High Court quashes negative Conclusive Grounds decision unlawfully rejecting a trafficking victim’s claim

Thursday 11 November 2021

Emma Fitzsimons of the Garden Court Chambers Public Law Team acted for the Claimant, instructed by Shalini Patel of Duncan Lewis Solicitors.

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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), in which Deputy High Court Judge David Lock QC found the Home Office had unlawfully rejected a trafficking victim’s claim.

The Claimant is a Vietnamese national who was found in a cannabis factory. He was prosecuted and sentenced before the NRM process concluded, and subsequently detained for a lengthy period in immigration detention. This is despite the fact that Home Office policy guidance recognises that many Vietnamese young men are trafficked to and within the UK, including for the purposes of forced criminality and forced labour.

The Claimant is an acutely vulnerable man, who has been diagnosed with significant mental health diagnoses, including complex PTSD. There was also independent scarring evidence to show he had been subject to acts of torture, consistent with his claims to be mistreated by his traffickers. Despite the fact that a substantial body of expert evidence was placed before the decision-maker, it was principally rejected on the basis that the Single Competent Authority did not believe his account, on the basis of minor or peripheral inconsistencies.

The decision is a practical application by the High Court of the guidance on expert evidence in MN and IXU v SSHD [2020] EWCA Civ 1746. In addition, the decision also usefully reminds the Single Competent Authority that relying solely on the personal credibility of a putative victim may lead to a public law error. The Single Competent Authority must ask themselves if a person has been trafficked, and that requires an examination of any objective evidence, independent of the Claimant’s personal account.  

Finally, the decision contains a helpful reminder that lies, or inconsistency, do not necessarily mean that a person has not been trafficked: a person can be found to have lied or been inconsistent, but nonetheless applying the balance of probabilities, still be found to have been a victim. The Single Competent Authority’s own guidance is consistent with the need for a Lucas-style direction when assessing whether an individual has lied. 

See paragraphs [30]-[31] of the judgment:

“An SCA can properly decide that a person's inconsistencies about part of their evidence mean that, in respect of that incident or event, the person's evidence cannot be accepted or even that he is lying. However, it is a huge jump of logic for the SCA to then use that conclusion to decide that the entirety of the person's evidence should be rejected as lies. Making the jump from saying that a person is lying about detail A, B or C, to disbelieving the person on everything he asserts is not a straightforward process. This question was recently considered by the Court of Appeal in Uddin v Secretary of State for the Home Department [2020] 1 WLR 1562. Ryder LJ said as follows at §11:

"I note in that regard the conventional warning which judges give themselves that a person may be untruthful about one matter (in this case his history) without necessarily being untruthful about another (in this case the existence of family life with the foster mother's family), known as a " Lucas direction" (derived in part from the judgment of the Court of Appeal (Criminal Division) in R v Lucas (Ruth) [1981] QB 720 , 723C, per Lord Lane CJ). The classic formulation of the principle is said to be this: if a court concludes that a witness has lied about one matter, it does not follow that he has lied about everything. A witness may lie for many reasons, for example, out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure. That is because a person's motives may be different in respect to different questions. The warning is not to be found in the judgments before this court. This is perhaps a useful opportunity to emphasise that the utility of the self-direction is of general application and not limited to family and criminal cases."

The Guidance provides extended and clear advice to SCA to caution them that victims of trafficking can lie for a number of complex reasons, largely emerging out of the state of powerlessness that they find themselves in. Ryder LJ classified a Lucas direction as being "of general application". In my judgment he was right to do so. It is an essential standard of fairness to be observed by anyone who is having to make a judicial, quasi-judicial or even administrative decisions.”  [emphasis added]

The judgment is available to download here.

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