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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
B e f o r e :
HIS HONOUR JUDGE CLIVE HEATON QC
Lucy Mair (instructed by Howells) for the Claimant
William Hansen (instructed by Government Legal Department) for the Defendant
Hearing date: 11th May 2015
HTML VERSION OF JUDGMENT
Crown Copyright ©
His Honour Judge Clive Heaton QC:
- This is a substantive hearing in Judicial Review. The Claimant AB, represented by Ms Mair, was born in Nigeria. She challenges the decision of the Defendant, the Secretary of State for the Home Department, represented by Mr Hansen, not to recognise her as a victim of human trafficking for the purposes of the Council of Europe Convention on Action against Trafficking (CAT).
- The Claimant challenges the decision of the SSHD on four Grounds:
(i) The decision is unlawful because the SSHD fails to have any/ any adequate regard to her own policy and/or acts in breach of that policy
(ii) The decision is unlawful because the SSHD fails to have any/any adequate regard to relevant evidence
(iii) The decision in unlawful and/or irrational as the SSHD fails to give any any adequate reasoning for failing to consider the relevant evidence and in reaching conclusions on credibility
(iv) A breach of Article 4 ECHR
- The Defendant resists the claim on all Grounds.
The essential background
- The Claimant was born in Lagos, Nigeria. There is an issue as to her year of birth which is either 1981 or 1986. Her account of her life, which is not agreed, can be broken down into a series of situations in which she found herself:
(i) She was born into a poor family in Lagos. She had 8 siblings. Two of those children died in childhood. Her home circumstances were poor and abusive
(ii) At age 6 she was sent to work for a woman in Lagos as a child domestic servant. She stayed there for "a long time" but then was allowed to return home
(iii) She then spent about a year at home and went to secondary school. In this period she was sexually assaulted by an older step brother
(iv) The Claimant says she was then once again placed in domestic servitude, this time with a woman Grace. She describes her time living with Grace as "hell". She was subject to physical and sexual abuse in this period. At one point she was ejected from Grace's house. Her father returned her there and told her she should remain and threatened her life if she did not. She says that at this point she made an attempt on her own life.
(v) The Claimant was then brought to the UK via Belgium by Grace in 2000 she says. They lived in London. The Claimant was again subject to domestic servitude. She was not paid for her work. She was beaten and had inappropriate sexual comments made about her by the men in the house
(vi) After "a few years" the Claimant was assisted to leave the house of Grace by a friend of Grace called Wally. This was understood by the Claimant to be an "escape" from Grace. The Claimant says she was sexually exploited by Wally. She became pregnant by him and terminated the child. She was thereafter abandoned by him in 2005. It is right to say that while she was living with Wally the Claimant attended college and accessed medical services
(vii) After the time with Wally came to an end the Claimant lived for a time with a friend from college
(viii) In 2006 the Claimant met a man called CD. She has had three children by him in 2007, 2011 and 2013. That relationship was characterised by domestic violence. She eventually left that relationship
(ix) Following leaving CD the Claimant and the children lived in a hostel
(x) On 27th September 2013 the Claimant was sectioned under the Mental Health Act. The children were received into care where they remain. The Claimant sees them three times each week
(xi) The Claimant was discharged from hospital on 13th January 2014.
- As to her immigration history the Claimant initially claimed asylum in 2013. The claim was based upon a fear that if she were returned to Nigeria she would be at risk from: her father; Grace and her associates; CD's family; and the general community as a consequence of her mental health problems. That claim was refused by a decision letter of the 9th July 2014. That letter was sent under cover of a letter of 14th July 2014. By a letter of the same date the Claimant was granted Limited Leave to Remain (LLR) for a reason not covered by the Immigration Rules.
- As to trafficking the Claimant did not make a claim of trafficking herself. However, because of her account a referral was made to the National Referral Mechanism (NRM) on the 21st January 2014. On the 28th January 2014 the SSHD made a "Reasonable Grounds" decision in favour of the Claimant and referred the matter to the Operational Intelligence Unit. That unit assessed the matter as not meriting further referral. Also on the 9th July 2014, the SSHD made a negative Conclusive Grounds decision.
- Finally, as to the litigation history this Claim was filed on the 9th October 2014. I granted permission on 5th January 2015. The matter was heard by me on the 11 May 2015.
