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|Neutral Citation Number:  EWHC 56 (Admin)
|Case No: CO/4237/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN MANCHESTER
IN THE MATTER OF AN APPLICATION
FOR JUDICIAL REVIEW
|Manchester Civil and Family Justice Centre,
1 Bridge Street West, Manchester, M60 9DJ.
B e f o r e :
MR JUSTICE DOVE
Camille Warren (instructed by Paragon Law) for the Claimant
Sam Karim (instructed by Government Legal Department) for the Defendant
Hearing dates: 3rd December 2015
HTML VERSION OF JUDGMENT
Crown Copyright ©
MR JUSTICE DOVE :
- On 6th December 2013 the defendant refused to recognise the claimant as a victim of trafficking. An earlier decision had been made by the defendant that there were reasonable grounds to believe that the claimant was a victim of trafficking on 15th March 2013. The background to that decision was that the claimant contended she had arrived in the UK in October 2011, and on 11th January 2012 she had been encountered and arrested on suspicion of using a false UK passport to obtain a National Insurance number. She was also suspected at that time of being illegally in the UK. Following this on 3rd February 2012 she claimed asylum. On 12th June 2012 she was convicted of three offences of identity document fraud and sentenced to 15 months imprisonment concurrently. On 14th June 2012 the defendant sent the claimant a notice of liability to deportation, and a deportation order was signed on 16th October 2012. On 26th October 2012 the claimant lodged an appeal against the deportation order. During the course of the appeal proceedings one of the defendant's officers having reviewed her file identified that she should be referred to the National Referral Mechanism as a potential victim of trafficking. Consequent upon this process the reasonable grounds decision referred to above of 15th March 2013 was made.
- An initial conclusive grounds decision (subsequent to the reasonable grounds decision), in respect of the trafficking issue was made on 14th May 2013. That decision was reconsidered following receipt of an expert report from Ms Lara Bundock on behalf of the claimant and a further negative conclusive grounds decision was reached on 29th November 2013. In the context of a judicial review of that decision the defendant withdrew her decision, leading to the issuing of the decision of 6th December 2013, which is the subject of these proceedings.
- The circumstances of the claimant coming to leave Pakistan are not in issue. It is accepted that in 2008 she was widowed in Pakistan following the death of her husband. Following her husband's death his children sought to prevent her inheriting his money and property through the use of legal proceedings. Her husband's assets were frozen and as a result the claimant was left without money and in need of borrowing from a property dealer called Mr Kazir. Mr Kazir sold the claimant's land without telling her and without giving her any of the proceeds of sale. He induced her to travel to Rawalpindi where he raped her in a hotel room, and told her that if she complained he would say she initiated the sexual activity. He told her that if she continued to have sex with him he would give her money. For fear of honour killing from her family or her deceased husband's family the claimant did not disclose the rape and continued to have sex with Mr Kazir for money. When the claimant discovered that Mr Kazir had sold her property and taken the proceeds of sale she sought to complain to the Land Registry who notified Mr Kazir. Mr Kazir then made threats to kill her. She had further difficulty with another property dealer who threatened to kill her as did an associate of Mr Kazir called Mr Hussain. The claimant became suicidal as a result of these threats and indeed attempted suicide on two occasions.
- At this low point in her life the claimant was introduced to friends of her aunt in Pakistan who told her they had seen an advert in a paper for a British man who was looking for a wife. The claimant agreed to her details being passed to this man because she was keen to escape the circumstances in which she found herself. The man who had placed the advert was a Mr Waheed. He travelled to Pakistan to meet the claimant and promised to marry her if she came to the United Kingdom. She agreed and this led to her entry into the United Kingdom around October 2011, using the British passport which ultimately proved to be false and led to her arrest.
- When she arrived in the United Kingdom Mr Waheed made no attempt to marry her. She was forced to live in his house for three months doing domestic chores and providing him with domestic services such as cooking and washing and initially was expected to have sex with him. Whilst at first she believed that Mr Waheed would marry her, ultimately she realised that she had been misled. Some three months after arriving in the UK the claimant was sent by Mr Waheed to claim benefits and this is what led to her arrest on 11th January 2012. Whilst she was in prison for the offences described above she was informed by Mr Waheed that he had no intention of marrying her.
