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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 [2017] EWHC 2798 (Admin) (12 December 2017) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2017/2798.html Cite as: [2017] EWHC 2798 (Admin) |
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QUEEN'S BENCH DIVISION
IN THE ADMINISTRATIVE COURT
Oxford RowLeeds LS1 3BG |
||
B e f o
r
e :
sitting as a Judge of the High Court
____________________
The Queen, on the application of NM | Claimant |
|
- and |
||
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
____________________
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
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
His Honour Judge Saffman:
Introduction
NM,
a national of Malawi, challenges a decision made on 29 September 2016 by which the defendant, the
Secretary
of
State
for the
Home
Department
acting in her capacity as the Competent Authority,
rejected
her claim that the claimant was a
victim
of human trafficking (the Decision). By her claim form, the claimant seeks, amongst other things, an order quashing the Decision and a mandatory order
requiring
the defendant to
reconsider
the Decision.
"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, 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."
rise
to 3 interlocking components all of which need to be present before human trafficking of an individual is established. These are:
a. An "action" the person concerned must have been subject to an act ofrecruitment,
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 ofvulnerability,
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 theremoval
of organs.
victim
of modern slavery (human trafficking or slavery, servitude or forced/compulsory labour)."
stated:
"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 avictim
of modern slavery."
refers
actually are.
Rights.
Article 4 ECHR provides that no one shall be held in slavery or servitude and no one shall be
required
to perform forced or compulsory labour. The claimant does not argue that she was held in slavery or servitude but she does contend that she was a
victim
of compulsory (or forced) labour.
right
that there are 2 constituent elements of forced/compulsory labour. The International Labour Organisation Forced Labour Convention (Convention 29) 1930 defines forced or compulsory labour as:
"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 himselfvoluntarily."
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.
Referring
back to paragraph 6 above, the claimant contends that insofar as the Decision concludes that, even on her account, either or both of these 2 elements are not met then the Decision is irrational and/or otherwise unlawful.
remembered
that the definition of "exploitation" for the purpose of the Convention[2] includes a situation where the person concerned is a
victim
of forced labour. If the exploitation has taken that form and there has also been "an action" and "a means" as I have set out above, then the
victim
meets the criteria for being a
victim
of trafficking.
recorded
at the end of the Consideration Minute the defendant
stated:
"It has, therefore, been decided that you are not avictim
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 avictim
of slavery, servitude or forced/compulsory labour and do not, therefore,
require
any leave."
review
is the final conclusive decision of the defendant. Article 10 of the Convention provides for the Competent Authority to identify
victims
of human trafficking by a two-stage process. At the initial stage the Competent Authority must consider whether there are
reasonable
grounds to believe that a person has been the
victim
of trafficking. The second stage involves a more in-depth analysis of the
application
in order to establish whether, on balance, the evidence indicates that the
applicant
has actually been a
victim
of trafficking.
victim
of trafficking on the balance of probabilities for the purpose of the second, conclusive stage.
Review
Claim Form issued on 23 December 2016 the claimant challenged the Decision on the basis that it was irrational or otherwise unlawful on 3 grounds. The first was that the decision lacked anxious scrutiny, the second was that there had been a flawed approach to issues of the credibility of the claimant and the third ground alleged a breach of Article 4 ECHR.
refused
it on the first and third ground. The substantive matter upon which permission had been given came before me on 29 June 2017. I gave permission for the claimant to amend the claim to include the contention that the Decision was also irrational or otherwise unlawful in that it was based upon a conclusion that the claimant's circumstances, even on her own account, did not meet the criteria necessary to establish human trafficking. At the same hearing on 29 June 2017 I gave the claimant permission to pursue that ground at the substantive hearing. This new ground has been
referred
to during the course of this substantive hearing as the "Definitional Ground".
represented
by Miss Lucy Mair of counsel and the defendant by Miss Natasha Barnes of counsel. I am grateful to both for their
very
helpful and skillful skeleton arguments and oral submissions.