The argument before me
- Ms Mair began with submissions as to the standard for the review I perform. She relied on a decision of Mr Philip Mott QC, sitting as a Deputy Judge of the High Court, R(oaoFM)-v-Secretary of State for the Home Department  EWHC 844 Admin) and in particular the discussion at paragraphs 30 to 34. Here the Learned Judge was invited to consider in the context of a trafficking claim whether the standard of review was one of "anxious scrutiny" or the Wednesbury test. He came to the conclusion that the proper standard of review was "anxious scrutiny" on the basis that such a test applies whenever fundamental human rights are in issue. He approved the submission that the practical effect of the "anxious scrutiny" test is "the need for decisions to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account".
- Even if I am against her on that point Ms Mair argues that the Wednesbury test has evolved, and that dependent upon the circumstances, while they are not identical, the differences between Wednesbury reasonableness and a proportionality test is in practice less than might be suggested. Here she relies on Kennedy-v-Charity Commission  UKSC, in particular paragraphs 53-55, and Pham-v-Secretary of State for the Home Department  UKSC 19 paragraphs 115 and 116. Given that this case involves fundamental human rights the result here, she argues, will be very similar whichever test is applied.
- Counsel then moved to the issue of unlawfulness. The first point she made was that by her policies the SSHD has imposed duties and obligations upon herself. While the 2 reports from the psychiatrist who treated the Claimant, and a report from the support agency who had assisted her, Ashiana, were mentioned the SSHD had failed to grapple with the contents thereof at all Ms Mair said. This amounted to a breach of policy and wholly undermined the SSHD's analysis of the Claimant's credibility.
- Ms Mair pointed out that Ashiana was a respected support organisation. It did not simply accept any person onto the project but conducted its own assessment. The support organisation was experienced in this area and had worked with the Claimant for some time. It had concluded that the Claimant was a victim of trafficking. The failure to engage with its conclusions or explain why they were not accepted in even a skeletal fashion rendered the decision of the SSHD both unlawful of itself and irrational as the information was clearly relevant.
- Equally there were two reports from the Claimant's treating psychiatrist. They had been treated in the same way by the decisionmaker, mentioned but not engaged with Ms Mair said. The medical reports were highly significant in that the diagnosis was that the Claimant had longstanding and serious mental health problems. This directly conflicted with the decisionmakers's assertion in the decision letter that the Claimant was not suffering from mental health problems in 2005 she said. Yet there was no mention at all of the content (as opposed to the existence) of either of these medical reports in the decision letter.
- Ms Mair then turned to the issue of police reporting. One of the key planks of the decision letter appears to be the failure of the Claimant to report her trafficking or the abuse she suffered until years after the event. Ms Mair made the point that it is well recognised that victims of trafficking may well not report their situation to the police for a variety of well recognised reasons. There was no expectation of victims of trafficking that they should report their position, but on the other hand there was a positive duty on the authorities to investigate such an allegation.
- So far as this Claimant was concerned she was under no duty to explain why she had not reported the matter. Notwithstanding that she had done so. It was clear from a series of answers in her asylum interview that she was living in fear even after the "escape". At answer 65 on page 153 she says that she was kept locked up by Grace, and was "really scared to escape". At answer 45 in that same document she says that she had not reported Grace post escape because she was "very scared and worried what would happen to me".
- Ms Mair then turned to what she described as the overarching credibility of the Claimant. Counsel took me to the decision letter and pointed out that the Claimant's application had been refused on the face of the letter as "Due to the internal inconsistencies in your account, your credibility has been damaged to the extent that your claim … cannot be believed and is rejected…".
- The alleged inconsistency is not particularised at that point and as Mr Hansen rightly points out it is necessary to look at the letter as a whole to discern what the decisionmaker's conclusions are on this point. Ms Mair went on to submit, with some force, that the decisionmaker had not indentified inconsistencies between accounts given by the Claimant. Nor was there significant inconsistency between the factual evidence the Claimant had given and other factual evidence.
- The inconsistency the SSHD relies on here, Ms Mair submitted, was that the Claimant's conduct did not fit with the decisionmaker's view as to how a victim of trafficking should act. Such an approach she said was fatally flawed.
- By way of illustration Ms Mair took the Court to HK-v-SSHD  EWCA 1037. Here Lord Justice Neuberger says
28. Further, in many asylum cases, some, even most, of the appellant's story may seem inherently unlikely but that does not mean that it is untrue. The ingredients of the story, and the story as a whole, have to be considered against the available country evidence and reliable expert evidence, and other familiar factors, such as consistency with what the appellant has said before, and with other factual evidence (where there is any).
