Court of Appeal provides important guidance as to the correct approach to be used by the Competent Authority when deciding whether an individual is a victim of trafficking

Monday 21 December 2020

The Appellants were represented by Ronan Toal of the Garden Court Chambers Immigration Team and Shu Shin Luh of Doughty Street Chambers, led by Raza Husain QC of Matrix Chambers. They were instructed by Imogen Townley of Wilson’s for IXU and Silvia Nicolaou Garcia of Simpson Millar for MN.
The AIRE Centre and Anti-Slavery International intervened in the appeals. Our own Stephanie Harrison QC, Gemma Loughran, and Ella Gunn were instructed by Herbert Smith Freehills LLP to represent the AIRE Centre.

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The Court of Appeal has handed down judgment in the case of MN and IXU v Secretary of State for the Home Department [2020] EWCA Civ 1746. The Court allowed the Appellants’ individual appeals in a decision of wider importance to all potential victims of trafficking.

The Court rejected the Appellants’ first ground of appeal that it was unlawful to terminate the support provided under Article 12 of the Trafficking Convention to potential victims of trafficking on the basis of a conclusive decision determined on the balance of probabilities. 

However, it accepted that the Competent Authority (‘CA’), a unit within the Home Office that considers and determines claims to be victims of trafficking, had made significant errors in its approach to the expert evidence submitted in support of the Appellants’ claims and in its assessment of the Appellants’ credibility. 

The judgment gives useful guidance building upon the judgment of the Supreme Court in KV (Sri Lanka)[1] on the approach to be taken to expert evidence from doctors[2] at [121] and restating the important Mibanga principles:

(1) The decision whether the account given by an applicant is in the essential respects truthful has to be taken by the tribunal or CA caseworker (for short, the decision-maker) on the totality of the evidence, viewed holistically – Mibanga.
(2) Where a doctor’s opinion, properly understood, goes no further than a finding of “mere consistency” with the applicant’s account it is, necessarily, neutral on the question whether that account is truthful –see HE (DRC), but the point is in truth obvious.
(3) However, it is open to a doctor to express an opinion to the effect that his or her findings are positively supportive of the truthfulness of an applicant’s account (i.e. an opinion going beyond “mere consistency”); and where they do so that opinion should in principle be taken into account – HK; MO (Algeria); and indeed, though less explicitly, Mibanga.  In so far as Keene LJ said in HH (Ethiopia) that the doctor in that case should not have expressed such an opinion (see para. 116 (1) above), that cannot be read as expressing a general rule to that effect. 
(4) Such an opinion may be based on physical findings (such as specially characteristic scarring).  But it may also be based on an assessment of the applicant’s reported symptoms, including symptoms of mental ill-health, and/or of their overall presentation and history.  Such evidence is equally in principle admissible: there is no rule that doctors are disabled by their professional role from considering critically the truthfulness of what they are told – Minani; HK; MO (Algeria); SS (Sri Lanka).  We would add that in the context of a decision taken by the CA on a wholly paper basis, a doctor’s assessment of the truthfulness of the applicant may (subject to point (5) below) be of particular value. 
(5) The weight to be given to any such expression of opinion will depend on the circumstances of the particular case.  It can never be determinative, and the decision-maker will have to decide in each case to what extent its value has to be discounted for reasons of the kind given by Ouseley J at para. 18 of his judgment in HE (DRC).
(6) One factor bearing on the weight to be given to an expression of opinion by a doctor that the applicant’s reported symptoms support their case that they were persecuted or trafficked (as the case may be) is whether there are other possible causes of those symptoms.  For the reasons explained by Ouseley J (loc. cit.), there may very well be obvious other potential causes in cases of this kind.  If the expert has not considered that question that does not justify excluding it altogether: SS (Sri Lanka).  It may diminish the value that can be put on their opinion, but the extent to which that is so will depend on the likelihood of such other causes operating in the particular case and producing the symptoms in question.  