The Background
victim
of human trafficking.
result
she became impoverished. She was forced to turn to prostitution for the purpose of supporting herself and her child and to bring food into her mother's household with whom she had become obliged to
reside
when she became a penniless widow with a dependent child.
very
young child for which she would
receive
£300 per month after the first 3 months. She would
receive
nothing in the first 3 months to defray the cost of her travel to the UK.
route
involving flight stopovers in Kenya, France, Eire and Northern Ireland before finally ending up in London. She was accompanied on this journey by Caro. They were met at the airport in London by a British woman, Anne-Marie to whom Caro gave the claimant's passport. Anne-Marie transported the claimant to her house in Leeds. There she was introduced to Anne-Marie's infant daughter, Eve. She
remained
with Anne-Marie until 22 September 2014 when she presented herself at a local police station in circumstances to which I shall come shortly.
home
of Anne-Marie she was
required
to get up at 6am to look after Eve as well as to undertake all the house cleaning, washing, cooking and ironing. Her daily duties did not stop until Eve had been put to bed and even then, she was on call if Eve needed comforting and so her working hours exceeded 12 per day. She had one day off per week but then too she was on call in the event that Eve needed attention. She
received
no money, not even after the three-month period during which she had expected no pay. Occasionally Anne-Marie bought necessities for her including a coat and she provided her with necessary toiletries but she
received
no cash. She was not minded to ask for payment. In the "case summary" section of the Decision it is
recorded
that the claimant did not ask for her wages because she was scared that she may be asked to leave. Furthermore, in Malawian culture it is "
rude"
to ask for one's wages. She thought perhaps that Anne-Marie could not afford to pay her but that ultimately, she would pay her when her finances allowed.
very
close to the house. Eventually, in about August 2014, in the course of her
visits
to the park, she met another woman, Didi, who lived close by and with whom the claimant then built up a passing acquaintance.
relax".
It is
right
to add that she had no money with which to fund any excursions on her day off or indeed at any other time.
raping
her. She
resolved
to leave the house before that happened and on 22 September she made her way to Didi's
home
in the hope that she could give her sanctuary.
refuge.
When that could not be found Didi dropped her off at Killingbeck Police Station. Didi did not accompany the claimant into the police station, she merely dropped her there.
victim
of trafficking and as
result
the National
Referral
Mechanism for Potential Adult
Victims
of Trafficking (NRM) was invoked and the appropriate
referral
was made. A
referral
is made on a pro forma which, amongst other things, draws attention to 20 general indicators of trafficking. PC Simon Green who completed the NRM form, noted that there was evidence that the claimant met 5 of the 20 indicators namely:
- 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
![]()
reason
of her
referral
under the NRM that it became incumbent upon the defendant to embark upon the two-stage process
referred
to above to determine whether, on balance, the claimant was indeed a
victim
of trafficking.
statement
and on 1 December 2014 she had an asylum interview. In the course of the hearing before me
reference
was made to her witness
statement
and her asylum interview but the Decision makes it clear that it was
reached
having assessed all 3 documents together with further submissions dated 24 November 2014, 4 December 2014 and 26 February 2016, email correspondence dated 12 September 2016 with the police officer to whom the claimant
reported
at Killingbeck police station (PC Green) and email correspondence from City Hearts, a charity providing safe houses, support and counseling for
vulnerable
and exploited people.
referral
form contains observations by PC Green to the effect that "numerous attempts were made for her to name landmarks, shops, streets et cetera" but that the claimant "did not know her address or anything nearby besides the park."
right
that the police did not undertake any further investigation
relating
to the possibility of the commission of the crime of human trafficking. The email of 12 September 2016 I
refer
above sent by PC Green makes that clear. It does not suggest however that the decision not to make any further enquiries was based upon the
view
that no crime had been committed but
rather
the email gives the impression that the police simply felt that, in the absence of a surname or any
real
means of establishing who the trafficker was, they could
really
take it no further.
road
and nearby there was a park where she would sometimes take Eve she was unable to further elucidate. Nor was she able to put a name to the park or give any information which might enable Anne-Marie's
home
to be identified. Similarly, she was unable to provide details of Anne-Marie's or Frank's surname.
reply
was "I was not interested in other things. Most of the time she (Anne-Marie) was around so I just find it convenient (not) to take any of her letters."
home,
she was also unable to provide any help in locating Anne-Marie by her surname or indeed
via
her place of work. All she apparently knew was that Anne-Marie worked in a hospital some 2 to 5 miles from the house.
