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Social Welfare Update: Provision of support to trafficking victims following a negative conclusive grounds decision

Friday 26 February 2021

Ronan Toal of Garden Court Chambers represented MN, instructed by Simpson Millar. Ronan also represented IXU, instructed by Wilsons Solicitors LLP.

Stephanie Harrison QCGemma LoughranElla Gunn, all of Garden Court Chambers, represented The AIRE Centre, instructed by Herbert Smith Freehills LLP.

This blog piece was written by Miranda Butler.

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In MN v SSHD [2020] EWCA Civ 1746 the Court of Appeal considered several linked cases brought by victims of trafficking who had received negative Conclusive Grounds decisions. The appellants challenged:

  • The withdrawal of support from victims of trafficking following a negative Conclusive Grounds decision; and
  • The Home Office’s approach to making credibility decisions.

In a lengthy and detailed decision the Court:

  • Held that victims who receive a negative Conclusive Grounds decision are not entitled to the level of support they receive following a reasonable grounds decision; and
  • Gave guidance on the proper approach to making Conclusive Grounds decision, in particular as regards credibility and plausibility issues. 

On the first ground, the appellants argued that once victims of trafficking had received a positive reasonable grounds decision they were entitled to financial support under Chapter III of the European Convention on Action against Trafficking as long as it is needed. The Court rejected this argument principally on the grounds that “the only natural reading” of the relevant provisions was that this support was provided until the identification process is completed. The result, for now, is that individuals who receive negative Conclusive Grounds decisions will continue to lose their trafficking support. 

The Court of Appeal also gave extensive guidance on the correct approach to determining credibility in trafficking cases, especially where there is expert evidence. The Court accepted that “it is clear that a high quality of reasoning is required in a conclusive grounds decision, which engages fully with the case advanced by the putative victim of trafficking” (§242) and strongly endorsed the conclusion of Carnwath LJ in R (YK) v SSHD [2010] EWCA Civ 116 that decisions need to “show by their reasoning that every factor which tells in favour of the applicant has been properly taken into account” (§24). The Court of Appeal held that the Home Office’s decision-making should be “very thorough” (§243) and accepted that “the intensity of review is high” (§244). 

As regards expert evidence, the Court of Appeal held that the decision-maker had to make a decision on credibility on the totality of the evidence before them, viewed holistically. The Court accepted that it was open to a doctor to express an opinion to the effect that their findings are positively supportive of the truthfulness of an applicant's account. However, the weight to be given to any such expression of opinion will depend on the circumstances of the particular case. An expert’s opinion could never be determinative and the decision-maker would have to decide to what extent such an opinion was to be discounted. (§121). Acknowledging that its analysis had possibly been “over-elaborate”, the Court summarised its conclusions on expert evidence as follows: “decision-makers should in each case assess whether and to what extent any particular expert evidence relied on by an applicant supports their case as a matter of rational analysis. Observations in the case-law are useful in drawing attention to likely limitations on the value of particular kinds of evidence, but they should not be treated as laying down rigid rules. If there are qualifications to the value to be given to a particular piece of evidence, that is not a reason for excluding it altogether: if it has some weight it must go into the overall assessment” (§123).

The judgment is available here.

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