- As set out above, at paragraph 24 of the decision letter dated 6th December 2013 the defendant does not seek to dispute the circumstances leading up to the claimant leaving Pakistan. The defendant does however note various sources of evidence in the decision letter at paragraphs 10-23 in relation to events after the claimant had arrived in the UK and sets out a number of inconsistencies in that evidence. This material is subsequently relied upon in reaching factual conclusions for the purposes of the decision. In particular, the decision notes that in a letter from Mr Waheed to the Hucknall Road Medical Centre of 16th January 2012, in the response to the liability to deportation notice dated 16th July 2012, and in letters from the claimant's representatives dated 20th July 2012 and 22nd August 2012 the claimant, Mr Waheed or those representing the claimant state that the claimant was in a relationship with Mr Waheed whereby she was his partner. By contrast, in her asylum screening interview dated 8th February 2012 and in her substantive asylum interview dated 15th February 2012 the claimant had stated that she was living with a family friend and looking after him. In statements to a First Responder dated 12th March 2013, and in her asylum screening interview and substantive asylum interview she is noted as saying that she had fled Pakistan as a result of fear of non state agents namely the property agents who had made threats to kill her as set out above. Furthermore in the Judge's sentencing remarks of 11th June 2012 it was noted by the Judge that she had left Pakistan because on the death of her husband she had been swindled out of his land and was under threat from irate relatives.
- As stated above, the factual materials which were before the defendant for the purposes of reaching her decision included an expert's report from Ms Bundock who is a caseworker with an organisation called City Hearts in Sheffield. She is a fully qualified social worker with experience in dealing with women who have been groomed or sexually exploited. The organisation for which she works provides a protected safe house for potential victims of human trafficking, and was subcontracted by the Salvation Army who in turn were contracted by the Ministry of Justice to oversee persons being assessed within the National Referral Mechanism for those alleged to be a victim of trafficking. As a result Ms Bundock has expertise in assessing the merit of claims by potential victims of trafficking. She had been the claimant's case worker following her arrival at the safe house on 12th March 2013.
- Ms Bundock's report commences by examining the claimant's position at the point at which she was potentially trafficked from Pakistan. She notes that in her account the claimant "indicates not only a lifestyle of poverty but also one that was dependant on others to help her to live". Ms Bundock also considers the claimant's circumstances immediately after her husband's death in the following way at paragraph 15 of her report:
"15. Prior to her husband passing away, there seems to be no evidence of violence towards [the claimant]. However, following his death she recalls a number of incidences of violence or threats of violence related to borrowing money and negotiating her husband's property including "Hyatt took me to a hotel and it was there that he first raped me" (paragraph 8 First tier tribunal witness statement) "Hyatt came to my house…he threatened me and said…he would kill me and everyone else in my house" (paragraph 10) "On one occasion [Hussain] and his wife dragged me into their car and said they were going to kill me" (paragraph 14). Furthermore, the idea of violence and threats of violence connected with land grabbing is not unknown in Pakistan according to the country expert from paragraphs 32-52…
17. Given [the claimant's] situation prior to her potential trafficking, I believe the evidence suggests that she was highly vulnerable to traffickers as she meets every "push" factor set down in the research by Huda (2006). I would postulate that she was particularly vulnerable to deception, coercion and the abuse of power and vulnerability…
19. Previously, [the claimant] has not shared many aspects of the exact details of how she was brought to the UK nor how she was treated or how she felt during the time with Mohammed Waheed, in fact there are only two paragraphs in her original statement regarding this period of time. [The claimant] did not realise the relevance of this information and felt shame about sharing some of the details."
- Towards the end of the report Ms Bundock turns her attention to considering the credibility of the account which the claimant had given. She notes that the claimant had exhibited symptoms of post-traumatic stress disorder. A diagnosis of post-traumatic stress disorder was also supported by a medical report from Dr Ibbotson dated 7th March 2013. The symptoms which she exhibited were observed by Ms Bundock to be "concurrent with a well regarded quantitative longitudinal study regarding the short and long term effects of trafficking (Zimmerman et al 2006)".
