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Balance of probabilities is lawful standard of proof in trafficking decisions


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The High Court has rejected an attempt to lower the standard of proof for accepting that a person is the victim of human trafficking. Shu Shin Luh of Garden Court Chambers, fresh off a big win for trafficking victims last month, argued that someone seeking a “conclusive grounds decisions” that they are a victim of trafficking should not have to prove that on the balance of probabilities. Instead “the standard at all stages ought to be ‘credible suspicion’ which she equated with ‘reasonable grounds for suspicion'”. The case is R (MN) v Secretary of State for the Home Department [2018] EWHC 3268 (QB).

The argument was based on the UK’s obligations under the Council of Europe anti-trafficking convention and Article 4 of the European Convention on Human Rights. Counsel also sought to compare trafficking decisions with the determination of an asylum claim:

trafficking claims are, in their nature, claims for protection like claims for refugee status under the Refugee Convention 1951… the assessment of whether a person is a victim of trafficking is a matter of evaluation like the process of refugee status determination. The question whether someone has been trafficked is not like civil litigation and does not involve a choice between two conflicting accounts but an evaluation of the claimant’s account only, which may be incomplete because of the inherent difficulties of gathering evidence and the inherent stress suffered by victims of trafficking.

Mrs Justice Farbey, however, found that decision-making on the balance of probabilities was “appropriate”, “simple to state” and “well-recognised in domestic law”. It also reflects the fact that there is an initial “reasonable grounds decision” that already uses a lower standard of proof, before the conclusive grounds decision: “there would be little or no purpose in having a two-stage process of identification unless the first stage was distinct from the second stage”.

Farbey J also said that

The lower standard of proof in asylum cases is not a matter of policy but of law. It arises from the proper interpretation of the Refugee Convention… ECAT does not have the same objectives as either the Refugee Convention.

On the plus side, the judge did not endorse a “radical” attempt by counsel for the Home Office to argue that MS (Pakistan) [2018] EWCA Civ 594 (see Tribunal slapped down on power to review trafficking decisions) meant that when the Home Office “has determined certain factual matters in the trafficking context, it is not open to the Tribunal to reconsider those same matters in the context of an asylum appeal”.

The AIRE Centre intervened but couldn’t sway the result.

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CJ McKinney

CJ McKinney is a specialist on immigration law and policy. Formerly the editor of Free Movement, you will find a lot of articles by CJ here on this website! Twitter: @mckinneytweets.