Court clarifies approach in deciding whether someone is a victim of human trafficking - Matrix Chambers
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Court clarifies approach in deciding whether someone is a victim of human trafficking

Published:

Re: MN v The Secretary of State For The Home Department [2020] EWCA Civ 1746

These two appeals both raise issues about the correct approach to deciding whether someone is a victim of human trafficking for the purpose of the process established under the so-called National Referral Mechanism (“the NRM”). We give more details of that process later, but in short the NRM provides for a two-stage identification procedure under which

  • a “competent authority” (“CA”), which at the time material to these appeals was typically a unit within the Home Office, first makes an initial decision about whether there are “reasonable grounds” to believe that a person is a victim of trafficking; and
  • subsequently, after further consideration/investigation, the CA makes a “conclusive grounds decision”as to whether the person in question is in fact a victim of trafficking.

 

Three issues were raised in this appeal:

  1. Standard of proof (ground 1 in both appeals). The Appellants submit that they were entitled to continue to receive support and protection for as long as there was “credible suspicion”, or “reasonable grounds to believe”, that they were victims of trafficking; and that the provision in the NRM for a second stage, at which a conclusive grounds decision is made on the balance of probabilities, is contrary to their rights under article 4 of the European Convention on Human Rights and the applicable EU Directive. They contend that the Judge in both cases was wrong to reject that submission.
  2. Approach to expert evidence (ground 3 in both appeals). In both cases the Appellants argued before the Judge that the CA had taken the wrong approach to the expert evidence that was before it. They contend that that argument was wrongly rejected.
  3.  Approach to credibility (ground 4 in both appeals). In both cases the Appellants argued before the Judge that the CA had taken the wrong approach to assessing the credibility of their accounts. They contend that that argument also was wrongly rejected.

In addition there is in the case of each appeal a ground peculiar to it (as it happens, ground 2 in each case). These are:

  • Anxious scrutiny. MN argues that in her case Farbey J wrongly held that no duty of anxious scrutiny arose.
  • “Nexus”. While she was still a child IXU underwent female genital mutilation (“FGM”). She says that the FGM was performed for the purpose of an intended forced marriage to an older man. The Judge held that that was immaterial to the question whether she was a victim of trafficking because the connection between the FGM and any possible future exploitation was not sufficiently proximate. IXU contends that he was wrong to do so. This has been referred to before us as the “nexus” issue, and we will retain the shorthand for convenience, though we are not sure that it is entirely apt.

Held: the court allows MN’s appeal on grounds 2-4, though not on ground 1, and quash the CA’s decision on her application for reconsideration of the original conclusive grounds decision. The result is that that application will have to be determined afresh by a different decision-maker on behalf of the CA.

The court acknowledges that they have subjected the reasoning of the decision letter in MN’s case to very detailed criticism. The question of whether a person is a victim of trafficking governs access to important Convention rights. The fact that the Government has chosen to entrust the determination of that question to an official in the Home Office rather than to a court or tribunal cannot justify a less rigorous approach to the reasoning required to support their decisions. The court concludes that the CA here adopted a wrong approach to its task, as well as making a number of particular errors, and overall its decision cannot stand.

The court will allow IXU’s appeal on grounds 2 and 3, though not on ground 1, and quash the CA’s decision, with the result that her application will have to be determined afresh by a different decision-maker.

The court concluded that the court of appeal was wrong to decide that the act of taking IXU away to be circumcised could not naturally be described as being for the purpose of subjecting her to a forced marriage. The case may be near the borderline, but we believe that the decision is one which required a proper assessment by the CA as the designated fact-finder. It is accordingly necessary for the issue to be remitted to it.

Raza Husain QC was involved in this case.