- In her report Ms Bundock analyses the claimant's account against the three essential elements of human trafficking to which I shall return in detail in due course, namely, whether the claimant had established that the act, the means and the purpose amounted to human trafficking in her case. So far as the act was concerned she concluded as follows:
"36. Let us consider the specifics of [the claimant's] account. She was offered a better life in the UK through the marriage to Mohammed and that once there she would be able to work or get benefits and be free from her financial difficulties, control and violence. However, once she reached the UK, Mohammed did not marry her, she was not able to get a job or claim benefits she was not paid any money by Mohammed for doing housework or cooking, she was still under the control of another person, expected to have sex with him and not treated well as the right to eat and leave the house was withheld. I do not believe that [the claimant] had knowledge of this before she agreed to come to the UK."
- Turning to the means Ms Bundock was satisfied that deception had been used in order to encourage her to come to the UK by Mr Waheed and that therefore the means employed satisfied the definition of trafficking. Finally turning to the purpose she observed as follows:
"47. Although this is not a "classic" example of domestic servitude as there is no official "employee/employer" situation, I believe there is enough evidence to support the idea that she was used as a slave in Mohammed Waheed's house and that there could also be intention to use her for the purpose of benefit fraud/criminal exploitation."
- On the basis that Ms Bundock found the claimant's account to be credible and that it evidenced the essential ingredients of trafficking Ms Bundock concluded that the claimant had established her claim to be a victim of human trafficking.
- The decision which was reached by the defendant against the background of the factual material which is set out above is contained in essence within the following paragraphs of the decision letter:
"40. The fact that [the claimant] claimed to be a victim of trafficking in March 2013 after receiving an adverse immigration decision, casts further doubts on her credibility, as she had been legally represented in the UK since her arrest in January 2011.
41. It is accepted that [the claimant] has the medical conditions stated in the report from Dr Ibbotson dated 7th March 2013, but it is not accepted these conditions have been brought on by her being a victim of human trafficking.
42. As demonstrated by [the claimant] own use of the law, the Land Registry and having legal representation in Pakistan up to one month prior to leaving Pakistan, it is not accepted that she would be unable to receive justice in Pakistan as a female, as stated in the legal report completed by Uzma Moeen on 17th January 2013.
43. At various stages of their dealings with the UK authorities, directly and through representatives, [the claimant] and Mr Waheed have variously claimed they are partners and family friends of several years standing known to each other in Pakistan, also their rights of a family life would be breached if [the claimant] was returned to Pakistan and that [the claimant] was his carer due to the poor health of Mr Waheed.
44. I have not been made aware of any Police report having been made by your client regarding being a victim of human trafficking. As your client was aware where she was staying and who she was staying with in the UK, there is no reason not to have done this if Mr Waheed was exploiting her in any way.
45. Your client's account of her experiences indicate that she left Pakistan to escape a fear of non state agents and was not deceived into believing she would be placed into employment in the UK. She has claimed she was prevented from leaving the house unaccompanied where she lived, however she and Mr Waheed have described her as the carer of Mr Waheed. It is not accepted [the claimant] would not have to shop for example as part of her caring responsibilities and therefore not accepted she was unable to leave the house they shared unaccompanied. She has not claimed she was exploited in employment in the UK. The material facts are that she was discovered trying to obtain a NI number in the UK with a false document.
46. Your client has claimed to have experienced rape, threats and theft of her property from males in Pakistan, yet she states she moved to the UK and believed the statements made by a Pakistani male she barely knew. It is claimed that [the claimant] was "vulnerable" due to her experiences in Pakistan, but having lived in Pakistan by her own evidence until she was 35 and having the experiences she claims, being aware of the culture in Pakistan and potential situation of Pakistani females in a marriage, it is not accepted she would undertake this huge risk with another Pakistani male she barely knew.
47. For the reasons stated above your client's account of her experiences is inconsistent with indicators of trafficking.
48. Furthermore, the Judge's sentencing remarks from your client's criminal trial for a crime of deception, do not reference trafficking/coercion/deception at all, but show that your client pleaded guilty to the offences she was convicted of.
49. The competent authority does not accept that [the claimant's] circumstances fit the three constituent parts of a trafficking definition as stated by Ms Bundock in her report.
