Reported Case
High Court quashes Home Office’s decision unlawfully rejecting a trafficking survivor’s claim (11 November 2021)
Date: 11/11/2021
Judgment has been handed down today in R (on the application of TVN) v Secretary of State for the Home Department [2021] EWHC 3019 (Admin), a trafficking case whereby the judge has quashed the Home Office’s decision and failure to recognise our client as a survivor of trafficking for a third time. The Judge criticised the Single Competent Authority (SCA) for not considering the expert evidence properly and unreasonable relying on the client’s credibility.
Our client is a Vietnamese national, who was arrested at a converted cannabis factory in 2017, and charged with cannabis cultivation. He subsequently pleaded guilty, prior to a Conclusive Grounds decision being made. As such, he is part of a cohort known to the Defendant as being particularly vulnerable to the precise sort of exploitation – cannabis cultivation in the UK – to which he was subjected. The Home Office’s own published policy guidance, ‘Country Policy Information Note: Vietnam: Victims of Trafficking’ (April 2020, v 4.0) acknowledges that many young male Vietnamese nationals are trafficked to and within the UK for the purposes of cannabis cultivation.
Following two sets of previously compromised judicial review proceedings, the Defendant agreed to re-consider the trafficking claim, which resulted in the decision under challenge. Permission to proceed with judicial review was granted by Deputy High Court Judge Anthony Metzer QC, on 23 August 2021. In granting permission, the Deputy High Court Judge observed “the Claimant has an arguable case that the Defendant has unlawfully rejected his claim to be a victim of trafficking.”
In addition to his own personal credibility of his account, our client maintains that there are Conclusive Grounds to believe he has been trafficked because:
- Two consultant psychiatric reports diagnosing the Claimant with post-traumatic stress disorder and depression, consistent with his account of being trafficked, and further, identifying that due to trauma, his ability to recall and give a coherent account is impaired, and that he would need to be treated as a vulnerable witness for the purposes of any assessment of his evidence.
- A medico-legal report identifying both scarring and psychological symptoms consistent with his overall account, applying the Istanbul Protocol on the Effective Investigative and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment.
- Medical records from in the detention estate, including both Rule 35 reports and Healthcare records) that showed he seriously deteriorated in immigration detention, as would be expected with a putative victim of trafficking, consistent with the Adults at Risk policy;
- Three trafficking expert reports, two from former law enforcement backgrounds and one from a trafficking expert involved in the identification of victims, all of whom found the Claimant’s account consistent with their experiences of Vietnamese victims of trafficking for cannabis cultivation, and further, identified gaps in the investigative process in terms of eliciting his full account.
There is a substantial body of evidence, independent of the Claimant, which shows it is more likely than not that he has been trafficked for the purposes of forced labour/forced criminality.
The Judge found the following:
“The Claimant's account was that this trauma originated from those who were controlling him. Hence, whether the Claimant's account was credible about the details which caused the SCA concerns, this report amounted to evidence the Claimant had experienced multiple and repeated trauma over long periods. The SCA was, in my judgment, required to ask himself whether the medical evidence meant that it was more likely than not that the Claimant had suffered trauma at the hands of those who he alleges were controlling him. There is no indication from the Decision that the SCA appreciated that this was the effect of the evidence or engaged with the question as to whether the Claimant had indeed suffered trauma. Treating the expert evidence as solely "mitigation" for a decision that the Claimant had no credibility misses the point. This was evidence the Claimant had experienced multiple and repeated trauma over long periods and the SCA was obliged to engage with that evidence in deciding whether the Claimant was a victim of trafficking. His failure to do so was thus unlawful.
There were, however in my judgment, more fundamental problems with the method adopted by the SCA. First, the SCA identified a series of "inconsistencies" in details about the Claimant's evidence where he was not satisfied with the explanations. Even assuming that these inconsistencies related to matters that were serious and significant in nature, which in my judgment they were largely not, if the SCA was to go on to conclude that these amounted to lies, the SCA needed to explain why he had discounted other potential explanations for any inconsistencies. It is unclear from the decision why the SCA decided the inconsistencies were not the result of the Claimant's complex PTSD as opposed to being deliberate lies by the Claimant. The SCA is the decision maker and is entitled to weigh the evidence and reach a conclusion. But the need for a "high standard of reasoning" means that the SCA has to explain why he reached the conclusion that inconsistencies were evidence of lies as opposed to being the product of a disordered mind which was responding to having been exposed to sustained trauma.”
Instructed solicitor Shalini Patel comments:
“This decision should remind the Single Competent Authority that they must take into account their own guidance on personal credibility and inconsistencies in a victims account. The case must be taken as a whole and all independent expert evidence must be properly considered. This client has been waiting for a positive conclusive grounds decision for too long now and I am hoping the Judge’s remarks will be taken into consideration by the decision maker when considering the claim for a fourth time. There is some very helpful guidance provided in this judgment which the Single Competent Authority must take into account for all cases.”
The decision by the Single Competent Authority has now been quashed and we hope for a positive decision for our client, which is now well overdue.
Legal team: our public law solicitor Shalini Patel, instructed Emma Fitzsimons of Garden Court Chambers.