over
her. The failure to provide adequate reasons to permit the informed reader to
understand the basis upon which the Secretary of State reached the conclusion that
he did, means that the decision is an unlawful one.”
[5]       The test for permission which is applicable in a case such as the present is set out in
section 27B of the 1988 Act as follows:
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“27B Requirement for permission
(1) No proceedings may be taken in respect of an application to the supervisory
jurisdiction of the Court unless the Court has granted permission for the application
to proceed.
(2) Subject to subsection (3), the Court may grant permission under subsection (1) for
an application to proceed only if it is satisfied that
(a) the applicant can demonstrate a sufficient interest in the subject matter of
the application, and
(b) the application has a real prospect of success.”
[6]       The expression “real prospect of success” is to be understood by reference to
Wightman v Advocate General 2018 SC 388 at paragraph 9.
[7]       Attached to the respondent’s decision letter is an annex giving reasons for his
decision. It is headed “Conclusive Grounds Consideration Minute”. It includes the
information that the petitioner entered the UK on 19 August 2003 with a multiple visit visa
valid until 12 February 2004. The petitioner made no immediate attempt to regularise her
continuing stay in the UK. She worked for a family of Indian origin until 2010 in
circumstances which is characterised as “domestic servitude” in the petition. She submitted
a further Leave to Remain application on 22 January 2011 (there would appear to have been
an earlier application in 2008). This was refused. I have not noticed any reference to further
contact with any relevant authority before July 2016 when the petitioner claimed that her
entry into the UK and her history there until 2010 had constituted human trafficking. On
27 July 2016 the respondent, as the Competent Authority, acting under the National Referral
Mechanism in respect of non-European Economic Area nationals, decided that there were
reasonable grounds to believe that the petitioner had been a victim of human trafficking.
That “reasonable grounds decision” gave rise to certain obligations on the part of the UK
towards the petitioner, with a corresponding degree of protection, by virtue, inter alia, of the
Council of Europe Convention on Action Against Trafficking in Human Beings (“ECAT”)
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(see ECAT articles 10(2), 12 and 13; MS (Pakistan) v Secretary of State for the Home Department
[2018] 4 WLR 63 at paras 20 to 22).
[8]       With a view to the implement of its international obligations under, inter alia, ECAT,
the UK government has instituted the National Referral Mechanism. The respondent has
issued guidance to officials. At the time which was relevant to consideration of the
petitioner’s status that guidance included Victims of human trafficking competent authority
guidance, 24 October 2013 (the “2013 Guidance”) which made provision for decision-making
as to whether an individual was a “victim” of trafficking in human beings as defined by
article 4 of ECAT (the current guidance would appear to be Victims of modern slavery -
competent authority guidance, 29 April 2019). Provision was made in the 2013 Guidance for a
“conclusive grounds decision” to finally determine the status of those in respect of whom
there were reasonable grounds to believe that they were the victims of trafficking. The
decision of 20 November 2018 which the petitioner seeks to challenge was a “conclusive
grounds decision”. An adverse conclusive grounds decision is not subject to appeal. Nor
can it be made subject of an indirect challenge in the course of an appeal in terms of
section 82(1) of the Nationality Immigration and Asylum Act 2002, as amended, against a
removal direction, other than in limited circumstances (MS (Pakistan) para 69). Thus if the
decision of 20 November 2018 is to be challenged by the petitioner it would seem that it
must be by judicial review. The respondent does not suggest otherwise.
[9]       A conclusive grounds decision that a person has been a victim of trafficking does not
give that person an automatic right to remain in the UK but article 14 of ECAT provides that
a person found to have been a victim shall be issued with a residence permit if the
competent authority considers their stay is necessary owing to their personal situation, and
further provides that if a victim submits an application for another kind of residence permit
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regard should be had to the fact that she has held a residence permit issued in conformity
with article 14. Accordingly, that a person has been found to have been a victim of
trafficking will be relevant if that person applies for discretionary leave to remain in the UK
(see Home Office, Discretionary leave considerations for victims of modern slavery version 2.0 of
10 September 2018). It follows that the petitioner has a sufficient interest in challenging (by
an application for judicial review) the decision of 20 November 2018 that she is not a victim
of trafficking.