50. The Act – the person has been subject to the act of recruitment/transportation/transfer/harbouring or receipt. At paragraphs 35-38 of her report Ms Bundock has stated that [the claimant] fits this definition due to being recruited by the people who brought her into contact with Mr Waheed with the incentive of a better life and that the fraudulent passport was obtained for her.
51. For the reasons set out in the paragraphs above, it is not accepted that [the claimant] fits this definition, as the evidence indicates that she was leaving Pakistan to avoid problems with non state agents and came to the UK with Mr Waheed of her own volition to be a partner/wife. [The claimant] was not promised by Mr Waheed that she was coming to the UK for example for employment or in the belief that she was bypassing immigration control by employing Mr Waheed as an agent to facilitate entry to the UK. Also there is no evidence of any connection between Mr Waheed and Mr Hussain who obtained the passport for her.
52. The means- By means or threat of use of force or use of force or other form of coercion/of abduction/of fraud/of deception/of abuse of power/of a position of vulnerability/of giving or receiving payments of benefits to achieve the consent of a person having control over another person. At paragraphs 39-42 of her report Ms Bundock has stated that [the claimant] fits this definition due to being deceived and vulnerable.
53. [The claimant] potentially fits the deception, abuse of power and vulnerability definitions. However [the claimant] had the confidence to use the law and Government bodies in Pakistan regarding her property dispute, refused to sign away her land ownership and has variously stated her intention to marry and not marry Mr Waheed which indicates she is not vulnerable as she has been able to act independently. [the claimant] has variously been described in her own evidence (including when she was legally represented) as Mr Waheed's partner, friend and carer, therefore it is not accepted Mr Waheed has a hold on her. The evidence in this case indicates that [the claimant] principally came to the UK to escape non state agents in Pakistan and came as the willing partner/wife to Mr Waheed, therefore it is not accepted she meets the deception definition.
54. The purpose- For the purpose of exploitation. At paragraphs 39-42 of her report Ms Bundock has stated that [the claimant] fits this definition due to possibly being intended to be used for the purposes of a sham marriage, benefit fraud or domestic servitude.
55. [The claimant] may have had an unsatisfactory experience as the partner of Mr Waheed, however that does not mean she has been exploited. There is no evidence of Mr Waheed profiting from [the claimant] being in the UK.
56. Key elements of trafficking do not appear to be present within your client's case; she was not recruited and transported from Pakistan to the UK and she has not been coerced through threats, physical violence, sexual abuse or other methods.
57. It is not accepted that your client is a victim of human trafficking. Consequently, it is not considered that your client requires the assistance of protection the Convention affords."
- It can be seen from what has been set out above that the credibility of the claimant's account of circumstances in the UK was not accepted and that her credibility was regarded as fatally flawed by inconsistencies in her account and the delay in her claiming that she was a victim of trafficking. Furthermore on the basis of those evidential conclusions, and in particular the view that the claimant was simply escaping the attention of non state agents rather than having been trafficked, the defendant formed the conclusion that she did not qualify for protection under the Convention.
The Convention and the defendant's guidance
- The Council of Europe Convention on Action against Trafficking in Human Beings is described in Article 1 as having as its purpose preventing and combating trafficking in human beings along with the protection of the human rights of victims of trafficking as well as ensuring effective investigation and prosecution of their cases. Article 4 of the Convention defines trafficking in human beings in the following way:
"4(a) "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."
- Article 5 requires the parties to the Convention to take measures to, amongst other things, establish or strengthen effective policies and programmes to prevent trafficking in human beings. Article 10 requires the parties to adopt legislative or other measures as may be necessary to identify the victims of trafficking. Article 12 requires the parties to give assistance to the victims of trafficking in various ways so as to support their wellbeing.
- The defendant is the Competent Authority for the purposes of complying with the obligations under the Convention. For the purposes of discharging those obligations the defendant has produced policy guidance, and in particular for the purposes of this case a document entitled "Victims of human trafficking – competent authority guidance". This policy guidance provides extensive material assisting the making of decision relevant to the Convention. For the purposes of these proceedings Ms Warren makes no suggestion that there is anything unlawful about the content of this Guidance. Indeed she relies upon it in the sense that she contends that in the decision which was reached the defendant failed to apply her policy as set out in the Guidance. In that connection it is therefore necessary to set out some of the passages which are key to the decision in this case.