29. Inherent probability, which may be helpful in many domestic cases, can be a dangerous, even a wholly inappropriate, factor to rely on in some asylum cases. Much of the evidence will be referable to societies with customs and circumstances which are very different from those of which the members of the fact-finding tribunal have any (even second-hand) experience. Indeed, it is likely that the country which an asylum-seeker has left will be suffering from the sort of problems and dislocations with which the overwhelming majority of residents of this country will be wholly unfamiliar. The point is well made in Hathaway on Law of Refugee Status (1991) at page 81:
"In assessing the general human rights information, decision-makers must constantly be on guard to avoid implicitly recharacterizing the nature of the risk based on their own perceptions of reasonability."
30. Inherent improbability in the context of asylum cases was discussed at some length by Lord Brodie in Awala –v- Secretary of State  CSOH 73. At paragraph 22, he pointed out that it was "not proper to reject an applicant's account merely on the basis that it is not credible or not plausible. To say that an applicant's account is not credible is to state a conclusion" (emphasis added). At paragraph 24, he said that rejection of a story on grounds of implausibility must be done "on reasonably drawn inferences and not simply on conjecture or speculation". He went on to emphasise, as did Pill LJ in Ghaisari, the entitlement of the fact-finder to rely "on his common sense and his ability, as a practical and informed person, to identify what is or is not plausible". However, he accepted that "there will be cases where actions which may appear implausible if judged by…Scottish standards, might be plausible when considered within the context of the applicant's social and cultural background".
- Both Counsel took me to the later decision of the Court of Appeal (if only by 6 days) in Y-v-Secretary of State for the Home Department  EWCA 1223. Here Keene LJ says:
25. There seems to me to be very little dispute between the parties as to the legal principles applicable to the approach which an adjudicator, now known as an immigration judge, should adopt towards issues of credibility. The fundamental one is that he should be cautious before finding an account to be inherently incredible, because there is a considerable risk that he will be over influenced by his own views on what is or is not plausible, and those views will have inevitably been influenced by his own background in this country and by the customs and ways of our own society. It is therefore important that he should seek to view an appellant's account of events, as Mr Singh rightly argues, in the context of conditions in the country from which the appellant comes. The dangers were well described in an article by Sir Thomas Bingham, as he then was, in 1985 in a passage quoted by the IAT in Kasolo v SSHD 13190, the passage being taken from an article in Current Legal Problems. Sir Thomas Bingham said this:
"'An English judge may have, or think that he has, a shrewd idea of how a Lloyds Broker or a Bristol wholesaler, or a Norfolk farmer, might react in some situation which is canvassed in the course of a case but he may, and I think should, feel very much more uncertain about the reactions of a Nigerian merchant, or an Indian ships' engineer, or a Yugoslav banker. Or even, to take a more homely example, a Sikh shopkeeper trading in Bradford. No judge worth his salt could possibl[y] assume that men of different nationalities, educations, trades, experience, creeds and temperaments would act as he might think he would have done or even - which may be quite different - in accordance with his concept of what a reasonable man would have done."
26. None of this, however, means that an adjudicator is required to take at face value an account of facts proffered by an appellant, no matter how contrary to common sense and experience of human behaviour the account may be. The decision maker is not expected to suspend his own judgment, nor does Mr Singh contend that he should. In appropriate cases, he is entitled to find that an account of events is so far-fetched and contrary to reason as to be incapable of belief. The point was well put in the Awala case by Lord Brodie at paragraph 24 when he said this:
"… the tribunal of fact need not necessarily accept an applicant's account simply because it is not contradicted at the relevant hearing. The tribunal of fact is entitled to make reasonable findings based on implausibilities, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole".
He then added a little later:
"… while a decision on credibility must be reached rationally, in doing so the decision maker is entitled to draw on his common sense and his ability, as a practical and informed person, to identify what is or is not plausible".
27. I agree. A decision maker is entitled to regard an account as incredible by such standards, but he must take care not to do so merely because it would not seem reasonable if it had happened in this country. In essence, he must look through the spectacles provided by the information he has about conditions in the country in question. That is, in effect, what Neuberger LJ was saying in the case of HK and I do not regard Chadwick LJ in the passage referred to as seeking to disagree.
