MN, R (on the application of) v Secretary of State for the Home Department & Anor, Court of Appeal - Queen's Bench Division, November 29, 2018, [2018] EWHC 3268 (QB)

Resolution Date:November 29, 2018
Issuing Organization:Queen's Bench Division
Actores:MN, R (on the application of) v Secretary of State for the Home Department & Anor


Neutral Citation Number: [2018] EWHC 3268 (QB)




Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 29/11/2018

Before :


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Between :

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Ms Shu Shin Luh (instructed by Simpson Millar LLP) for the Claimant

Mr Gwion Lewis and Mr William Irwin (instructed by Government Legal Department) for the Defendant

Ms Stephanie Harrison QC, Mr Ronan Toal and Ms Gemma Loughran (instructed by Herbert Smith Freehills LLP ) for the Intervener

Hearing dates: 16 and 17 October 2018

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  1. The claimant has applied for judicial review of a decision that she is not a victim of trafficking. The decision was taken by the competent authority (`CA') on behalf of the Secretary of State for the Home Department under the National Referral Mechanism (`NRM'). The function of the NRM is to identify victims of trafficking under the Council of Europe Convention on Action against Trafficking in Human Beings (`ECAT'). The relevant guidance to be applied under domestic law was `Victims of modern slavery - Competent Authority guidance'; version 3; 21 March 2016). I shall refer to this as the CA guidance.

  2. Under the CA guidance, the identification of a person as a victim of trafficking is a two-stage process. The first part is the `reasonable grounds decision' which acts as an initial filter designed to determine whether someone is a `potential' victim of trafficking (p.50). At this stage, when the CA receives a referral under the NRM, it must decide whether it is `reasonable to believe' that a person is a victim of trafficking on the information available (p.50). According to the CA guidance, this standard of proof will be satisfied where the CA `suspects but cannot prove' that a person is a potential victim (p.19). It is a `relatively low threshold' (p.20). The second stage involves further inquiry and leads to a `conclusive grounds decision' as to whether someone `is in fact a victim' (p.50). At this second stage, the CA must consider whether there is sufficient information that the individual is a victim on the balance of probabilities. The key issue in this case is whether the balance of probabilities is an appropriate standard; or whether a lower standard must be applied by virtue of the United Kingdom's human rights obligations.

  3. I heard submissions over the course of two days from Ms Shu Shin Luh on behalf of the claimant and Mr Gwion Lewis (together with Mr William Irwin) on behalf of the Secretary of State. Given the importance of the issue, the AIRE Centre was granted permission to intervene. I am grateful to Ms Stephanie Harrison QC together with Mr Ronan Toal and Ms Gemma Loughran for their submissions on the intervener's behalf.

    The Facts

  4. The claimant is an Albanian national. On 3 November 2012, she arrived in the United Kingdom by air, apparently from Italy. Upon being interviewed by immigration officials, she claimed to be coming for work and said that she was not involved in human trafficking. She was removed to Italy on the following day. On 26 February 2013, having returned to the United Kingdom, she claimed asylum. She underwent a screening interview on the same day in which she told the interviewing officer that a man whom she was intending to marry had taken her from Albania to Italy where she had been sold to another man as a prostitute. That other man had beaten and raped her. She was forced to work as a prostitute under surveillance in a house until it was raided by police. In the chaos of the raid, she managed to escape. She made her way to a nearby airport and flew to Albania. When her traffickers tried to track her down, she left Albania and came to the United Kingdom via Italy.

  5. On 14 March 2013, the claimant underwent a full asylum interview. It is a central part of the Secretary of State's case that there were significant discrepancies between her account at screening and her account in interview. I shall return to the discrepancies later.

  6. In light of the nature of the asylum claim, the Secretary of State referred the case under the NRM in order for the CA to make a decision as to whether the claimant was a victim of trafficking. On 21 March 2013, the CA made a reasonable grounds decision in the claimant's favour. Following further investigation, the CA wrote to the claimant on 27 September 2013 to inform her of a negative conclusive grounds decision, i.e. that she was not considered to be a victim of trafficking.