- In dealing with the exploitation limb of the definition of trafficking the Guidance includes within that definition those who have been sexually exploited. In relation to female victims the Guidance provides as follows:
"There is no typical experience of people who have been trafficked for sexual exploitation. Some are held captive, assaulted and violated. Others are less abused physically, but are psychologically tormented, and live in fear of harm to themselves and their family members. The way in which different people describe their experiences means you must not rely on victims to self-identify in explicit or obvious ways."
- The Guidance goes on to consider other potential forms of exploitation and includes within them those who have been trafficked and forced to work as domestic servants. The Guidance provides as follows:
"Domestic servitude (the state or condition of a slave) often involves people working in a household where they are:
- subjected to exhausting working hours
- forced to live in unbearable conditions
- forced to work for little or no pay.
The problems of domestic workers held in servitude are made worse by the fact it is often very difficult for them to leave their employers and seek help. Abusive employers create physical and psychological obstacles by, for example, instilling fear in the domestic slave by threatening them, or their relatives, with further abuse or deportation, or by withholding their passport."
- The Guidance goes on to provide advice in relation to sharing information with the Police. In that connection the Guidance provides as follows:
"A potential victim of trafficking is a potential victim of a crime. Trafficking is a very serious crime, punishable by up to 14 years in prison. You must refer all credible allegations to:
When sharing information with the Police, you must carefully consider that:
- Potential victims are under no obligation to cooperate with the Police themselves and some potential victims may not want the police the be involved at all
- In some cases the Police may not pursue a case unless the individual engages with them directly. It is not for you to press the Police to pursue a criminal investigation or convince the potential victim to cooperate. In these circumstances you must minute (note) the file with the outcome."
- The Guidance goes on to provide instructions in relation to the assessment of the credibility of a claimant. For the purposes of the present case the important elements of the Guidance are firstly under the heading of "credibility – level of detail and consistency". The Guidance provides as follows:
It is also reasonable to assume that a potential victim who has experienced an event will be able to recount the central elements in a broadly consistent manner. A potential victim's inability to remain consistent throughout their written and oral accounts of past and current events may lead you to disbelieve their claim. However, before you come to a negative conclusion, you must first refer back to the first responder or other expert witnesses to clarify any inconsistencies in the claim.
Due to the trauma of human trafficking there may be valid reasons why a potential victim's account is inconsistent or lacks sufficient detail.
For information, see related link: Credibility – mitigating circumstances."
- The Guidance in relation to credibility goes on to consider gender and culture and notes that "women may be unable to disclose relevant details due to cultural and social norms". The Guidance also, as foreshadowed in the quotation set out above, provides particular guidance in relation to mitigating circumstances which are pertinent to trafficking claims and pertinent to the consideration of credibility in trafficking claims. The Guidance provides as follows:
"Credibility - mitigating circumstances
This page gives information for competent authority staff about the mitigating circumstances which can affect whether a potential victim's account of trafficking is credible.
When you assess the credibility of a claim, there may be mitigating reasons why a potential victim of trafficking is incoherent, inconsistent or delays giving details of material facts. You must take these reasons into account when considering the credibility of a 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 (particularly those of a sexual nature…
A key symptom of post-traumatic stress is avoidance of trauma triggers, or of those things that cause frightening memories, flashbacks or other unpleasant physical and psychological experiences. Because of these symptoms a person may be unable to fully explain their experience until they have achieved a minimum level of psychological stability. You must not view a delay in disclosing of facts as necessarily manipulative or untrue. In many cases it is the result of an effective recovery period and the establishment of trust with the person they disclose the information to."
- Ms Warren on behalf of the claimant advances her case on the basis of two Grounds. Ground 1 is a failure by the defendant to apply her policy in relation to the correct approach to the assessment of credibility in various aspects in the decision letter. Firstly, she submits that there was a failure to apply the Guidance in relation to the approach to consistency and delay in disclosure of the account that underpinned the claimant's contention that she had been trafficked. The Guidance in particular required a variety of factors which were present in the current case to be taken into account and specifically considered before inconsistency or delay in disclosure could properly found a conclusion that the claimant was not credible. Those particular features were the consideration of the claimant's cultural and social norms in relation to the facts to be disclosed, and also the specific factors set out above which could be relevant and account for inconsistency in a trafficked person's account of their claim. In addition to, for example, feelings of shame or trauma the Guidance draws specific attention to post-traumatic stress disorder as a factor which the defendant was required to take into account, but which she had not taken into account, notwithstanding her acceptance of the medical evidence that the claimant was suffering from this condition.
