24 Feb Trafficking victim wins Judicial Review of Reasonable Grounds trafficking decision
At the High Court Monday 22nd February 2016, Mr Justice Dove read out his judgment in the case of R(FX) v Secretary of State for Home Department and concluded that the Home Office unlawfully decided that our client was not a victim of trafficking.
Our client, whose name has been anonymised to FX in order to protect her identity, was brought from Ethiopia to the UK, via the Netherlands, Italy and France. On the way she suffered horrendous abuse and rape, both in Italy, where she was locked in a room and raped and in the jungle in Calais, where she was similarly abused and had to remain for 6 months. She continues to suffer from trauma as a result of her experiences.
However, the Home Office, whose role it is to make decisions on trafficking , decided that there were not reasonable grounds to believe that she was a victim of trafficking. The decision maker noted that the Claimant was “harboured” in Italy, but did not ask whether the Claimant was harboured in Calais or if either action of harbouring the Claimant was by a specified means and for the purpose of exploitation.
A Judicial Review claim was lodged and Mr Justice Dove, in an oral judgment which has yet to be transcribed, decided that:
The Defendant’s guidance and the decision under challenge characterised the test at the reasonable grounds stage as “I suspect but cannot prove”. This was an unhelpful gloss on the wording of the Anti-Trafficking Convention. The issue was simple – on the available material, the Claimant’s account and other material, were there reasonable grounds to believe that she was a victim of trafficking? The guidance unhelpfully suggests that individuals need to prove their case in some way. They do not. All that needs to be shown is reasonable grounds for belief.
However, when taking decisions, care needs to be taken to see if any aspect of the account engages the definition of trafficking. On the first aspect of ground 1, the Claimant’s submission is correct: the purpose was not examined and the reasons provided were inadequate and flawed.
In relation to the third movement (movement of Claimant from Netherlands to France) consideration was given to whether the Claimant was transported, but not whether she was harboured by a relevant means for a relevant purpose. The Decision maker failed to ask or makes some inquiry as to why the Claimant remained in Calais. That was a question which ought to have been addressed by the Defendant. It was simply not engaged with at all. The decision-maker failed to address all aspects of the account and therefore all relevant matters. Furthermore, even if the Defendant is right that harbouring could not arise, this is not expressed in the reasons, which are inadequate.
No explanation was given as to why the policy was not followed. There was no further contact with the first responder or other agencies when it was clear that there would likely be an adverse decision. It was contended by the Defendant that the guidance only applies when adverse credibility findings are made. The Judge did not accept that this is what the Guidance says. Further, it is said by the Defendant that there was nothing to be investigated so the Art 4 investigative duty did not arise. First, the guidance advises that where it appears that the reasonable grounds decision will be negative, the Defendant should contact various parties and give them the opportunity to provide further evidence.
While it would be wrong to approach this with hindsight, it can be noted that significant new material did emerge in relation to why the Claimant did not leave the Jungle and in relation to her mental wellbeing. Second, the decision is not indicative of there being nothing to investigate. There was reference to the purpose of the movement “could not be verified”. This indicates that the decision-maker considered the matter unproven or requiring further information. It demonstrates the role further inquiry could have played. Therefore there was a failure to apply the policy and no reasons can be inferred for the failure to apply it.