The Credibility Ground
states
as follows:
" For thereasons
set out below, it is considered that you are not a credible witness and therefore, no weight is attached to your evidence."
right
to say that the
reasons
"set out below" are not set out in one specific part of the Decision letter but appear to be set out over 2 parts. One part immediately after the citation of extracts from the Guidance to Competent Authorities (to which I shall come below) and the other part under the section
referring
to "mitigating circumstances".
states
as follows:
"Youstate
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."
referencing
"mitigating circumstances" the Decision
states
as follows:
"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. Youstate
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 letterrefers
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 theirrespective
assessments above it is not accepted that you are a
victim
of modern slavery and your case is
rejected
in full below."
referred
to above is dated February 2016. It is not actually
referred
to in the list of information which the defendant considered in connection with this
application
but clearly it was one of the documents that was considered. It simply confirms that the
relevant
counsellor has been working with the claimant since December 2014. The claimant has had 23 sessions aimed at providing some therapy for the claimant's fragile mental
state
and it confirms that there are significant indicators pointing to her suffering from trauma symptoms. It is
right
to say that it does not shed any light on what has caused the trauma -
related
condition from which the claimant suffered. The Decision points out that any traumatic stress could equally be as a
result
of the horrendous situation in which she found herself in Malawi or the unwanted sexual attention from Frank
rather
than it being evidence of her having been trafficked.[4]
The Guidance for Competent Authorities
refer
above is a document published on 21 March 2016 under the title "
Victims
of Modern Slavery Competent Authority Guidance" (the Guidance). It is a
very
lengthy document
running
to 129 pages but it has specific sections commencing on page 97 on "How to assess credibility when making a
Reasonable
Grounds or Conclusive Grounds decision.".
departs
from that guidance. See Lumba
v
Secretary
of
State
for the
Home
Department
[2011] UKSC 12; [2012] 1 AC 245.
reproduced
in the Decision letter.
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 avictim
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 orverbal
![]()
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 avictim
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 potentialvictim
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 avictim
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 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 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 bevalid
![]()
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 potentialvictim'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
record
that it is accepted that the onus is on the claimant to establish that, on the balance of probabilities, she is the
victim
of trafficking but Miss Mair emphasises that the process is an inquisitorial one, as is necessary to ensure that the claimant's human
rights
are guarded in the process. This is why the guidance indicates that, when necessary, further information must be obtained.
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
view
appears to have been taken on the basis that, albeit she lived at Anne-Marie's for 6 months or so, she has been unable to provide details, such as the surname of Anne-Marie and/or Frank or any details that could assist in determining the location of Anne-Marie's
home.
The point made by Miss Barnes is that essentially the claimant has not provided any details which would enable her account to be corroborated and that failure wholly undermines her credibility.
departed
from the Guidance in a number of
respects.
First, and by
reference
to the extracts from the Guidance cited above, credibility is merely part of the decision-making process, it is not the entirety of the process. Secondly, insufficient evidence entitles the competent authority to question whether the Conclusive Grounds threshold has been met, it does not say that insufficient evidence entitles the competent authority to
reject
the claim on the basis that the threshold has not been met. The point is emphasised yet further in the Guidance by the observation that the level of detail with which a potential
victim
presents their case is a factor in the assessment of credibility. It is not determinative.
departure
from the Guidance.
refers
me
R
ota Mutesi
v
SSHD (2015) EWHC 2467 (Admin) where the court held that:
"The guidance demands a high standard ofreasoning
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".
view
that that was not inconsistent with her having been trafficked. The same
result
pertained in Hounga
v
Allen ...2014) UKSC 47. Although in these cases it is
right
to point out that the alleged
victims
were children.
Failing to take into account all factors that were in the claimant's favour.
reached
in the US
State
Department
Trafficking in Persons
Report
2016 to the effect that that both Malawi and the UK are countries where the subjection of women to slavery and exploitation is prevalent. That objective evidence, it is argued, does not appear to have been factored into the defendant's consideration of the claimant's claim at all.
home.
She explained why it was that she knew that she was accommodated in Leeds but not where in Leeds (because the city name was mentioned and she was
vaguely
familiar with the name through the exploits of Leeds United).
view
that the claimant has failed to provide "key details"[5]. She accepts that a surname and address could be "key details" but argues that the details that the claimant gave were also "key details". In any event, for the purpose of an NRM
referral,
a lack of knowledge as to where one has been accommodated is actually an indicator of trafficking.
reference
to the detail which has been supplied but
rather
it focuses exclusively on the failure to supply a surname or an address.
recognition
has been given to the fact that the claimant's account has been internally consistent throughout. Indeed, it is pointed out by Miss Mair that the Decision makes clear that it is "internal inconsistencies" which have damaged the claimant's credibility "to the extent that your claim to have been exploited cannot be believed". Miss Mair points out that there
really
are no significant internal inconsistencies and that to base a decision as to credibility on internal inconsistencies which do not actually exist is irrational.
