|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> NM, R (On the Application Of) v The Secretary of State for the Home Department  EWHC 2798 (Admin) (12 December 2017)
Cite as:  EWHC 2798 (Admin)
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
IN THE ADMINISTRATIVE COURT
Leeds LS1 3BG
B e f o r e :
sitting as a Judge of the High Court
| The Queen, on the application of
- and –
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Miss N Barnes for the Defendant
Hearing date: 1 and 2 November 2017
Date draft circulated to the Parties: 8 November 2017
Date handed down 12 December 2017
Crown Copyright ©
His Honour Judge Saffman:
"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, 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."
a. An "action" – the person concerned must have been subject to an act of recruitment, transportation, transfer, harbouring or receipt – which is achieved by
b. A "means" – consisting of the threat 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 or benefits to achieve the consent of a person having control over another person – for the purpose of
c. "Exploitation" – sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, forced criminality or the removal of organs.
"Following the guidance to Competent Authorities the decision maker does not have to be certain that modern slavery (human trafficking or slavery, servitude or forced/compulsory labour) did occur, the correct test is that it is more likely than not to have taken place. Based on the information available, it is considered that you do not meet the 3 constituent elements of the trafficking definition or 2 constituent elements of slavery, servitude and forced/compulsory labour on the "balance of probabilities" and as such it is not accepted conclusively that you are a victim of modern slavery."
"All work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily."
It is common ground that in order for forced labour to be established the victim must be working under both "menace of penalty" and their services must not be voluntarily given.
"It has, therefore, been decided that you are not a victim of human trafficking within Malawi for the purpose of sexual exploitation or from Malawi to the UK for the purpose of domestic servitude. It has therefore been decided that you do not require a period of leave for any reason associated with being a victim of trafficking.
Similarly, it is not believed that you are a victim of slavery, servitude or forced/compulsory labour and do not, therefore, require any leave."
- evidence of control over movement
- passport or documents held by somebody else
- limited social contact
- limited contact with family
- does not know home or work address
- no or limited access to earnings or labour contract
- dependence on employer for a number of services for example work, transport and accommodation
And that she met one indicator of domestic servitude namely:
- Living with and working for a family in a private home
The Credibility Ground
"…… For the reasons set out below, it is considered that you are not a credible witness and therefore, no weight is attached to your evidence."
"You state that you worked for Anne-Marie from March to September 2014 but cannot provide her or Frank's surnames, the address of the property you lived at or any landmarks to identify the area by. You also state that you took Eve to the park twice a week by using the key on the windowsill of the house, you cannot provide any details that will help to identify this park beyond it having a children's play area. Your inability to provide any such details such as an address or local landmarks is inconsistent with your account of living at the property for 6 months and regularly taking the little girl to the local park. You state Anne-Marie is a nurse but you do not know the hospital she worked at."
"Consideration has been given to further submissions including information from City Hearts and West Yorkshire Police submitted in support of your claim. However, as set out below, it is not accepted that these provide mitigation in your case and therefore, due to the internal inconsistencies in your account, your credibility has been damaged to the extent that your claim to have been exploited cannot be believed.
You presented to West Yorkshire Police and having been spoken with were advised that as you could not provide surnames, the address or any details that would enable the house to be identified that was no actionable information that they could take forward. You state that Didi took you to the police station and dropped you off as she stated that she could not be there. You state that you could see her house from yours and although she may have been able to provide additional information to assist the police, as she left and you have not indicated having any ongoing contact there was insufficient information to enable the police to investigate your allegations further. As such there is no further information available which may have supported your account.
Your further submissions include a letter from the counseling service which you accessed from City Hearts and an update of your current circumstances after you finished these sessions. The counsellor's letter refers to your circumstances leading up to your arrival at City Hearts but is not more specific as to what the counsellor understands the circumstances to be. The letter also refers to the general uncertainty of your situation. Various symptoms are reported however again there is no specificity as to what these are attributed to. By your own account you have indicated being mistreated by clients in Malawi and being the victim of attempted assaults by Frank either of which are deemed to be potentially linked to the symptoms you reported to the counsellor. This information has been taken in good faith and provides no further support to your account of being trafficked as the information within it does not refer to any specific circumstances. The information provided gives no explanation for your lack of knowledge of the address or surname of the woman you state you lived with for 6 months.
In summary, based on the available evidence and their respective assessments above it is not accepted that you are a victim of modern slavery and your case is rejected in full below."
