Court Of Appeal Lays Down Detailed Guidance For Government Assessment Of Trafficking Victims’ Evidence

Silvia Nicolaou Garcia
Author:
Silvia Nicolaou Garcia
Public Law Senior Associate Solicitor
Date:
21/12/2020

In a judgment handed down today (MN & IXU v Secretary of State for the Home Department [2020] EWCA 1746), the Court of Appeal overturned decisions of the Home Office that each of the two Appellants was not a victim of trafficking on the basis that the Home Office adopted an unlawful approach to assessing the credibility of each Appellant’s credibility and considering the medical and other expert evidence in support of their claims to be victims of trafficking.

The case was brought on behalf of two female victims of trafficking. MN, an Albanian national who arrived in the UK in 2013 having fled Italy, where she had been forced to work as a prostitute at a brothel and was sexually exploited, was represented by Silvia Nicolaou Garcia of Simpson Millar.

She says the judgement ‘provides some much-needed guidance on the correct approach to medical and other expert evidence in assessing whether there are conclusive grounds to conclude that a person is a victim of trafficking’.

The judgement has brought important clarity to the law on victim identification. Without proper identification, individuals who have suffered unimaginable abuse and exploitation do not get the help and support they need to rebuild their lives and are left at risk of further abuse.

MN came to the UK in February 2013. She gave an account to the Home Office which contained numerous indicators that she was a victim of trafficking, including that she had been forced to work as a prostitute in Italy. She was referred to the National Referral Mechanism (‘NRM’) for victim identification and protection. The Home Office made a reasonable grounds decision in her favour on 21 March 2013, but later concluded she was not a victim that same year. This was reconsidered on 7 August 2017. The Home Office maintained that MN was not a victim of trafficking. 

This was challenged by way of judicial review in the High Court. Farbey J dismissed the claim in the High Court on 29 November 2018. Permission to appeal was granted on 31 January 2020.  The Appellants appealed on three grounds: (1) that the standard of proof for ‘Conclusive Grounds’ decision was unlawfully set at the balance of probabilities in breach of Article 4 ECHR; (2) that the Home Office erred in its approach to considering medical and other expert evidence in support of the Appellants’ claims to be victims of trafficking; (3) that the Home Office took the wrong approach to assessing their credibility.

The Court of Appeal carried out a detailed review of the existing jurisprudence on the relevance of and weight to be afforded to medical and other expert evidence and laid down detailed guidance on the correct approach (paras 121-123 of the Judgment), finding the Home Office’s summary rejection of the careful expert evidence submitted on behalf of the Appellants as formulaic and lacking in analysis of their specific relevance.

On credibility, the Court of Appeal criticised the Home Office guidance for treating known difficulties that trafficked victims have in giving their account (such as impact of trauma, mistrust of authorities and feelings of shame) as ‘mitigating circumstances’, as such an approach wrongly directs decision-makers to first identify defects in the victim’s account and then considers whether they can be excused for the defects. The Court of Appeal found this to be over-mechanistic and not reflective of the real nature of the victim identification process.

Although the Court of Appeal dismissed the Appellants’ challenge to the standard of proof for ‘Conclusive Grounds’ decisions, its guidance on the approach to medical and other expert evidence and to victim credibility has brought important clarity to the law on victim identification.

The Appellants were represented by Raza Husain QC of Matrix Chambers, Shu Shin Luh of Doughty Street Chambers and Ronan Toal of Garden Court Chambers. The AIRE Centre and Anti-Slavery International intervened in the case. IXU was represented by Imogen Townley of Wilson Solicitors LLP.

The judgment is available here: https://www.bailii.org/ew/cases/EWCA/Civ/2020/1746.html

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