KM, R (on the application of ) v Secretary of State for the Home Department
[2024] EWHC 2870 (Admin)
SM, R (on the application of) v The Secretary of State for the Home Department
1 July 2024
[2024] EWHC 1683 (Admin)
High Court
A young man from Albania got a fake passport to come to the UK and said he owed a lot of money and feared for his safety. The government said he wasn't trafficked, but a judge disagreed. The judge said the government didn't look at all the evidence properly, including the man's fear and expert advice. The case will be looked at again.
Key Facts
- •The Claimant, an Albanian national, obtained a false passport and traveled to the UK, stating he was in debt.
- •He was referred to the National Referral Mechanism (NRM) to determine if he was a victim of trafficking.
- •The Single Competent Authority (SCA) initially issued a negative Reasonable Grounds Decision, later reconsidered.
- •The Claimant's subsequent witness statement and asylum interview provided details of threats and debt related to the passport.
- •The SCA's reconsidered decision remained negative, prompting a Judicial Review.
- •The SCA's decision did not fully consider the Claimant's fear of exploitation, expert opinion, or relevant contextual evidence.
Legal Principles
Anxious scrutiny applies to decisions concerning victims of trafficking.
R(HAM) v SSHD [2015] EWHC 1725 (Admin), R(FM) v SSHD [2015] EWHC 844 (Admin), R (TVN) v. SSHD [2021] EWHC 3019 (Admin), R(MN) v Home Secretary (CA) [2021] 1WLR 1956
High-quality reasoning and consideration of all relevant factors are required in Reasonable Grounds Decisions.
Guidance paragraphs 14.49-14.56, MN at [243]
The Guidance, while not legally binding, is a formal statement of government policy and failure to comply may be challenged.
MS (Pakistan) [2020] 1 WLR 1373
In assessing 'purpose of exploitation,' the court must apply ordinary language and common sense, considering whether exploitation has occurred.
MN at [342], Guidance paragraphs 2.22-2.24
Smuggling and trafficking can overlap, particularly with debt bondage and coercion, especially in cases involving children.
Guidance paragraphs 2.55-2.62, R(Y) v Secretary of State for the Home Department [2012] EWHC 1075, TVN at [13]
Expert reports are not determinative but should be considered alongside other evidence.
Guidance paragraphs 14.28-14.33
The Reasonable Grounds test is whether 'I suspect but cannot prove' the person is a victim of modern slavery.
Guidance paragraphs 14.49-14.53
Generic evidence of vulnerability to trafficking can be relevant but its weight depends on the strength of the association and reliability of the evidence.
TDT (Vietnam)) v Secretary of State for the Home Department [2018] 1 WLR 4922
Outcomes
The SCA's Decision was quashed and remitted for reconsideration.
The SCA's Decision failed to consider all relevant factors, including the Claimant's fear of exploitation, expert opinion, and contextual evidence, thereby irrationally applying the Guidance and failing to meet the standard of anxious scrutiny.