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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> FK, R (on the application of) v Secretary of State for the Home Department [2016] EWHC 56 (Admin) (18 January 2016) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2016/56.html Cite as: [2016] EWHC 56 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN MANCHESTER
IN THE MATTER OF AN
APPLICATION
FOR
JUDICIAL
REVIEW
1 Bridge Street West, Manchester, M60 9DJ. |
||
B e f o
r
e :
____________________
THE QUEEN (on the application of) FK | Claimant |
|
| - and - |
||
SECRETARY OF STATE FOR THE HOME DEPARTMENT | Defendant |
____________________
Sam Karim (instructed by Government Legal
Department)
for the Defendant
Hearing dates: 3rd December 2015
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
MR JUSTICE DOVE :
Introduction
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 3
rd
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.
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 Facts
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.
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.
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.
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.
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 ofviolence
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 highlyvulnerable
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 originalstatement
![]()
regarding
this period of time. [The claimant] did not
realise
the
relevance
of this information and felt shame about sharing some of the details."
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)".
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 andviolence.
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."
"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."
victim
of human trafficking.
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 avictim
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 conditionsstated
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 LandRegistry
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. Atvarious
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 Policereport
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 nonstate
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 experiencedrape,
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 thereasons
![]()
stated
above your client's account of her experiences is inconsistent with indicators of trafficking.
48. Furthermore, the Judge's sentencingremarks
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 asstated
by Ms Bundock in her
report.
50. The Act – the person has been subject to the act ofrecruitment/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 thereasons
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 ofvulnerability/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 andvulnerability
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 herreport
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 notrecruited
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 avictim
of human trafficking. Consequently, it is not considered that your client
requires
the assistance of protection the Convention affords."
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
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 therecruitment,
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."
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.
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.
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 andviolated.
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."
"Domestic servitude (thestate
or condition of a slave) often involves people working in a household where they are:
- ill treated
- humiliated
- 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 oftenvery
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."
relation
to sharing information with the Police. In that connection the Guidance provides as follows:
"A potentialvictim
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:
- Your local Police force…
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."
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:
"Consistency
It is alsoreasonable
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 bevalid
![]()
reasons
why a potential
victim's
account is inconsistent or lacks sufficient detail.
For information, seerelated
link: Credibility – mitigating circumstances."
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 potentialvictim's
account of trafficking is credible.
When you assess the credibility of a claim, there may be mitigatingreasons
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…
Delayed disclosure
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 notview
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."
The Grounds
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.
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.
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.
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.
The Law
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 inrelation
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 [2011] UKSC 12; [2012] 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 [2015] 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 [2015] EWHC 2467 at paragraph 48.
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 [2015] 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.
Conclusions
reached
the conclusion that it is infected with errors of law and can no longer stand.
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.
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.
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.
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.
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.
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.
reasons set out above the defendant's decision must be quashed.