- In related submissions Ms Warren contends that the defendant failed to have proper regard to Ms Bundock's expert report which specifically engaged with these features of the claimant's case and applied them in reaching her conclusion that they provided a potential explanation for the late disclosure of the claimant's account. Reference to expert evidence is embedded in the Guidance, she submits, but the expert evidence had not been properly taken into account by the defendant in reaching her conclusions.
- Two further features of the decision letter are relied upon within Ground 1. Firstly, the defendant's reliance on the fact that the claimant had not made a complaint to the Police was, it was submitted, plainly inconsistent with the Guidance set out above which makes plain that it is the defendant's responsibility to refer credible allegations to the Police, and following the defendant's reasonable grounds decision no such report had been made. In those circumstances the claimant not reporting matters to the Police could not properly be a reason for disbelieving her. Finally, Ms Warren draws attention to the reliance by the defendant in paragraph 40 of the decision on the suggestion that the claimant had only claimed to be a victim of trafficking after an adverse immigration decision. This was, she submitted, a significant error of fact leading to taking account of an immaterial consideration. In fact the claimant had never initiated a claim to be a victim of trafficking. That claim had been initiated by the defendant's officer who had referred the claimant's case to the National Referral Mechanism on 12th March 2013.
- In relation to Ground 2 Ms Warren contends that the defendant had applied a fundamentally flawed understanding of the definition of trafficking to the claimant's case. In particular, in relation to paragraph 55 of the decision she contends that the defendant wholly misunderstood the definition of exploitation which includes domestic servitude. Describing the claimant's account as being "an unsatisfactory experience" demonstrated that the defendant had failed to apply the full legal definition of trafficking which renders consent to the exploitation irrelevant. All of the ingredients of trafficking were made out, it was submitted, on the account which the claimant had given.
- It is right to observe that the legal approach to decisions in relation to persons claiming to be trafficked has been significantly refined since the decision was reached in the present case. In essence the legal principles which emerge from the authorities can be distilled as follows:
i) Having adopted a policy in relation to the treatment of claims by persons who have potentially been trafficked it is an error of law not to follow and apply that policy unless there are reasonable grounds to do so and an explanation is provided: see Lumba v SSHD  UKSC 12;  1 AC 245.
ii) The Guidance provides specific and bespoke policy in relation to the approach and assessment of trafficking claims, bearing in mind the particular features which may arise in the consideration of such cases. For instance, in relation to credibility the Guidance provides specific policy in respect to the question of how credibility is to be approached bearing in mind that a conventional approach based on the examination, for instance, simply of inconsistencies or delay in disclosure will not in and of itself be fit for purpose in a trafficking claim. There are particular features of the evidence of those who claim to be trafficked that need to be considered before factors such as inconsistency and delay in disclosure can alone be relied upon as determining credibility. The features of credibility which are addressed in the Guidance must be considered and examined before reaching an adverse credibility finding: see, for instance, R (SF) v SSHD  EWHC 2705 (Admin) at paragraph 184.
iii) 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. See R (M) v SSHD  EWHC 2467 at paragraph 48.
- Submissions were made by Ms Warren in relation to the appropriate standard of enquiry upon which the court should embark when considering trafficking claims. This is an issue which has been addressed in other authorities in recent times (see, for example, SF above and R(HAM) v SSHD  EWHC 1725 (Admin)). For the reasons which I set out below it has not been necessary in order to resolve this case to consider how finely tuned the court's enquiry needs to be bearing in mind the rights that are engaged by the defendant's decision. I have been able to reach a conclusion without the intensity of the enquiry making any difference to the outcome.
- Having analysed the decision of 6th December 2013 I have reached the conclusion that it is infected with errors of law and can no longer stand.
