The High Court has dismissed a judicial review raised by an Albanian national challenging a negative reasonable grounds (first stage) decision in his trafficking claim, finding that his employer did not have the intention to exploit him at the point of recruitment. The case is R (MT) v Secretary of State for the Home Department [2024] EWHC 640 (Admin). The decision focuses on a fairly narrow point of law, namely the “purpose” element of the trafficking definition under Article 4 of the Council of Europe Convention on Action against the Trafficking in Human Being (“ECAT”).

Background

The claimant is an Albanian national who entered the UK in May 2022 and claimed asylum on arrival, which was refused in June 2022 on third country grounds. He was served with removal directions shortly after but was referred into the National Referral Mechanism a few days later by immigration enforcement, to consider whether he was a victim of trafficking. The day after the referral was made, he received a negative reasonable grounds (first stage) decision which was challenged several times through reconsideration requests, with the final negative decision made in September 2022.

In summary, the claimant’s account, which was accepted by the Home Office, was that, while living in Albania, he was recruited to work in a construction site. He worked on the site for five or six months for long hours and never received payment.

By his own account, he continued to work in the hope he would eventually get paid. He was later beaten up by his employer when he asked for money and was subsequently asked by his employer to start selling drugs. The claimant refused to do this and then started receiving threats from his employer which led him to leave Albania.

The Home Office accepted that the claimant’s account met the first two part of the definition of trafficking under ECAT insofar as he had been recruited by his employer (meeting the “action” element) and his employer had been violent against him (meeting the “means” element). The only issue in dispute was, therefore, whether the claimant had been recruited for the purpose of criminal exploitation, namely selling drugs.

The claimant said that his employer recruited him for the purpose of forcing him to sell drugs and the only reason he was able to avoid exploitation was because he fled Albania. The Home Office took the position that the claimant’s employer had not intended to exploit him at the time he recruited him and therefore the purpose element of the definition was not met.

“Purpose” element does not require exploitation having taken place

The court began its analysis by looking at the purpose element of the trafficking definition and referred to the ECAT at [87]:

Under the definition, it is not necessary that someone have been exploited for there to be trafficking in human beings. It is enough that they have been subjected to one of the actions referred to in the definition and by one of the means specified “for the purpose of” exploitation. Trafficking in human beings is consequently present before the victim’s actual exploitation

The court also noted that the same position is accepted by the Home Secretary in the Modern Slavery guidance which notes that the question is the purpose of the action (in this case recruitment), rather than the exploitation having taking place. This essentially means that there will be cases where individuals might have fled before being exploited but can nonetheless be considered survivors of trafficking.

In the claimant’s case, the court accepted that he could still meet the trafficking definition, even although he had not actually been criminally exploited, as long as a nexus between his recruitment by the employer and the intended exploitation could be shown.

Nexus between act and intended exploitation must still be shown

The judge then referred to an earlier case where the Court of Appeal gave some guidance about the required link between the action element of the ECAT definition and the intended exploitation. Essentially it was confirmed that although there is no requirement in law to show immediacy, a lapse of time between the action and the intended exploitation will be a potentially adverse factor in the assessment of whether a link exists at all.

In simpler terms, the court confirmed that an individual needs to be able to show that the initial action by a trafficker, for example recruitment, was carried out with the intention to exploit them. This will obviously be a more difficult task where weeks or months have passed between the initial action and the intended exploitation. 

The court then applied this test to the claimant’s case and rejected his argument that he had been recruited to sell drugs. It found that the relevant action was the initial recruitment by the employer and it rejected the argument that recruitment was a process that had continued throughout his employment.

Looking at the employer’s initial intention, the court found that the claimant had been recruited to work, not to sell drugs. This was on the basis that the employer asked the claimant to sell drugs months after recruiting him but also because the claimant had been free to leave at the end of every working day.

On this basis, the court found that the negative reasonable grounds decision was lawful as the claimant could not show that he had been recruited by his employer for the purpose of criminal exploitation.

Conclusion

This case is a good reminder of the fact that you do not need to show that exploitation has taken place to meet the ECAT definition. Practitioners working in this area might come across cases (albeit in small numbers) where survivors of trafficking manage to flee before being exploited and these cases should still be pursued where there are grounds to show that the trafficking definition is met.

The tricky part will be to show a connection between the action and the intended exploitation, especially where a substantial amount of time passed between them. This does not mean that these cases should not be pursued, especially where survivors are also seeking asylum and their trafficking claim might have a significant impact on their asylum case.