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Reported Case

Judicial Review claim allowed after SSHD fails to consider mitigating factors and give sufficient reasons for making negative reasonable grounds decision (5 August 2019)

Date: 05/08/2019
Duncan Lewis, Reported Case Solicitors, Judicial Review claim allowed after SSHD fails to consider mitigating factors and give sufficient reasons for making negative reasonable grounds decision

The Administrative Court has found that that the SSHD (in its guise as the National Referral Mechanism [NRM]) unlawfully concluded that our client, WEN, did not have ‘reasonable grounds’ that she is a victim of human trafficking.





Background

The client is a Brazilian national who was referred to Duncan Lewis Solicitors by Medical Justice on the eve of her first proposed removal on 26th December 2019. She had a history of self-harm and suicidal ideation during her lengthy detention at IRC Yarlswood. Whilst detained she raised allegations of human trafficking, stating that after sustained and serious domestic violence in her home country, she was coerced and transported to the United Kingdom for the purpose of exploitation. She alleged that she was subsequently threatened and sexually exploited by this individual, who she discovered on her arrival was a serving prisoner at HMP Wormwood Scrubs.

Whilst still detained, she was interviewed in relation to her trafficking claim and a negative reasonable grounds decision was subsequently made by the NRM. She was due to be removed on 26th December 2018 before she was referred to Duncan Lewis Solicitors at the last minute by Medical Justice, who were concerned about her ongoing suicide risk should a removal attempt take place. After this last-minute intervention, her removal directions were deferred and a judicial review was issued challenging - amongst other grounds - the negative reasonable grounds decision.

After permission was granted by Karen Steyn QC, the case went for a full hearing in front of Ms Margaret Obi (sitting as a Deputy High Court Judge) in which the judge made the decision that the reasonable grounds decision should be quashed and remitted to the SSHD for reconsideration.



Judgment

The judge found that in making a reasonable grounds decision, the NRM:

‘…should set out all relevant factors which have been taken into account including how they impact upon the claim that the exploitation took the form of forced labour and sexual exploitation. Whether the trafficking claim succeeds or fails the Claimant is entitled to know that her specific circumstance has been critically and properly analysed.’

The reasonable grounds decision also was considered unlawful due to the failure of the decision maker to acknowledge the low threshold at the reasonable grounds stage.

‘The decision maker must not lose sight of the low threshold for the reasonable grounds test – 'I suspect but I cannot prove' and the traumatic effects of trafficking when assessing the timing of disclosures and previous inconsistent accounts.’

The judge handed down helpful guidelines as to how the NRM should consider claims at the reasonable grounds stage, including noting that it is integral for the decision maker to recognise reasons for late disclosure and how traumatic events impact upon the potential victim of trafficking’s ability to recollect events.

It was also noted by the judge:

‘Inconsistencies on their own are not enough to justify a negative reasonable grounds decision. The Guidance requires the Defendant to assess all information critically and objectively whilst recognising that there may be valid reasons why a putative trafficking victim's initial account may appear to contradict a subsequent account.’

The judgment should provide an important reminder of the relevant threshold for a reasonable grounds decision as well as the requirement of the NRM to deal with vulnerable victims of trafficking in a careful and thorough way.

Public law solicitor Jamie Bell. , who represented the Claimant comments;

“We are delighted that the Court has made the decision to quash the unlawful decision to find that there were no reasonable grounds to find that our client was a victim of trafficking. Our client has been subjected to an awful history of violence and exploitation and asked to be kept safe and protected. Instead she was not believed and an attempt was made to remove her from the country as soon as possible. She was let down. This judgment sends the important message that the Home Office have a responsibility to help victims of modern slavery and this must be more important than removal targets.”



Representation

Counsel for the Claimant: Grace Capel, Garden Court Chambers

Solicitors for the Claimant: Lead Solicitor Jamie Bell. Assisted by Lottie Hume, Trainee Solicitor, Elleanor Wilkins, Caseworker and Emma Dawson, Caseworker – all from Duncan Lewis Solicitors’ Public Law team.

Lead solicitor Jamie Bell is a legal 500 2019 recommended solicitor in the public law department based in our Harrow office. He deals with vulnerable clients, including those in detention, those suffering from complex psychological issues and victims of torture and trafficking. He frequently takes on cases at short notice and at all hours, to prevent the unlawful removal of asylum-seekers; with a particular commitment to representing Afghan Claimants.

Contact Jamie on 020 3114 1184 or at jamieb@dunanlewis.com



 

Find full details of this case on Bailii’s website here.
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