state
in which they found themselves. Miss Mair argues that the claimant's failure to do so adds to her credibility.
value
of additional evidence. The evidence from City Hearts has been dismissed on the basis that it fails to specify why it was that the claimant attended on City Hearts. The Decision
states:
"The counsellor's letterrefers
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"
regard
has been had to the email of 12 September 2016 to be found at B73 of the bundle which, as I understand it, emanates from City Hearts which specifically
states
that the claimant was given counseling "due to her trafficking experience".
regard
appears to have been had to the fact that the claimant presented herself to a police station, albeit that she was taken there by her friend. The defendant appears to have attached no
regard
to the fact that she was an illegal immigrant and the fact that presenting to a police station in the circumstances is not what might be expected unless the illegal immigrant was concerned about matters even more pressing than their illegal presence in the UK. In fact, at the police station the claimant was arrested on suspicion of entering the country illegally.
Taking account of immaterial facts
reference
to the email from West Yorkshire police to which I have
referred
above. That email
stated:
"(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."
states
that thus:
"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."
states
that "there are trafficking issues involved".
Failure to attach any weight to the claimant's evidence
relation
to this aspect of her claim if the defendant had contended that such weight as could be attached to the claimant's evidence as supporting a finding that she had been trafficked was outweighed by evidence going in the other direction. That however has not been the approach that the defendant appears to have taken. It has simply dismissed the claimant's evidence in its entirety as being unreliable.
reaching
her decision the defendant has cherry picked. She has accepted the claimant's evidence where it suited her to do so and where she believed that it supported the conclusion that the claimant had not been trafficked. Thus, the defendant appears to accept that the claimant may have needed counseling from City Hearts because of the deplorable situation she found herself in in Malawi or because she was subject to Frank's sexual harassment. Indeed the Decision specifically
states
that "this information (about events in Malawi and Frank's conduct) has been taken in good faith and provides no support to your account of being trafficked
..". It is irrational, argues Miss Mair, for the defendant to accept what the claimant says for the purpose of dismissing the input of City Hearts while at the same time saying that no weight is attached to her evidence.
Conflating credibility with plausibility.
view
as to what knowledge a young woman such as the claimant would have of her trafficker.
regard
to the special need for caution when assessing credibility or improbability in cases such as this. At paragraph 14 of the Amended Detailed
Statement
of Facts and Grounds Miss Mair makes
reference
to HK
v
SSHD (2006 EWCA 1037 paragraphs 28 to 30. That case was an asylum case but of course the principles set out in it would apply equally in a case
relating
to trafficking.
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 andreliable
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 torely
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 Awalav
![]()
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".
v
SSHD (2006) EWCA 1223 at 25 Keene LJ pointed out that the approach of a decision maker to issues of credibility included the fundamental one that:
"He should be cautious before finding an account to be inherently incredible, because there is a considerablerisk
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."
reason
as to be incapable of belief".
view
that the absence of details as to surname and address makes this account "so far-fetched and contrary to
reason
as to be incapable of belief". As to the conflation, she argues that it is clear that the defendant has taken the
view
that it is inherently improbable that the claimant would not know Anne-Marie's address or Anne-Marie's surname and has thus considered that her account is implausible and that, as a
result,
the credibility of the claimant is totally undermined. That, she argues, is contrary to the principles enunciated in the cases
referred
to above.
referred
to above, that there has been no careful analysis of the
relevant
factors by the defendant or an explanation by the defendant in the Decision of her
reasoning
about credibility. Much less has there been the high level of
reasoning
that ought to be
required
where the evidence of the person concerned is simply
rejected
out of hand.
regard
to mitigating circumstances. Miss Mair argues that this is an unprincipled approach. It
results
in there being a finding of a lack of credibility and then a further consideration of mitigating features and whether those provide a
reason
to
row
back from the finding of no credibility. She argues that that is not an approach with which the courts should concur.