The Guidance for Competent Authorities
Competent Authorities are entitled to consider credibility as part of (my emphasis) their decision-making process.
The Competent Authority must consider both the external and internal credibility of the material facts.
*In assessing credibility the Competent Authority should assess the material facts of past and present events (material facts being those which are serious and significant in nature) and which may indicate that a person is a victim of human trafficking or modern slavery.
The Competent Authority should assess the material facts based on the following:
Are they coherent and consistent with any past written or verbal statements?
How well does the evidence submitted fit together and does not contradict itself?
Are they consistent with claims made by witnesses and with any documentary evidence submitted in support of the claim or gathered during the course of your investigations?
*Where there is insufficient evidence to support a claim that the individual is a victim of modern slavery (for example where the case is lacking key details, such as who exploited them or where the exploitation took place) staff at the Competent Authority are entitled to question (my emphasis) whether the Reasonable Grounds or Conclusive Grounds threshold is met. However, you must also consider whether you need more information.
*The level of detail with which a potential victim presents their claim is a factor (my emphasis) when the Competent Authority assesses credibility. It is reasonable to assume that a victim giving an account of their human trafficking or modern slavery experience will be more expressive and more likely to include sensory details (for example what they saw heard, felt or thought about the event than someone who has not had this experience.
Where there is insufficient evidence to support a claim that the individual is a victim of human trafficking or modern slavery the Competent Authority is entitled to question (my emphasis) whether the Reasonable Grounds or Conclusive Grounds threshold is met. However, they must also consider whether they need more information.
*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 or current events may lead the Competent Authority to disbelieve their claim. However, before the Competent Authority come to a negative conclusion, they must first refer back to the first responder or other experts witnesses to clarify any inconsistencies in the claim.
Due to the trauma of human trafficking or modern slavery, there may be valid reasons why a potential victim's account is inconsistent or lacks sufficient detail."
Competent Authority staff need to know about the mitigating circumstances which can affect whether a potential victim's account of human trafficking or modern slavery is credible. When the Competent Authority assesses the credibility of the claim, there may be mitigating reasons why a potential victim of human trafficking or modern slavery is incoherent, inconsistent or delays giving details of material facts. The Competent Authority 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 (including those of a sexual nature)
Discussion concerning credibility ground
The claimant's submissions
a. The defendant failed to adhere to the Guidance
b. The defendant failed to take into account all factors that were in the claimant's favour
c. The defendant took immaterial factors into account
d. The defendant has concluded that it is inappropriate to attach any weight to the claimant's evidence
e. The defendant has conflated plausibility with credibility and concluded that because she considers the claimant's evidence to be implausible it is therefore incredible.
Failing to adhere to Guidance
"The guidance demands a high standard of reasoning from the Competent Authority and rightly demands that if a decision is to turn on lack of credibility, the Competent Authority must carefully analyse the relevant factors and explain her reasoning about credibility in her decision. It is unfair and unlawful for the Competent Authority to shy away from grappling with the issue of credibility".
Failing to take into account all factors that were in the claimant's favour.
"The counsellor's letter refers to your circumstances leading up to your arrival at City Hearts but is not more specific as to what the counsellor understands the circumstances to be. The letter also refers to the general uncertainty of your situation. Various symptoms reported however again there is no specificity as to what these are attributed to. By your own account you have indicated being mistreated by client Malawi and being the victim of attempted assaults by Frank either of which are deemed to be potentially linked to the symptoms you reported to the counsellor"
Taking account of immaterial facts
"(The claimant) was only arrested on suspicion of entering the country illegally and was dealt with entirely by immigration. There does not appear to have been any further investigations carried out. In her initial disclosure to myself she was only able to give first names; she did not provide surnames or addresses."
"You presented to West Yorkshire police and having been spoken with were advised that as you could not provide surnames, the address or any details that would enable the house to be identified there was no actionable information that they could take forward."
Failure to attach any weight to the claimant's evidence
Conflating credibility with plausibility.
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, it can be a dangerous, even a wholly inappropriate, factor to rely on in some asylum cases. Much of the evidence will be preferable 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......
30 inherent improbability in the context of asylum cases was discussed at some length by Lord Brodie in Awala v Secretary of State (2005) 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. An applicant's account is not credible is to stay is a conclusion". 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 factfinder 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".
