Lawyers representing an Albanian woman suffering from appalling sexual exploitation have secured improvements in the system for reconsidering whether someone is a victim of human trafficking. Mr Justice Kerr found that the policy, which required officials to ignore new evidence if it didn’t come from approved sources, was wildly unlawful and an “abdication of the state’s responsibility” to identify and support victims. The case is R (DS) v Secretary of State for the Home Department [2019] EWHC 3046 (Admin).

The reconsideration policy has already been changed, marking another victory in the trafficking arena for Shu Shin Luh of Garden Court Chambers. Her instructing solicitor, Frances Lipman, says that the result means that “many more victims and potential victims of trafficking will be able to secure a review of their decision from the Home Office, regardless of who makes the request”.

Decisions on human trafficking

Victims of human trafficking have certain rights and protections — if they can prove it. Only certain organisations can refer someone to the official process for deciding whether someone is a trafficking victim, which is called the National Referral Mechanism. These organisations are known as “first responders”.

The list of first responders is found in Home Office guidance. The list includes police forces, councils, NHS trusts, charities, the Home Office itself and a few other government bodies. There are also approved “support providers” contracted to help victims.

The decision on whether someone is a trafficking victim is taken by a team within the Home Office known as the Single Competent Authority. This is split into two stages: the initial filtering process of whether there are “reasonable grounds” to suspect that someone is a victim and then, if so, a second confirmatory decision on whether there are “conclusive grounds”.

The reconsideration process

This case was about trying to get the Home Office, in its guise as the Single Competent Authority, to reconsider its reasonable or conclusive grounds decisions. There is no formal appeal process; instead, first responders or support providers can “submit additional evidence, or… raise specific concerns that the decision is not in line with published guidance”.

This is an “informal arrangement” that explicitly excludes lawyers. The only legal remedy for getting a reconsideration is judicial review. Ms Lipman gave evidence that she had issued 27 judicial reviews in the 40 trafficking cases where there had been a negative decision, with the Home Office agreeing to reconsider “the vast majority”. As the High Court noted, the Home Office will only entertain reconsideration requests under threat of litigation.

DS’s case

DS was an Albanian woman who had suffered an appalling litany of rape and abuse. The Home Office twice issued conclusive grounds decisions that she was not a bona fide victim, essentially because there was a wrinkle in her story to do with her passport being used at a time when DS said she no longer had it.

Enter Deighton Pierce Glynn Solicitors. They instructed an expert who wrote a report pointing out that it is “quite easy and not uncommon for people to pass unnoticed in and out of Albania, or to do so using someone else’s passport”. But the Home Office refused to reconsider, citing the system where only first responders or support organisations involved in the case can make a reconsideration request.

Legal action commenced. The Home Office essayed a quick reverse ferret, recognising DS as a victim with a positive conclusive grounds decision. It then ducked and dived to try to avoid a hearing on the lawfulness of the reconsideration process.

The High Court judgment

Kerr J ruled that it was not good enough to argue that requests for reconsideration could simply be channeled through first responders or support organisations. They were fully entitled to “simply ignore the approach or tell the person to go away, without considering the case… The policy permits such an approach to be ignored without considering whether the case for reconsideration is good or bad”.

Kerr J then found that:

67. The NRM process plainly and correctly includes a discretionary power to reopen negative decisions. The discretion must be exercised in accordance with the duty to identify victims. I accept Ms Luh’s submissions on the nature of that duty: it must be performed of the state’s own motion; it is a continuing duty; and if there has been a prior negative decision, relevant evidence casting doubt on the correctness of that decision must not be disregarded.

68. To hold otherwise would be to dilute the content of the duty and water down the protection afforded to victims of trafficking by ECAT, the Anti-Trafficking Directive and article 4 of the ECHR…

The reconsideration policy, Kerr J found was “rigid and does not admit of exceptions”, with the identity of the person requesting reconsideration determinative of whether the request is considered or ignored. It was therefore “an unlawful fetter on the discretion to reopen negative decisions”.

The High Court therefore declared the policy unlawful. Garden Court has published the order and the Home Office has issued an immediate amendment to the reconsideration policy. That should mean that if future victims get help from someone other than a first responder or support organisation to challenge a negative trafficking decision, their request will no longer be ignored.