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
rational
and
reasonable
for the defendant as the Competent Authority to conclude that, in the absence of all this crucial information and on the basis that that information was the only means by which the evidence of the claimant could be corroborated, the claimant's evidence could not be accepted. This is particularly so because there had been no good explanation for the failure to provide this
vital
information.
rise
to justifiable doubts as to the
veracity
of the claimant's assertions. It is of course accepted by Miss Mair that absence of detail can give
rise
to an entitlement to question assertions but not an entitlement to dismiss them out of hand. Indeed, Miss Mair points out that the Guidance does specifically provide for inconsistency being a basis for disbelieving the claim. That, she argues, is to be distinguished from how the Guidance directs the approach to a lack of detail. The latter simply gives
rise
to an entitlement to "question" whether grounds have been made out.
regard
is that she merely went to the park which was opposite the
home
with Eve. She did not leave the house on other occasions. As a
result,
she had no opportunity to take note of street names or landmarks. Miss Barnes argues that it is not irrational for the defendant to take the
view
that that explanation has the
ring
of inauthenticity. If nothing else, it would not explain why the claimant is unable even to
remember
the house number which presumably she would have seen on each occasion she
re-entered
the house from the park. Miss Barnes accepts that occasionally trauma can cause a
victim
of trafficking to be unable to
recount
salient details but that ought not to be the position here. This was a claimant who was not a child who, even on her own account, was not ill treated physically and was free to come and go. It is
reasonable
for the defendant to conclude in the circumstances that it is not trauma which is the cause of the claimant's failure to supply the details which the defendant can
reasonably
expect.
view
to establishing whether they give cause to
reconsider
the original conclusion, Miss Barnes' position is that the approach taken by the defendant accords with the Guidance which specifically
states
that mitigating circumstances, which can affect whether a potential
victim's
account of human trafficking is credible, are to be considered as a separate issue. Miss Barnes' position is that it is clear that the question of the claimant's credibility has been considered in the
round.
referral
into the NRM, Miss Barnes makes the point that that form is simply a gateway into the question of whether trafficking has been established. Thereafter, and for the purpose of the
reasonable
grounds and the conclusive grounds decisions, different considerations are in play.
refers
to internal consistency as having damaged the claimant's credibility[6], Miss Barnes argues that that misconstrues what the defendant actually had in mind by her
reference
to internal inconsistencies and that what was in mind in using that phrase in the Decision was the fact that the "inability to provide details such as an address or local landmarks was inconsistent with the claimant's account of living at the property for 6 months and
regularly
taking the little girl to the local park".
reasons
for
reaching
the conclusion she did then her findings would have been the same. She
refers
me to s31(2A) Senior Courts Act 1981 to the effect that the grant of
relief
must be
refused
"if it appears to the court to be highly likely that the outcome for the
applicant
would not have been substantially different if the conduct complained of had not occurred".
Conclusion as to credibility ground
respect
the Decision is irrational or otherwise unlawful.
reject
the account and thereby give the claimant's evidence no weight at all. It seems to me that that cannot be
right
and the defendant's contention that it completely strips the claimant's evidence of any credibility goes too far. In effect, on the basis of Y
v
SSHD, to which I
refer
above, that conclusion would only be available to the defendant "if the account of events is so far-fetched and contrary to
reason
as to be incapable of belief". I do not accept that that is so.
view
and even if she were entitled to hold it, it is in my
view
incumbent upon her to set out in detail and with a high standard of
reasoning
how and why she arrives at her decision that the claimant has no credibility. In so far as she does so simply by pointing out that there has been a failure to provide the details necessary to identify Anne-Marie or where she lives, then in my
view
that is not enough. The letter does not demonstrate the high standard of
reasoning
or the careful analysis that Mutesi stipulates is necessary. It does not make any
reference
to other issues that affect credibility many of which I have
referred
to above from paragraphs 52 to 61.
refer
in footnote 4 above was to the effect that counseling had been given to the claimant "due to her trafficking experience". The decision insofar as it addresses the letter from City Hearts and concludes that there is no specificity about it is actually simply wrong when considered alongside this email.
various
points in the decision the defendant indicates that she has
reached
a decision because of "internal inconsistencies" in the claimant's account. The difficulty is that there are no
real
inconsistencies in her account. Miss Barnes sought to explain the
reference
to inconsistencies by
reference
to the earlier paragraph in the Decision in which the context of the use of the word is that the claimant's inability to provide details such as an address for local landmarks is "inconsistent" with having lived at the property for 6 months and taking Eve to the park. It has to be said that whilst that is a possible explanation, it is not the one that immediately springs to mind when
reading
the Decision. That could just as easily be an ex post facto
rationalisation
by Miss Barnes as to why the defendant has concluded that "internal inconsistencies" damage the claimant's credibility. If that was actually in the mind of the defendant when she cited "internal inconsistencies" as being such a damaging factor to the claimant's credibility then it is an unfortunate choice of words bearing in mind that there are hardly any material internal inconsistencies in the claimant's account.
regards
the s31(2A) 1981 Act point, it may be that even the strict adherence to the Guidance and the particular circumstances of this case may cause the Competent Authority to conclude that the claimant has failed to establish on balance that she is the
victim
of trafficking but I am not satisfied that that is sufficiently likely to engage the s31 defence which
requires
it to be "highly likely" that the outcome would have been the same.