[10]       Whether the petitioner is a victim of trafficking is a mixed question of fact and law in
that it involves the application of legal criteria to the primary facts in an instant case with a
view to determining whether the instant case meets the legal criteria. That may involve an
element of assessment or appreciation. In the present case, the respondent has accepted the
veracity of the petitioner’s account, as summarised in statements 5 and 6 of the petition, of
how she came to enter the United Kingdom and her circumstances while working there.
The question for the respondent therefore came to be whether the petitioner was to be
regarded as a victim of trafficking in human beings as that expression is defined in article 4
of ECAT.
[11]       In terms of article 4,"Trafficking in human beings" shall mean the recruitment,
transportation, transfer, harbouring or receipt of persons, by means of the threat or use of
force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power
or of a position of vulnerability or of the giving or receiving of payments or benefits to
achieve the consent of a person having control over another person, for the purpose of
exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of
others or other forms of sexual exploitation, forced labour or services, slavery or practices
similar to slavery, servitude or the removal of organs.
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[12]       The respondent analysed human trafficking as so defined as having three
components: an action, which is achieved by a means, for the purpose of exploitation which
shall at a minimum have certain features. He accepted the action; there had been
recruitment. He did not accept the means and he did not accept that the degree of
exploitation included any of the minimum features. As I understood Mr Caskie, while he
might have argued that no reasonable decision-maker could have concluded that the
petitioner’s account did not demonstrate relevant means, he accepted that it was open to a
reasonable decision-maker to conclude that the petitioner’s account did not amount to her
having been placed in a position of servitude (or any other of the minimum features of
exploitation). However, he did argue that on any view the petitioner’s account placed her
case on the margins of trafficking; in other words she had been recruited, that recruitment
had involved deception and fraud and that she had been exploited by being placed in a
condition which could reasonably be regarded as that of domestic servitude, as opposed to
being the employee of bad employers. In these circumstances, Mr Caskie submitted the
respondent was bound to give particularly clear reasons for his decision, at least if the
decision was to be on the bad employers side of the line. It was Mr Caskie’s submission that
the respondent had failed to do so. Mr MacLeod for his part submitted that the
respondent’s reasoning was entirely adequate.
[13]       It is uncontroversial that, generally speaking, a decision-maker must give proper and
adequate reasons for his decision that deal with the determining issues in an intelligible
way. The decision must leave the informed reader in no substantial doubt as to what the
reasons for it were. However, so long as the reasons are adequate the decision-maker is
entitled to express them concisely. When considering the adequacy of reasons, it is
necessary to take into account the nature of the decision, the context in which it has been
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made, the purpose of the reasons and the context in which they are given: South Bucks
District Council v Porter (No 2) [2004] 1 WLR 1953 at paragraph [36], Uprichard v Scottish
Ministers 2013 SC (UKSC) 219 at paragraphs [44] and [47] (both cases on planning decisions
but of more general application).
[14]       In order to make the conclusive grounds decision of 20 November 2018 the
respondent had to consider whether the petitioner’s account of the facts brought her within
the definition of a “victim” of “trafficking in human beings” which is provided by article 4
of ECAT. In that the wording of the definition is in rather broad terms that involved an
element of judgement as to the proper exercise of which there may be room for a difference
in view. Particularly when it comes to determining whether a certain condition amounts to
“servitude”, the judgement is one of degree. There is no suggestion of error in law on the
part of the respondent. In my opinion, by contrasting the definition with what he sees as the
material facts, the respondent provided adequate and intelligible reasons for his adverse
decision. He did not consider that the petitioner’s recruitment had been by any of the
prohibited means and he did not consider that the circumstance of her work between 2003
and 2010 constituted servitude and he explains why in the pre-penultimate, penultimate and
final pages of the Conclusive Grounds Consideration Minute. That explanation is in the
form of reiterating the aspects of the petitioner’s narrative which, in the respondent’s view,
point away from the means and purpose elements in the trafficking criteria. I find it difficult
to see what more the respondent might be expected to do when making a decision of this
sort.
[15]       Of course when deciding on whether to grant permission to proceed the Lord
Ordinary is not being asked to reach a substantive decision. In order to grant permission he
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must merely be satisfied that the application can be said to have real prospect of success. I
have not been so satisfied.



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