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Asylum is a high hurdle. Can aspirants for UK try the Convention on Human Trafficking instead?

Written by Hannah Noyce, UK Human Rights Blog, 26 June 2015

R (on the application of Hoang Anh Minh) v Secretary of State for the Home Department [2015] EWHC 1725 (Admin)

This case concerned the proper approach to establishing whether there are "reasonable grounds" for believing that a person has been a victim of trafficking under the Council of Europe Convention on Action against Trafficking in Human Beings ("the Trafficking Convention"). It also touched on the scope of the state's positive obligations under Article 4 ECHR (which protects citizens of Council of Europe Countries from subjected to slavery, servitude, or forced or compulsory labour).

Background

The claimant arrived in the UK from Vietnam via Russia, where he claimed he had been forced to work in a factory for several years before being released. On arrival here he claimed asylum, which was refused.

In parallel with asylum proceedings, however, his case was referred to the Home Office's competent authority to determine whether he was entitled to protection and assistance under the Trafficking Convention. The question in this context was different from that in the asylum claim – the competent authority was required to consider whether there were "reasonable grounds" to consider that the Claimant had been a victim of trafficking.

The competent authority gave an emphatic "no" to that question, by way of three decisions (an initial decision and two further decisions which reconsidered the first) which were in effect treated as a single decision for the purposes of the claim. The Claimant challenged those decisions by way of judicial review.

The Trafficking Convention and UK Guidance

The Trafficking Convention is binding on the UK as a matter of international law, but has not been incorporated into domestic law. However, the UK government has announced its intention to comply with the provisions of the Convention and has issued guidance to competent authorities and other immigration officials for the purposes of doing so ("the Guidance"). The Claimant therefore argued that the decisions in this case were unlawful under ordinary principles of judicial review because the competent authority had failed to apply that Guidance. Further, he argued that this amounted to a violation of the state's positive obligation under Article 4 of the ECHR to protect victims of trafficking.

The purposes of the Trafficking Convention are set out in Article 1, which encapsulates the whole of human trafficking; this provision designs a comprehensive framework for the protection and assistance of victims and witnesses of trafficking and aims to ensure effective investigation and prosecution of those responsible. Article 1(2) provides for a specific monitoring mechanism to be followed by all state parties to ensure effective implementation of its provisions.

Article 10(2) provides that

"…Each Party shall ensure that, if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence … has been completed".

Helen Mountfield QC (sitting as a Deputy High Court Judge) noted, at para 45, that this wording suggests a two-stage process. The first stage is the "reasonable grounds" decision. The second, if there are reasonable grounds, is a substantive determination of whether the person has in fact been a victim of trafficking. The person must be permitted to stay in the country for a period of at least 30 days, for reflection and recovery, before that substantive decision is made. The UK Guidance in fact provides for a period of 45 days for the person to recover and take legal advice.

The relevant provisions of the Guidance are set out at para 48 of the judgment. Importantly for our purposes, it provides that:

"The test that should be applied is whether the statement "I suspect but I cannot prove" would be true and whether a reasonable person would be of the opinion that, having regard to the information in the mind of the decision-maker, there were reasonable grounds to believe that the individual concerned had been trafficked".

As Helen Mountfield QC explained at para 68 -69:

This is an objective question: the question is whether the evidence provides grounds upon which a reasonable observer could believe that this person is a trafficking victim, applying the low threshold of suspicion but not proof, and bearing in mind the non-exhaustive list in the Guidance of possible reasons for absence of detail or inconsistency.

The question for the Competent Authority at this stage is not, "is there evidence which a reasonable observer could consider proves that this person is a trafficking victim?"; still less is it, "on what I know now, do I believe that this person is a trafficking victim"?

She went on to note, at paras 74 and following, the very great importance of the "reasonable grounds" decision for a putative victim – a negative decision will remove any entitlement to interim support or to a period of recovery and reflection, obviously crucial for a person who has in fact been trafficked. By contrast, the resources required in order to allow such a person to stay in the country for a short period of 45 days are fairly minimal. The threshold, therefore, is very low.

The Guidance goes on to note that persons who have been trafficked may well be cautious in disclosing the facts of their case, particularly to authority figures; they may be unable to recall concrete dates and facts, at least at first; or they may contradict themselves in later statements. Decision-makers should bear in mind any mitigating factors, and should not focus upon minor or peripheral facts that are not material to the claim. In order to counter any conscious or unconscious reliance on the decision-maker's own beliefs, rather than on objective evidence, the case should be reviewed by a caseworker who was not directly involved in the asylum decision.

The Court's decision

Helen Mountfield QC held, in no uncertain terms, that the competent authority had completely failed to follow the guidance in the Claimant's case. She found that that the decision was Wednesbury unreasonable – enough by itself to lead her to quash it – because the decision-maker had failed to take into account relevant evidence of the prevalence of trafficking from Vietnam to Russia and/or to the UK via Russia. Applying the appropriate "anxious scrutiny" to the decision in the context of Article 4 ECHR, this failure alone also meant that she could not be satisfied that every factor which might tell in favour of the Claimant had been properly taken into account, and it thus amounted to a breach of Article 4.

This failing was indicative of a wider problem in the approach taken to fact-finding taken by the decision-maker in this case. The authority had failed to apply the guidance on assessing credibility, having focussed on minor omissions or inconsistencies in the Claimant's account as justification for dismissing that entire account out of hand. Ultimately, the decision-maker had simply applied the wrong test. He or she had asked whether the facts alleged by the Claimant were made out – essentially on the balance of probabilities – rather than applying the much lower threshold test of whether there were reasonable grounds for suspecting that the Claimant was a victim of trafficking. The decision letters had identified the correct test, but in substance they failed to apply it.

The decisions were accordingly quashed. It followed that there had been a breach of the positive obligation under Article 4 of the ECHR, and the court also granted a declaration to that effect.

This decision should serve as a reminder that, notwithstanding the current climate of hostility to migrants and asylum seekers alike, the UK remains bound by its international obligations to offer at the very least a basic level of protection and assistance to those most in need. Here's hoping that reminder doesn't go unheeded.

About the author: Hannah Noyce is a barrister as 1 Crown Office Row and aims to develop a broad practice, in particular in clinical negligence, professional discipline, inquiries, tax, public law and human rights.
This post by Hannah Noyce first appeared on the UK Human Rights Blog by 1 Crown Office Row chambers and is reproduced here with permission and thanks.

Any views expressed are those of the author and do not necessarily represent the views of EIN