The Definitional Issue
victim
of human trafficking. If that was so then this judicial
review
would fall to be dismissed on the basis that the finding that it was irrational to attach no credence to the claimant's evidence is academic on the basis that, even if it had been accepted in full, the claimant could not succeed.
victim
of modern slavery. The claimant does not assert that she is the
victim
of slavery which is defined as "the status or condition of a person over whom any or all of the powers attaching to the
rights
of ownership are exercised". She asserts that she has been the
victim
of Modern Slavery in the sense that Modern Slavery includes trafficking, slavery, servitude or forced/compulsory labour. Her position is that she has been trafficked, the exploitative element of which, in her case, is the necessity for her to undertake forced/compulsory labour.
victim
can find him or herself is slavery, the next worst is servitude and the least worst is forced/compulsory labour. I have set out in paragraph 8 above the definition of forced/compulsory labour.
The claimant's submissions
recognising
that there is a hierarchy, the Decision appears to focus on whether the claimant has met the criteria to establish that she is a
victim
of domestic servitude
rather
than the less demanding, third tier in the hierarchy namely compulsory/forced labour. Servitude, domestic or otherwise, is an aggravated form of forced/ compulsory labour. The feature that distinguishes servitude in any of its forms from forced/ compulsory labour is that a
victim
in servitude is likely to feel that their condition is permanent. That element of perceived permanence is not a necessary constituent of forced labour.
relevant
consideration of forced labour in the context of the claimant's position.
rather
than simply the lower test of being a
victim
of compulsory or forced labour.
vulnerable
person.
Vulnerability
is obviously an important consideration. It will be
recalled
that the second of the 3 interlocking components of trafficking is the "means" component which consists of the threat or use of force or other forms of coercion by, amongst other things, abuse of a position of
vulnerability.
Miss Mair's position is that the claimant stayed with Anne-Marie even though she was not paid and was working extremely long hours because she had nowhere else to go. She was an illegal immigrant who
ran
the
risk
of being deported if the authorities discovered her. If she was deported back to Malawi then her position there could be considerably worse even than it had been before because her abandonment of Anne-Marie may have caused embarrassment to her traffickers which may have had
ramifications
for the claimant and would have been yet an added, hideous dimension to the claimant's life in Malawi. Miss Mair argues that the false dichotomy which the defendant has drawn between events in Malawi and the UK has caused the defendant to conclude that the "means" component for trafficking has not been met in the UK because all that the claimant has established is that she was deceived into expecting to be paid after 3 months and this did not happen. Miss Mair argues that that completely ignores the claimant's position of
vulnerability
which would be clear had there been a consideration of matters in the
round.
right
direction. In her answers to question 143 of the asylum interview she makes clear that she
remained
with Anne-Marie because she had shelter and a
roof
over her head and had food without having to
resort
to selling her body. In addition, in her witness
statement
at paragraph 17 she specifically says that she was scared that she would be asked to leave if she asked for money.
vulnerability
and that accordingly the "means" component of the definition had been met and the only
real
question would then be whether the claimant had been exploited by being forced into labour.
relation
to ground 2 most of the argument centred. The issue was whether it was irrational or otherwise unlawful for the defendant to conclude that even on the claimant's evidence she had not been the subject of forced labour. Miss Mair's position is that there does not appear to have been a consideration of the claimant's specific position at all in the context of forced labour but that in any event, if the claimant's evidence were accepted it would have been irrational to conclude that her work had been extracted from her other than under the menace of a penalty or that she had offered her services
voluntarily.
voluntarily
at all. It is
right
to say that the Decision does
refer
to these concepts in the sense that the Decision letter defines what forced or compulsory labour is by
reference
to the Forced Labour Convention but there does not appear, on the face of the decision, to be a specific
application
of those concepts to the claimant's case.