  7. On 28 January 2015, the Secretary of State refused the claimant's asylum claim on the basis (among other things) that it was not credible. The claimant appealed to the First-tier Tribunal (`FTT'). At her appeal hearing on 24 June 2015, the FTT was provided with a short witness statement in which the claimant gave her response to the issues raised in the Secretary of State's written reasons for refusal of asylum. Ms Luh drew my attention to the brevity of the statement and criticised the previous solicitors who settled it. That criticism is unfounded: there is no evidence that the solicitors did anything other than faithfully reflect the extent of their client's instructions. In any event, the FTT (which is a specialist tribunal cognisant of the difficulties faced by vulnerable appellants) saw and heard the claimant give evidence.

  8. In the conspicuously detailed and careful decision which followed, the FTT dismissed the appeal in the following terms:

    `I have rejected the Appellant's factual claim in its entirety and so it follows that she has no well-founded fear of persecution and/or is not at risk of serious harm on return to Albania. She is not entitled to asylum, humanitarian protection or protection under Article 3 of the ECHR'.

    Despite the FTT's negative findings, on 21 November 2016, the Secretary of State agreed to reconsider the conclusive grounds decision. In support of the reconsideration, the claimant's present solicitors submitted a large quantity of documentation. I need not mention it all. It suffices to note that, in reaching its decision, the CA considered three witness statements from the claimant. The first statement set out in detail her claim to have been trafficked. The second statement is said to have provided an update on her counselling sessions and other matters relating to accommodation and support. The third witness statement contained the claimant's response to questions raised by the CA in relation to her account and in relation to information which the Secretary of State had obtained from the Albanian authorities.

  9. Various reports were submitted including: (i) a letter from Hannah Rees who was a Counselling Co-ordinator at North London Rape Crisis (`NLRC'); (ii) a letter to the claimant's GP by Dr Rebecca Johnson who was part of the Haringey Complex Care Team and who had carried out a psychological assessment of the claimant; and (iii) a report by Mirjam Klann Thullesen who has expertise in the area of modern slavery, specifically human trafficking. By a letter dated 7 August 2017, the CA informed the claimant of the decision that, on the balance of probabilities, she was not assessed as being a victim of trafficking. The reasons for the decision are contained in a `Consideration Minute' running to over thirty pages. In summary, the Secretary of State did not believe the claimant's account of past events.

  10. The CA noted that Ms Rees's report was based on a written NLRC assessment and oral communication with the claimant's treating counsellor. Ms Rees had not directly obtained the information on which she relied to reach her conclusions. The report concluded that the claimant's mental health difficulties were consistent with her account of trafficking but did not explore other alternative causes. There were inconsistencies between the claimant's account as set out in Ms Rees's report and her accounts elsewhere. In relation to Ms Rees's report, the CA concluded:

    `Taken in the round with the rest of your claim, this report is not considered mitigation for credibility issues.... In fact, it only serves to produce further inconsistencies'.

  11. In considering Dr Johnson's report, the CA noted the report's conclusion that the claimant was experiencing severe Post Traumatic Stress Disorder (PTSD), low mood and feelings of shame and guilt as a result of traumatic experiences in her past. The claimant had described `frequent and distressing intrusive memories and flashbacks of specific moments during the trafficking and sex working'. Nevertheless, the CA noted further inconsistency between the claimant's account to Dr Johnson and her accounts elsewhere. Dr Johnson appeared to have taken the claimant's account at face value without considering any alternative aetiology for her PTSD. The CA concluded:

    `Dr Johnson's report hinges on accepting your narrative as factual; however for the reasons given throughout this letter, your entire account lacks plausibility and consistency. have failed to offer convincing evidence with regards to any aspect of your claim, outside of your Albanian nationality...For these reasons, Dr Johnson's report does not add weight to your claim'.

  12. In analysing Mirjam Thullesen's report, the CA weighed the `notable discrepancies' between the account which the claimant gave to Ms Thullesen and previously submitted information. The CA noted Ms Thullesen's professional opinion that the claimant's narrative contained a significant number of trafficking indicators and was broadly consistent with the experience of other Albanian victims of trafficking. Ms Thullesen considered it unlikely that the claimant had fabricated the key features of her experiences or that she was...

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