- Ms Mair submits that the decisionmaker here has fallen into exactly the trap identified by the Courts in these two authorities. The decisionmaker has applied her assumptions as to how a victim of trafficking would behave and has rejected the Claimant's account on the basis that it does not conform to those assumptions.
- Finally on this point Ms Mair submits that in any event the application was rejected for inconsistency not implausibility.
- Counsel turned to her Article 4 ECHR point. Here Ms Mair argues that the SSHD was under a duty to investigate as a credible allegation of trafficking had been raised at least by the time of the positive Reasonable Grounds decision. The SSHD should have referred the matter to the police, it was submitted, but she did not do so. Further she did not mount any proper investigation herself. In those two failings she was, counsel submits, in breach of her duty under Article 4.
The Defendant's argument in response
- Mr Hansen began by seeking to deal with a number of preliminary issues. So far as the standard of review is concerned he submitted that I should apply an "unvarnished Wednesbury test". He pointed out that Mr Phillip Mott QC had not been referred to the decision in AA(Iraq)-v-Secretary of State for the Home Department  EWCA Civ 23. This Court of Appeal authority concluded that the proper approach was "unvarnished Wednesbury" and was binding on me he said.
- An issue had arisen in respect of the standard of proof the decisionmaker had applied. The decision letter refers to the balance of probability throughout and if the matter had been left there then there could have been no complaint. However, in the response to the protocol letter the SSHD said that the balance of probability test was a flexible one based upon the severity of the allegation in question, and hence the stronger should be the evidence before it is decided that the balance of probability is established. That description of the balance of probability is of course quite wrong following the decision of the Supreme Court in Re B  UKHL 35 and harks back to the older test exemplified in authorities such as Re H .
- Mr Hansen's response to this point was to say that the decision maker properly applied the correct standard of proof as is evidenced by the decision letter. The fact that the SSHD's response to the protocol letter says something different is irrelevant.
- Turning next to the use of the word "inconsistent" in the decision letter Mr Hansen submits that when looking at the decision letter as a whole it is quite clear how the SSHD came to her decision. He says that the SSHD took into account for example that Wally was Grace's friend at the time that the Claimant "escaped" from Grace and went to live with him. Mr Hansen's submission, of which I made a careful note, was that "the whole account is inconsistent with what we understand as trafficking under the Convention".
- Finally in relation to these preliminary points he responded to the submission of Ms Mair that the decision is characterised by assumption. Mr Hansen pointed out that the decisionmaker had specifically and explicitly warned her self against falling into such error in the decision letter.
- Turning then to his core submissions Mr Hansen began with the CAT. He submitted that the essence of trafficking is that the person said to be trafficked is coerced or tricked into that situation. Control he said was an essential element of the picture.
- Of course he said there is a need to be sensitive when considering such applications to the effect of what is said to have happened to the trafficked person. However, that does not mean it is right to look uncritically at what is being said and come to conclusions about it.
- Turning then to the facts Mr Hansen argued in particular that the account of the Claimant while she was living with Wally was wholly inconsistent with control and hence with trafficking. The Claimant was, on her own account, he said, free to come and go as she wished.
- Mr Hansen then moved on to the medical evidence. He said that the reports of the psychiatrist were taken into account and the demonstration of that is that they are specifically listed in the decision letter. In answer to the point that there was no analysis of that evidence in the decision letter Mr Hansen said that the reports added nothing and consequently the decisionmaker was under no obligation to engage with them to a greater degree than she did. Mr Hansen went on to point out that there was a reference to the Claimant's medical position at the bottom of internal page 29 of the decision letter. He submitted that the decisionmaker was right to conclude that the medical evidence did not explain away how it was the Claimant lived as she did in the UK post her separation from Wally.
- Turning to the Ashiana report Mr Hansen submitted that the decisionmaker had clearly come to the conclusion that it added nothing. If one looked through the report she was right he said as there was no additional information within it.
- I invited Mr Hansen's submissions on two points arising from that submission.
(i) Was not the new information contained within the Ashiana report that this respected and experienced organisation who had worked with the Claimant for some time had formed the professional opinion that the Claimant was a trafficked person, and should that not have been grappled with in the decision letter? Mr Hansen's response was to say that ultimately the decision was for the SSHD and to return to his point that there was nothing new in the report
(ii) Was the decisionmaker not under an obligation at least to explain why she had taken the approach to the report she had? Given that she had provided no reason at all it might be said that Mr Hansen was seeking to descend into the mind of the decisionmaker in making even the submission that the report added nothing new. Mr Hansen's response was to argue that "in a perfect world it would have been" but that this did not constitute such a failing as to undermine the decision letter as a whole.