Menace of a penalty
Van
Der Mussele
v
Belgium (
application
number 8919/80 23 November 1983) the ECtHR had to consider what was meant by menace of any penalty. In that case the court held that a Belgian trainee lawyer who alleged that he had been subjected to forced labour by having to provide pro bono
representation
to a client during his pupillage may be able to establish menace of a penalty on the basis that his
refusal
to provide pro bono
representation
may
result
in his name being struck off the
roll
of pupils and thus prevent his ultimate
registration
as an advocate. The court held that "these prospects are sufficiently daunting to be capable of constituting the menace of a penalty".
violence
or
restraint.
It can assume a more subtle mantle, usually of a psychological nature, embracing conduct such as threats to denounce a
victim
to the police or immigration authorities".
refers
me to the
views
of commentators in particular Ms Drew and her text "Human Trafficking Human
Rights
Law and Practice" in which she is clear that menace of any penalty has to be construed broadly, to include the exploitation of
vulnerability.
states
as follows:
"The circumstances you describe with Anne-Marie are deemed to be dissimilar to those set out above as you were not mistreated beyond notreceiving
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".
victim
of trafficking because she was not mistreated beyond not
receiving
her expected payments, then it is wrong in law because mistreatment is not necessarily a precondition for the establishment of menace of a penalty.
reached
by the defendant that the claimant had not established that her labour was involuntary was irrational. It appears that that was the defendant's finding on the basis that the summary at the
very
end of the Decision letter argues that the claimant has not established either of the 2 constituent elements of slavery, servitude and forced/compulsory labour. It will be
recalled
that in paragraphs 6 to 11 above I address my concerns about exactly what the defendant is saying here. On the assumption that I am
right
that, in addition to concluding that she has not established menace of penalty, the defendant also does not accept that the claimant's labour was involuntary then I deal with that principle.
voluntary.
Even though they were not prisoners, they were effectively trapped and controlled, because they were unable to work legally elsewhere.
Van
Der Mussele it was said:
"The court wouldrecall
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."
reality
consenting to the supply of his labour even though he does indeed supply it.
"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 againstreceipt
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" [7]
voluntarily.
Nowhere, she argues, does the Decision deal with the fact that it was essentially the claimant's evidence that she had nowhere else to go and if she did, no money (or passport)[8] to get there and that she stayed in the house until she could bear Frank's advances no longer because at least she had shelter and food without having to
resort
to selling her body.
The defendant's submissions
referred
to in the Decision. There is no basis for contending that the Decision has been made on a basis other than a consideration by the defendant of whether the claimant has established that she is the
victim
of forced labour. It is clear, Miss Barnes argues, that the defendant understood the distinct concepts and applied them.
reference
to domestic servitude (and sexual exploitation), it is clear that it is not meant to
relate
solely to those concepts but also forced labour. Miss Barnes points out that the Guidance itself aids the defendant in this context. In the section headed "trafficking: exploitation forced labour" at page 35 of the Guidance it specifically says:
"For forced labour within thehome,
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 ofviable
economic alternatives that make people stay in such situations (unless those are actively abused to induce and control the
victim."
verbally
abuse her or threaten her either with expulsion from the house or
reporting
her to the authorities. The position therefore is distinguishable from that which existed for example in Hounga. Whilst it is true that Anne-Marie held the claimant's passport, Miss Barnes points out that in fact the claimant never asked Anne-Marie for it.
reality,
the menace of a penalty identified by the claimant is loss of
home
and food but she was never threatened with these sanctions and it would be odd, argues Miss Barnes, if these were seen as automatically a menace of a penalty when that scenario can exist in many perfectly innocent situations such as, for example an au pair living in a family
home.
voluntary
or involuntary nature of her employment, Miss Barnes argues that the claimant did have a choice, even on her own evidence. She could leave at any time and this is illustrated by the fact that eventually she did so and when she did it was not because of events triggered by Anne-Marie's behaviour but by Frank's conduct. The claimant specifically admits that in question 142 of her asylum interview.
voluntary
basis because she was not badly treated by Anne-Marie at any time. She thus fell on the less sinister side of Skrivankova's blurred line that I
refer
to in paragraph 118 above.
- 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.
![]()
- She had Saturdays off and preferred to spend them at the
home
"
relaxing".
