Unlawful for Home Office to ignore expert evidence in trafficking decisions
The Administrative Court last week (22.5.15) handed down judgment in the case of R (on the application of AB) v Secretary of State for the Home Department  EWHC 1490 (Admin), quashing a decision not to recognize AB as a victim of human trafficking for the purposes of the Council of Europe Convention on Action against Trafficking (CAT), and mandating that the Secretary of State remake that decision.
AB was born in Nigeria and claims to have been a victim of domestic servitude from the age of 6, firstly in Nigeria and then in the UK, having been trafficked here in 2000 by her Nigerian “employer”.
After escaping from her trafficker in approximately 2003 AB was in a series of abusive relationships. She ultimately claimed asylum in 2013 after escaping domestic violence perpetrated by her then-partner and the father of her three young children.
Soon thereafter she was hospitalised under the Mental Health Act, during which time she was also referred into the National Referral Mechanism (NRM) to determine whether she was a victim of trafficking (VOT). AB received a positive reasonable grounds (RG) decision that she was a VOT to the lower standard but this was later followed by a negative conclusive grounds (CG) decision and the simultaneous refusal of her asylum claim. The Secretary of State for the Home Department (SSHD) found that AB had been largely internally consistent in setting out her account but that her claim to have been trafficked was defeated, on the balance of probabilities, because after her escape she had not reported her experiences to the police and had conducted her day to day life in a manner which the SSHD deemed implausible for a VOT.
AB challenged the decision primarily on the basis that the SSHD had failed to have any or any adequate regard to highly relevant evidence including medical reports from psychiatrists involved in AB’s care and an expert report from the trafficking organization, Ashiana, which had housed and supported AB for a number of months. This was notwithstanding the fact that the CAT and the SSHD’s own guidance mandate that NRM decision makers consult with any relevant support agencies and consider any relevant medical evidence before reaching a decision.
Furthermore, AB contended that it was irrational for the Secretary of State to disbelieve her trafficking claim on the basis that she had not reported it to the police when the SSHD’s own guidance enunciates the multiple reasons why a VOT may feel unable or unwilling to approach the police.
Furthermore, it was irrational to speculate as to how a “plausible” VOT should behave.
Finally, AB argued, it is well established that the onus is in fact upon the SSHD to refer credible allegations of trafficking to the police and previous caselaw has established that a credible allegation arises at the latest when a positive RG decision is made. The failure to carry out an effective investigation in this case constituted a breach of the state’s positive duty under Article 4 ECHR.
In response to the Article 4 challenge the SSHD adduced last minute evidence comprising a purported internal referral form sent to the SSHD’s “Operational Intelligence Unit” (OIU) on the same day that the positive RG decision was made. The SSHD claimed that the OIU had filtered this referral and found there was insufficient information for the case to be referred to the Home Office’s Criminal and Financial Investigation (CFI) unit which includes seconded police officers. This was the first AB or her representatives had heard of the OIU or its filtering procedures.
His Honour Judge Clive Heaton QC quashed the decision as being irrational and unlawful. He did so firstly on the basis that the SSHD’s approach to the psychiatric evidence was irrational. He held at para 39:
… in my judgment the decisionmaker was under a clear obligation to explain how she had come to the conclusion that there was ‘no evidence’ that the Claimant was suffering from mental health illness [in 2005]… Having wholly failed to do so in my judgment the decision is irrational.
Secondly, he found that the SSHD’s approach to the Ashiana report was irrational and unlawful. He held at para 41:
That report expresses the opinion that the Claimant is a trafficked person. Of course that opinion does not bind the decisionmaker. However, the decisionmaker here fails to grapple with that opinion at all, or explain why she disagrees with it. In my judgment given the importance of this material as identified by the SSHD’s own policies the decisionmaker was under an obligation to recognise the conclusions of the report, engage with them and explain, however briefly, why she disagreed with them. In failing to do so in my judgment she again acted unlawfully in failing to have sufficient regard to her own policy and irrationally in that she did not take the opinion expressed in that report into account.
The judge did not go on to determine whether there had been a failure to refer the case to the police and thus a breach of Article 4 because there was insufficient evidence upon which to adjudicate. However, notably, the judge concluded by stating at para 43:
… I was concerned that a body within SSHD seemed to be filtering referrals to the police about potentially trafficked persons at all. We have surely learned by now that we best safeguard the vulnerable by the relevant agencies sharing information as widely as possible so that there can be a ‘joining of the dots’ rather than each such agency working in relative isolation.
The case squarely establishes the duty upon the SSHD in CG decisions to positively engage with relevant evidence and to give cogent reasons if she chooses to reject that evidence. The SSHD can no longer contend, as she did in AB’s case, that simply providing a list of evidence which was before her is sufficient to say she has had regard to it.
The case also raises a number of interesting questions, several of which may need to be pursued in further litigation.
Firstly, as to the standard of review in a judicial review against a negative CG decision, AB argued that it was one of “anxious scrutiny” rather than an “unvarnished Wednesbury” test as contended for by the SSHD. In the alternative, AB argued that the gap between a Wednesbury irrationality test and a proportionality test has been greatly reduced in light of the recent Supreme Court judgments in Kennedy v Charity Commission  UKSC and Pham v Secretary of State for the Home Department  UKSC. Given that this case involved fundamental human rights AB argued that the outcome would be very similar whichever test was applied.
Ultimately, while finding that there “was much attractive” about AB’s submissions on this point, the judge found that he did “not have to come to conclusions about them here” because he could reach his decision on the basis of “unvarnished Wednesbury.”
Secondly, as raised by AB in the instant case, there is the question of whether a hitherto unknown internal filtering department within the SSHD, not referred to in any policy documents and whose procedures are not notified to VOTs or their representatives (who thus have no opportunity to either consent to or contribute to the referral) can allow the SSHD to contend that she is meeting her positive duty under Article 4 to effectively investigate and identify VOTs. In this case, the referral was never re-visited even after AB had supplied further information which could have helped to identify her trafficker. AB contended that there is an ongoing positive duty on the SSHD to investigate, particularly as more information comes to light.
As a final note which may be of interest to practitioners in this field, AB argued in her grounds that her case was not within the category of claims for judicial review subject to the “Transfer Direction” made by the Right Honourable Lord Judge, Lord Chief Justice of England and Wales, on 21 August 2013, transferring certain immigration and asylum judicial review claims from the High Court to the Upper Tribunal as of 1 November 2013. Thus whilst she issued in the Upper Tribunal (as advised by court lawyers), AB requested and was granted a transfer to the Administrative Court. It may still be best practice for practitioners issuing claims against a negative CG trafficking decision in the Admin court to address the jurisdictional point explicitly.
 Direction given in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005 and section 18 of the Tribunals, Courts and Enforcement Act 2007 Jurisdiction of the Upper Tribunal under s. 18 of the Tribunals, Courts and Enforcement Act 2007 and Mandatory Transfer of Judicial Review applications to the Upper Tribunal under s. 31A(2) of the Senior Courts Act 1981; Available at: http://www.ein.org.uk/news/most-immigration-judicial-review-applications-move-upper-tribunal-november (last accessed 8 October 2014).