- Finally Mr Hansen turned to the Article 4 claim. He argued that the obligation to refer to the police under the policy arose when there was information inter alia that might be used to trace the trafficker. Here there was only stale information that the trafficker was called Grace and had lived in Finchley. That clearly was not enough and the SSHD had therefore been right not to refer the matter to the police. Ms Mair in her response pointed out that there was information about Wally and a definite address for him which might have provided a starting point for investigation. Moreover the SSHD did not know what information the police presently held, they might know of Grace and Wally in any event.
Discussion and conclusions
- I begin this analysis with the standard of the review I am to conduct. There was much that was attractive in the submissions of Ms Mair on this issue but ultimately I do not have to come to conclusions about them here. I can reach my decision on the basis of "unvarnished Wednesbury", as Mr Hansen described it, and I do so.
- While the decisionmaker has listed the psychiatrist's reports of October 2013 and January 2014 as considered by her she has not grappled with the contents thereof at all in the decision letter. In my judgment such an approach was not open to her if she were to deal with the matter both lawfully and rationally. In the decision letter at internal page 29 she says this:
"There is no evidence (despite you being registered with a GP) that you had any mental illness at that point which would have prevented you from reporting your traffickers to the authorities in the UK. Your current mental health problems cannot be considered to be a mitigating reason as to why you did not seek help when you were free of Grace and Wally, when at that time you were functioning within society and making a life for yourself in the UK…"
- Contrary to that statement the report from the psychiatrist on discharge says this about the Claimant's mental health history:
"This is [C's] first contact with the psychiatric services. There may have been other dissociative episodes in the past. [C] described cutting herself off from experiences and times when things that have happened that she cannot explain…….. [C] also describes that around the age of 16 the spirit of her female "employer" came inside her, she cannot describe this clearly"
"Our assessment was that [C] was suffering from longstanding and complex PTSD…"
- I note that the date of birth of the Claimant is in issue but she would have been 16 no later than 2002 so probably before she began living with Wally and some years before the period the decisionmaker is speaking of at this point.
- Given the medical evidence in my judgment the decisionmaker was under a clear obligation to explain how she had come to the conclusion that there was "no evidence" that the Claimant was suffering from mental health illness after the separation from Wally. Having wholly failed to do so in my judgment the decision is irrational.
- I turn now to the Ashiana report. This type of information is identified within the SSHD's policies as potentially important. If such a report might be obtainable then the SSHD should do so. The policy at this point is framed in the terms of the imperative. The reasons for that are self evident. The opinions of experienced and respected support organisations who have worked with potentially trafficked persons for some time are likely to provide important assistance to the decisionmaker in coming to his\her conclusions.
- Here a report was obtained from Ashiana. I was told it was not obtained by the Claimant or her representatives. That report expresses the opinion that the Claimant is a trafficked person. Of course that opinion does not bind the decisionmaker. However, the decisionmaker here fails to grapple with that opinion at all, or explain why she disagrees with it. In my judgment given the importance of this material as identified by the SSHD's own policies the decisionmaker was under an obligation to recognise the conclusions of the report, engage with them and explain, however briefly, why she disagreed with them. In failing to do so in my judgment she acted unlawfully in failing to have sufficient regard to her own policy and irrationally in that she did not take the opinion expressed in that report into account.
- That is enough to dispose of this application. I do not rule on the other Grounds it being unnecessary to do so.
- In particular I leave the Claimant's Article 4 claim unresolved. The existence of the OIU and its role in filtering referrals to the police emerged late in the day and the overall evidence on the matter was inadequate for me to come to conclusions on the alleged public law errors of such an approach. Having said that I was concerned that a body within SSHD seemed to be filtering referrals to the police about potentially trafficked persons at all. We have surely learned by now that we best safeguard the vulnerable by the relevant agencies sharing information as widely as possible so that there can be a "joining of the dots" rather than each such agency working in relative isolation.
- I therefore:
(i) Quash the decision of 9th July 2014
(ii) Make a mandatory order for the Defendant to reconsider the Claimant's claim to be a victim of trafficking
(iii) That the Defendant pay the Claimant's reasonable costs to be assessed if not agreed. Any such assessment shall take place on paper
(iv) A Public finding direction for the Claimant
His Honour Judge Clive Heaton QC
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