- Firstly, whilst the letter reaches adverse conclusions in relation to credibility, and does so on the basis of inconsistencies in the claimant's account and delays in disclosure of her account of being trafficked, conspicuous by its absence from the decision is any attempt to address the Guidance which I have set out above relating to how those aspects of an assessment of credibility must be considered before reaching an adverse credibility finding. This is an error in two respects. Firstly, there does not appear to have been any application of the Guidance in relation, for instance, to whether or not there are other factors in play which would have led to the inconsistencies or delay in disclosure and explain it without those features being an indicator of the claimant being an unreliable witness. Factors that are identified in the Guidance were clearly evident in the claimant's case. She was a person who had been subject to mental and emotional trauma and who experienced feelings of shame about the circumstances in which she found herself. Most tellingly in my view, it was accepted that she was suffering from post-traumatic stress disorder on the basis of the medical evidence, and yet there is no reflection in the decision letter of the Guidance in respect of the role which that diagnosis can play in cases of this kind in the assessment of credibility. Thus I accept submissions made by Ms Warren that the decision letter discloses a failure to apply the defendant's Guidance when reaching the adverse credibility findings in the case.
- Secondly, in that the decision letter fails to deal with factors which might mitigate the inconsistencies or delay in disclosure in the claimant's case in accordance with the Guidance, it also fails to provide any reasons to explain why those factors do not supplant the findings as to inconsistency and delay of disclosure on credibility, or the role they played in making the ultimate adverse credibility finding. Thus, in any event, even if (which I do not accept) the defendant applied her Guidance, the decision letter provides no reasoning to explain how the Guidance has been taken into account and applied in the claimant's case. As set out above, the Guidance creates the need for a careful explanation of reasons in cases of this kind if an adverse credibility finding is to be reached when the factors identified by the Guidance as being mitigating circumstances are involved. There is no such reasoning evidenced in the decision letter.
- On behalf of the defendant, Mr Karim submitted that the discrepancies in this case were so glaring and unaccountable that no other solution but an adverse credibility finding could be arrived at, leading to the conclusion that the claimant was in truth fleeing non state actors rather than being a victim of trafficking. That is a submission which I am unable to accept. In my view it illegitimately avoids, at the very least, providing the recipient of this decision with a proper understanding as to how the defendant's Guidance has been applied. There is no suggestion in the decision letter that the Guidance was not applicable in the present case. It would be difficult to understand how such a contention could in any event be defended. As set out above the Guidance required in this case that the factors to which it specifically alludes as mitigating circumstances be addressed before an adverse credibility finding could be reached. In those circumstances, as I have already concluded, in my view the decision has been reached without the application of the Guidance, and in any event without legally adequate reasoning explaining how the factors identified by the Guidance have been considered in reaching the defendant's conclusion.
- I further accept the submissions made on behalf of the claimant by Ms Warren that the conclusion in paragraph 44 of the decision is unsupportable. It is again further evidence that the Guidance has simply not been applied in reaching this decision. As set out above the Guidance makes clear that in effect once a reasonable grounds decision has been reached it is for the defendant to draw the matter to the attention of the Police and not the claimant. In those circumstances it is inconsistent with the application of the Guidance to hold against a claimant the fact that she has not reported the matter to the Police. This is a further legal defect in the decision on the basis of a failure to apply the defendant's Guidance in reaching a decision in the case.
- I also accept the criticism raised by Ms Warren in relation to paragraph 40 of the decision. The defendant had no reason to cast doubt on the claimant's credibility on the basis claimed, namely that she had only alleged to be a victim of trafficking after an adverse immigration decision, when the reality was that she had not claimed to be a victim of trafficking, but the fact that she might have been trafficked was identified by one of the defendant's officials. Whilst not as significant as the errors which I have identified above it is a further error in the form of taking into account an immaterial consideration, which underlines the flawed nature of the decision-making process in this case.
- In the light of these conclusions as to the illegality of the defendant's findings in respect of credibility it is clear that the decision of 6th December 2013 must be quashed. In those circumstances there is no need for conclusions to be formed about Ground 2. The circumstances the claimant's case will need to be reconsidered and findings made as to whether or not she is a victim of trafficking. The errors which I have identified in relation to Ground 1 suffice to dispose of the case.
- For all the reasons set out above the defendant's decision must be quashed.
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