The Court criticised the Respondent’s guidance on “How to assess credibility when making a Reasonable Grounds or Conclusive Grounds decision” and in particular her categorisation of “mitigating circumstances” that can affect a victim of trafficking’s ability to give a clear account. In addition to highlighting that the language of mitigation inappropriately echoed criminal proceedings, the Court found at [126] that ‘it implies an approach under which the decision-taker first identifies the defects in the account of a putative victim and then tries to decide whether they can be excused for reasons of the kind given’, which didn’t reflect the real nature of the exercise. The Court explained that:

Full weight must be given to the evidence (and guidance) about the difficulties that victims of trafficking have in telling their stories, not only because of the effects of trauma but because their experiences often engender distrust of authority and sometimes entangle them in deceptions of various kinds from which it is difficult to escape.  It is also necessary to heed the caution expressed in the authorities about judging accounts to be implausible without complete knowledge of the relevant circumstances, and making full allowance for how people can behave in circumstances of stress. [253]

In examining the CA’s decision in respect of MN, the Court detailed the approach the CA should have undertaken:

What it needed to do was to identify, if only in summary form, the specific opinions expressed by the witnesses that were potentially supportive of the truth of MN’s account, and to assess in relation to each the weight to be given to it – which of course involves identifying the points which qualified or undermined their value. The CA did not adopt such a structured approach but simply listed in relation to each witness a number of criticisms – some, it has to be said, of a rather formulaic nature - without any assessment of their specific relevance. [183]

The Court was also critical of the CA’s approach to the evidence from other experts who weren’t medically qualified:

Weight also had to be given to her (Ms Thullesen) evidence about the impact of trauma on a victim’s ability to recount their experiences coherently and consistently…’ Some at least of the inconsistencies on which the CA relied might quite readily have been explained on that basis…’ The point made by Mibanga is not that the expert evidence and the issue of credibility must be considered in a particular order but that the former must be allowed to feed into the latter.  That did not happen here.  [250]

Importantly, the Court accepted that there were inconsistencies in the MN’s accounts but did not proceed on the basis that they were fatal to MN’s claim. In allowing the Appellants’ appeals the Court made wide-ranging criticisms of the CA decisions that may demonstrate a wider issue with decision making by the CA and could apply to other decisions made by the SSHD, such as refusals of protection and human rights claims. Those criticisms included, but weren’t limited to:

  1. The significance placed on minor discrepancies between the account the MN had given in the asylum process and to the expert was ‘rather troubling inasmuch as it suggests a hyper-critical mindset on the part of the decision-maker where he was positively looking for reasons to discount the evidence of the expert’ [168];
  2. It is dangerous for lay people (without medical qualifications) to speculate about other potential causes of PTSD [181];
  3. The CA’s reasoning ‘smacks of the deployment of a stock answer to her (MN’s) explanation without attempting to see whether it is actually applicable to the specific point’ [191];
  4. “Implausible” is not the same as “impossible” [199];
  5. MN stating an event occurred in June and then later saying it was in August is not of real significance in assessing credibility and ‘is not a particularly significant discrepancy’ [212-213];
  6. A hospital record that did not state the cause of MN’s father’s injury may not be positively probative, but it didn’t undermine her account [213];
  7. It was not appropriate to discount the value of a doctor’s evidence because they had failed to take into account that the tribunal had found IXU had not told the truth on important aspects of her account: ‘the question whether IXU was telling the truth was ultimately for it to decide, and it is not the role of an expert witness to undertake the task of assessing a subject’s account against other accounts or evidence or previous judicial findings’ [308];
  8. It was ‘entirely appropriate’ for Ms Thullesen to express her opinions on the basis of IXU’s history as recounted to her, it was necessary when considering whether IXU’s account was true for the CA to take Ms Thullesen’s opinions into account and it was misleading to suggest that Ms Thullesen had uncritically accepted IXU’s account when it was clear she was alive to the possibility of fabrication and had judged that it was unlikely [310];
  9. Notwithstanding the fact that the CA used the phrase “little value” to describe their view of the experts’ conclusions there was no sign that the CA had considered them at all. The CA did not feed the opinions of the experts into its credibility assessment because it had wrongly decided they were little weight [347];

A further issue arose in the case of IXU i.e. the necessary degree of connection between an ‘act’ and any possible future exploitation. The Court held that whilst IXU’s case may be borderline and required a proper assessment and confirmed that they thought ‘it would be dangerous to substitute a test of “immediacy”. [342-343]

This challenge will mean that the CA (and the SSHD in other roles) will have to carry out a fundamental review of decision making to ensure expert evidence is properly taken into account and change her practice of regularly employing stock answers with little application to the actual case. 

2] The Court used to the term ‘doctor’ to refer to medically qualified expert witnesses including clinical psychologists and also found no reason why evidence from non-medical witnesses should also be relied upon.

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