Refugee succeeds in High Court challenge to negative trafficking decision

A Sudanese refugee has succeeded in challenging a negative trafficking decision after he was wrongly criticised for a lack of detail and supporting evidence for his claim. The case is R (Alnoor) v Secretary of State for the Home Department [2025] EWHC 922 (Admin).

Background

The claimant is a Sudanese national who was exploited, beaten and tortured for three months in Libya from June to September 2021 during his journey to the UK. He arrived in the UK on 13 November 2022 via the Channel and he was detained and claimed asylum on arrival.

He was released from detention on 24 November 2022. On 18 April 2023 he was issued with a notice of intent that his claim would be treated as inadmissible. The claimant was re-detained on 2 May 2024 and served with a second notice of intent.

He was referred into the National Referral Mechanism on 16 May 2024 to consider whether he was a victim of trafficking. The detention officer and NRM responder noted the following on the referral form:

I believe [the Claimant] to have accepted to work on the farm and get paid and as these farming works are normally season. [He] may not have been forced into working on the farm. [He] had to move on in search of another opportunity when the 3 months farming contract expired. [He] may have taken up farming work to gather some money to pay for his journey to the UK. I think story, which falls within the known pattern, was fabricated.

The officer also expressed disbelief because the account of exploitation was only being mentioned now, despite late disclosure being a common factor in these claims.

On 20 May 2024 a negative reasonable grounds decision was made (the first stage in the trafficking identification process). The claimant was released on bail on 1 June 2024 and his claim was then substantively considered in the UK and he was recognised as a refugee on 9 August 2024.   On 19 August 2024 the claimant sought judicial review of the negative trafficking decision.

The judicial review

The parties agreed that the standard for the reasonableness review was that of “anxious scrutiny”. The judge, Fordham J then set out what this means in detail at [28], including:

iv) The reviewing court may find in anxious scrutiny a narrowing of the primary decision-maker’s latitude, whether as to what is within the range of reasonable outcomes, or as to what is reasonably sufficient enquiry, or as to what is legally relevant. There may be an adjustment for the benevolence with which a decision letter is to be read. There may be a tempering of the onus, which sees the claimant in substance getting the benefit of the doubt. In all this, the governing principle remains reasonableness.

v) This practical consequence of this closer scrutiny is illustrated by the identification of a “need for decisions to show by their reasoning that every factor which tells in favour of the applicant has been properly taken into account”. That was endorsed and applied to NRM decisions in MN at §242 and fn.32. It is derived from the asylum case of R (YH) v SSHD [2010] EWCA Civ 116 [2010] 4 All ER 448 per Carnwath LJ at §24. The language is “every factor” not “every obviously reasonable factor”; and “properly taken into account” not “taken into account”. It was “important in particular to establish” (MN §244).

It was argued on behalf of the Home Secretary that the claim was academic because of the claimant’s grant of asylum which meant that there was no risk of re-trafficking and that the claimant’s lawyers had not identified a “specific concrete “support” benefit” which would result from a positive identification as a victim of trafficking. The judge did not agree and it was accepted on behalf of the Home Secretary that there could be a support benefit to the claimant, following a needs based assessment, if he was positively identified as a victim of trafficking.

The decision maker found that the claimant’s account was consistent, identified that Libya was a known risk for trafficking, and accepted that the three elements of human trafficking were present in the case, namely action, means and purpose. Despite this it was concluded that the reasonable grounds test was not satisfied. The reasons for this were that the level of detail was considered to be limited, there was an absence of supporting evidence, the delay in the claim and the information received from the referring officer, which did not identify any indicators of modern slavery.

The judge described the decision as having been made with “care and conscientiousness” however he identified four areas of difficulty with the reasons given for the negative decision. On the point that there were no modern slavery indicators identified by the First Responder, the judge said that this was not supported by the evidence and that “there are on the face of the “account” recorded within Mr Anson’s referral form, read with the Statutory Guidance, a host of “indicators” of modern slavery “within” that “account””. Further, the decision maker had herself recognised that the three elements of the trafficking definition had been met in the claimant’s case.

The criticism by the decision maker about the level of detail provided by the claimant was not explained. The decision simply said that it was reasonable to expect further detail, without explaining what was missing and could reasonably be expected to have been provided.

The decision maker had also cited a lack of supporting evidence as one of the reasons for the refusal. Fordham J said “I have been unable to see how any supporting evidence could reasonably be expected and why that was not straightforwardly accepted in favour of the Claimant” and the failure to do this was the third flaw in the decision.

The fourth flaw related to the criticism made of the claimant regarding the timing of his trafficking claim. This had been raised by the First Responder as indicating that the claimant was dishonest, however the judge said that “The fact is that the Claimant was in detention (2 May 2024) and so had access to a lawyer. Instructions were taken.”

The reasonable grounds decision was quashed and will need to be re-made.

Conclusion

This is a good example of how much more difficult these claims are to succeed in when a person is detained. The first hurdle is that the First Responder will be the Home Office, and the level of disbelief displayed by the person who interviewed the claimant in this case is certainly not out of the ordinary. The ability to access and provide supporting evidence is very limited when a person is detained. Another issue is the almost inevitable criticism about the delay in raising the claim, even though as correctly identified by the judge here, the ability to access legal advice is of key importance.

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