"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……….. It is therefore important that (the decision-maker) should seek to view an appellant's account of events in the context of conditions in the country from which the appellant comes."
The defendant's submissions
- Frank's surname
- the hospital where Anne-Marie worked
- any details to identify the park where the claimant took Eve
- any local landmarks to identify the area
Conclusion as to credibility ground
The Definitional Issue
The claimant's submissions
Menace of a penalty
"The circumstances you describe with Anne-Marie are deemed to be dissimilar to those set out above as you were not mistreated beyond not receiving the expected payments. By your own account the reason that you left was Frank's behaviour, not your dissatisfaction with Anne-Marie who you stated treated you alright".
"The court would recall that Mr Van Der Mussele had voluntarily entered the profession of advocate with knowledge of the practice complained of. This being so a considerable and unreasonable imbalance between the aim pursued – to qualify as an advocate – and the obligations undertaken in order to achieve that aim would alone be capable of warranting the conclusion that the services exacted of Mr Van Der Mussele in relation to legal aid were compulsory despite his consent."
"It is obvious that ordinarily no-one would willingly supply labour or service for another for less than the minimum wage, when he knows that under the law he is entitled to get a minimum wage for the labour or service provided by him. It may therefore be legitimately presumed that when a person provides labour or services against receipt of remuneration which is less than the minimum wage, he is acting under the force of some compulsion which drives him to work though he is paid less than what he is entitled under the law to receive …… It may be physical force which compels a person to provide labour or services to another or it may even be compulsion arising from hunger or poverty or want of destitution. Any factor which deprives a person of a choice of alternatives and compels him to adopt a particular course may properly be regarded as 'force' and if Labour or service is compelled as result of such force it would be forced labour" 
The defendant's submissions
"For forced labour within the home, see the domestic servitude section"
The reader is then referred to page 36 of the Guidance which has been quoted verbatim in the Decision.
"there is a blurred line between the point at which a situation transgresses from labour exploitation to forced labour".
"substandard working conditions are not forced labour per se, neither is the lack of viable economic alternatives that make people stay in such situations (unless those are actively abused to induce and control the victim."
- Free to come and go. She was not permanently locked into the house, she knew where the key was to open the door.
- She appeared to have some control over what she did during the day with Eve.
- Anne-Marie appears to have bought some items for the claimant when requested.
"Where it is alleged that one person has been compulsorily employed by another, the level of pay he or she has received, if any, may have evidential importance. It may point to coercion; it may bear on an employee's ability to escape from his or her employers control. On its own, however, a derisory level of wages is not tantamount to coercion."
Conclusion as to definitional ground
I am grateful to counsel for their very able assistance in this matter.
HH Judge Saffman
Note 1 signed by the UK government on 23 March 2007, ratified on 17 December 2008 and which came into force on 1 April 2009. [Back] Note 2 by which I mean the Council of Europe Convention on Action against Trafficking in Human Beings. [Back] Note 3 she claimed asylum on that date. [Back] Note 4 it is right to say however that there is another email in the court bundle emanating from City Hearts and which appears to be dated 12 September 2016 and which is at bundle B 73 of the hearing bundle in which City Hearts indicate that the claimant was given counseling "due to her trafficking experience”. [Back] Note 5 a phrase referred to in the Guidance [Back] Note 6 See paragraph 38 above. [Back] Note 7 People's Union for Democratic Rights v Union of India and others. A decision of the Indian Supreme Court reported at 1983 1 SCR 456. [Back] Note 8 the evidence being that Anne-Marie held the claimant's passport. [Back]
Note 1 signed by the UK government on 23 March 2007, ratified on 17 December 2008 and which came into force on 1 April 2009. [Back]
Note 2 by which I mean the Council of Europe Convention on Action against Trafficking in Human Beings. [Back]
Note 3 she claimed asylum on that date. [Back]
Note 4 it is right to say however that there is another email in the court bundle emanating from City Hearts and which appears to be dated 12 September 2016 and which is at bundle B 73 of the hearing bundle in which City Hearts indicate that the claimant was given counseling "due to her trafficking experience”. [Back]
Note 5 a phrase referred to in the Guidance [Back]
Note 6 See paragraph 38 above. [Back]
Note 7 People's Union for Democratic Rights v Union of India and others. A decision of the Indian Supreme Court reported at 1983 1 SCR 456. [Back]
Note 8 the evidence being that Anne-Marie held the claimant's passport. [Back]