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Alleged trafficking victim’s claims too weak for High Court

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On Free Movement we do our best to bring you analysis, or at the very least a quick heads up, on every significant bit of case law on immigration and asylum. We don’t always get around to everything right away, particularly when the case is a first instance decision — in which spirit here’s an unsuccessful judicial review from last month that might be of interest to practitioners working on trafficking case.

R (EL) v Secretary of State for the Home Department [2018] EWHC 968 (Admin) was a challenge to a negative conclusive grounds decision. That essentially translates (although see our trafficking¬†training course for chapter and verse on this) as a official and final determination that someone is not a victim of trafficking¬†and so not entitled to the government support on offer to victims. In this case, EL had been granted a positive reasonable grounds decision — that is, the provisional view was that she was a victim — but was rejected at the conclusive grounds stage on the basis that her story didn’t check out.

The case is quite fact-specific. To give some flavour of the facts: EL is an Albanian woman who claimed to have been trafficked by an older man as a teenager, having previously been in both consensual and non-consensual sexual relationships with this man. After working as a prostitute in France, she and her infant son were smuggled into the UK by a sympathetic client. EL applied for asylum but was refused, “no doubt, in large part, because of the negative [conclusive grounds] decision letter” that she had received around a year earlier. Eleven distinct elements of her story that were found to be dubious are set out at paragraph 20 of the judgment.

EL challenged the negative conclusive decision on the basis that:

i) the defendant’s assessment of the claimant’s credibility is not lawful given the approach to assessing credibility as set out in the Guidance [this guidance] and given the information provided by the claimant;

ii) the defendant’s decision is irrational as it concludes that the information from Hestia [an organisation providing support to the claimant] does not provide any mitigating reasons in terms of the claimant’s credibility.

The challenge failed. Judge Evans-Gordon, sitting as a judge of the High Court, concluded that

the decision maker correctly identified the task and set out the relevant principles in the decision letter. The decision maker also correctly set out the Guidance in relation to credibility at the outset of her decision. She plainly had in mind the fact that some of the events allegedly occurred during the claimant’s childhood as she recognised that the ‘means’ by which the claimant was said to be a victim of trafficking was irrelevant or inapplicable. The reality is that the decision maker simply didn’t believe anything the claimant said to her.

Likewise, the information from the support organisation “was expressly referred to by the decision maker in the decision letter” and the conclusion of the decision-maker “clearly open to her on the material before her”.

There is, it appears, only so much that can be done for victims or alleged victims of trafficking when their account is riddled with “inconsistencies and implausibility”.

 

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CJ McKinney

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.

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