![]()
response
to the observations made by the Indian Supreme Court in the People's Union for Democratic
Rights
case that I
refer
to above, Miss Barnes points out that in
R
v
SK (2011) EWCA Crim 1691 the court held that:
"Where it is alleged that one person has been compulsorily employed by another, the level of pay he or she hasreceived,
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
recognise
that there is some strength in the contentions by Miss Barnes on behalf of the defendant, I am satisfied that the defendant's conclusion that, even on the claimant's own account, she did not meet the criteria for establishing herself as a
victim
of trafficking was irrational/unlawful.
relevant
definitions of human trafficking and also sets out the 3 components necessary for that to be established. In addition, it sets out the definition of compulsory labour. However, it does appear on the face of the Decision that the defendant considered the "exploitation" component in the definition of trafficking in the context of whether the claimant had been subjected to servitude, albeit domestic servitude, and sexual exploitation. There is no separate heading in the Decision dealing with forced labour, as there is for domestic servitude and sexual exploitation. It is clear that there is a hierarchy and it is unclear why the defendant appears to have considered this matter only in the context of whether the defendant was in servitude or sexually exploited. I do not overlook the steer given by the Guidance to which I
refer
in paragraph 117 above but the claimant is, in my
view,
entitled to expect the Decision to specifically address issues
relating
to exploitation by way of forced labour
rather
than (or at least in addition to) domestic servitude and sexual exploitation.
really
a total absence of any
reference
to menace of a penalty or the question of whether the claimant's services were offered on a
voluntary
basis in the context of the claimant's specific circumstances. This itself suggests that scant, if any, consideration was given to whether the claimant met the criteria for trafficking on the basis that she was exploited for the purposes of forced labour.
receiving
the expected payments. That is not the test for forced labour, the test is whether she was under menace of a penalty and whether her services were
voluntarily
given. As I have said above, there appears to be no analysis of that in the context of the specific circumstances surrounding the claimant's case.
view,
it is also
right
to say that the dichotomy that the defendant has drawn between events in Malawi and those in the UK is one that cannot be sustained because one may feed into the other. It is events in Malawi which may be the cause of the claimant's
vulnerability
in the context of the second component of trafficking.
view
that the claimant does not meet the "means" component of trafficking because she has not established that she was subjected to threat or use of force in the manner
required
by that second component. That of course includes whether she was in a position of
vulnerability.
The defendant appears to have concluded that she does not meet that second component because she was deceived as she expected to be paid after 3 months but was not paid. There is no separate analysis of whether she was in a position of
vulnerability.
There is no
reference
to
vulnerability,
in contradistinction to at least a
reference
being made to that in the consideration of the "means" component in the context of events in Malawi.
referred
to in the Decision is not sufficiently convincing. There is simply no
application
of the general principles to the circumstances of this case other than the observation that the claimant was not mistreated. An
applicant
seeking to establish that he/she has been the
victim
of trafficking is entitled to know that full and proper analysis of the claim has been given and that can only be achieved if the Decision demonstrates how general principles have been specifically applied to that
applicant's
claim. There is in my
view
the lack of the "high standard of
reasoning"
that Mutesi calls for.
relation
to the absence of menace of penalty and the absence of evidence of involuntary services or indeed her submissions as to the evidence which positively supports the contention that the services were
voluntary.
referred
to in the context of menace of a penalty and
voluntary
supply of labour has found its way into the Decision. In the end, as I have said, the Decision makes no
reference
to forced labour other than in generic terms. It is only after a consideration of domestic servitude and sexual exploitation that the defendant concludes that "in line with the assessment above, it is not considered you meet Part C (exploitation) of the definition (of trafficking)".
right
that the defendant should
reconsider
this
application.
In so far as the defendant doubts the credibility of the claimant the decision should set out the factors which have been balanced in making that decision and they should be applied to the claimant's specific
application
including how they impact upon her claim that, in her case, exploitation for the purposes of trafficking took the form of forced labour. It may be that the
result
will be the same but the claimant is entitled to know that her actual claim has been critically and properly analysed.
reject
therefore the defendant's submission that the claim should fail at this stage on that basis.
Proposed Order
require
the defendant to
reconsider
the claimant's claim that she is a
victim
of trafficking.
Final
remarks
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, 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 Note 5 a phrase Note 6 See paragraph 38 above. [Back] Note 7 People's Union for Democratic Note 8 the evidence being that Anne-Marie held the claimant's passport. [Back]
ratified
on 17 December 2008 and which came into force on 1 April 2009. [Back]
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]
referred
to in the Guidance [Back]
Rights
v
Union of India and others. A decision of the Indian Supreme Court
reported at 1983 1 SCR 456. [Back]