In R (SM) v The Secretary of State for the Home Department [2024] EWHC 1683 (Admin), the High Court found a reasonable grounds (first stage) trafficking decision to be unlawful as it failed to consider all the relevant evidence and context in the claimant’s case. This is an interesting and useful decision outlining the competent authorities’ duties at the initial stage of the national referral mechanism.

The national referral mechanism is the process through which people are identified as victims of trafficking, and the competent authorities (part of the Home Office) are the decision making bodies. There are two stages to the process, the first is the reasonable grounds decision and the second is called the conclusive grounds decision.

Background

SM is an Albanian national who entered the UK aged 17 in 2021, using a false Czech passport. On arrival to the UK, he was detained and claimed asylum and disclosed that he was in debt and was scared of returning to Albania. Later in 2021, SM was referred into the national referral mechanism.

The single competent authority later issued a negative reasonable grounds decision. In the decision, the claimant’s account was accepted as credible. It was also accepted that the “action” element of the trafficking definition as set out in Article 4 of ECAT (Council of Europe Convention on Action Against Trafficking) was met and the “means” element was not required to be met as SM was a child at the time of the alleged exploitation. However, it was not accepted that the “purpose” element of the definition was met as SM had travelled to the UK of his volition and there was no evidence of exploitation or intended exploitation.  

SM later provided more details on his background as part of his asylum claim. He disclosed he had accepted help from a man in Albania who had agreed to provide him with documents to come to the UK for £15,000.

SM had promised to pay this money back and the man had threatened him that, if he didn’t, he would find him and kill him and his family. Once SM obtained the passport, he fled Albania as he could not afford to pay the debt and was worried about his safety.

The claimant also disclosed that his family had received several threats by the man who helped him after he arrived in the UK. He also stated that he was worried that, if returned to Albania, he would be forced to work to repay his debt.

In March 2023, SM’s legal representatives submitted a reconsideration request in relation to the reasonable grounds decision. It was argued that, in light of SM’s account, it was plausible that the man who gave him the false passport was part of a trafficking gang and that his intention was to exploit SM after forcing him into debt.

SM’s representatives also relied on objective evidence on the prevalence of trafficking of young people in Albania and on the opinion (albeit not a full report) of a trafficking expert who agreed that it was plausible that the man who helped SM was indeed a trafficker who had sold the passport to SM with a view to force him into debt and exploit him.

The reconsideration request was rejected by the competent authority, re-emphasising the reasoning set out in the initial decision and adding that SM’s account was consistent with him having been smuggled but that there was no evidence of exploitation nor intended exploitation.

Threshold and quality of reasoning in reasonable grounds decisions

The court considered the standard of reasoning required in a reasonable grounds decision. Summarising a number of earlier cases, it noted that reasonable grounds decisions require a high quality of reasoning, considering the significant implication of a negative decision both in relation to an individual’s support and recovery but also in terms of their ability to remain in the UK.

The court also noted that reasonable grounds decision need to carefully apply the modern slavery statutory guidance and that all evidence and information available need to be considered prior to a decision being made, including expert evidence which ought to be given weight.

The court also considered the test for a reasonable grounds decision set out in R (Minh) v Secretary of State for the Home Department [2015] EWHC 1725 (Admin) and noted that at this initial stage, the competent authority only needs to be satisfied that there is a suspicion that the individual might be a victim of trafficking. Proof of exploitation is not required. The court reiterated that in cases where some factors point to a positive suspicion and some factors points against this, the decision must be in favour of the applicant.

The court also reminded itself of the distinction between smuggling and trafficking with reference to the modern slavery statutory guidance and the case of R (TVN) v Secretary of State for the Home Department [2021] EWHC 3019 (Admin) which noted that “a combination of debt bondage plus force, coercion or menaces is highly likely to result in the individual being a victim of trafficking”. 

The court’s decision

At the hearing, it was argued on behalf of the Home Secretary that this was a clear case where there was no evidence of exploitation nor of intended exploitation. The Home Secretary’s position was that SM had entered into a transaction with a smuggler which had concluded once SM reached the UK.

The claimant’s lawyers argued that it was plausible that the man who sold SM the passport had the intention to exploit him and that is why he forced him into a debt that he would never be able to repay.  It was also argued that the respondent failed to consider of all relevant evidence, including objective evidence and the expert’s opinion.

Looking at the initial decision, the court noted that the competent authority had failed to consider the evidence SM had given during his asylum interview, where SM specifically stated he feared he would be exploited and made to repay the debt if returned to Albania. The court emphasised that the decision maker failed to consider how SM was ever going to be able to repay his debt, if not by way of exploitation.

The court also noted that the decision maker had failed to consider the objective evidence on Albania, which showed an existing pattern of young people being forced into debt and later exploited. The expert’s opinion was also not given any weight, despite this pointing to the fact that it was plausible that the man who sold the passport had the intention to exploit SM. For these reasons, it was found that the decision had failed to put SM’s claim into the wider context.

Due to these material errors, the court found the decision to be irrational and inconsistent with the duties set out in the guidance.

Conclusion

In the context of a significant increase in negative trafficking decisions this is a useful judgment to look at, as it neatly summarises the competent authorities’ duties in making these decisions.

It is also a reminder that there is no requirement to show that exploitation has already taken place in order to meet the trafficking definition (you can read more about this here). The judgment also makes some useful points about the importance of objective evidence and expert evidence in these cases and how applicants may be able to rely on this and on the broader context to argue that there is a least a suspicion that there might have been a victim of trafficking.