Court of Appeal lay down important guidance on the correct approach to assessing credibility of victims of trafficking

In a judgment handed down today, the Court of Appeal overturned decisions of the Home Office that each of two Appellants was not a victim of trafficking on the basis that the Home Office, acting as the designated ‘Competent Authority’ decision-maker 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 claim to be victims of trafficking.

The First Appellant, MN, is an Albanian national who 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.  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 in August 2017 but the Home Office maintained that MN was not a victim of trafficking.  This was challenged by way of judicial review. Farbey J dismissed the claim in the High Court in November 2018. Permission to appeal was granted in January 2020.

The Second Appellant, IXU is a Nigerian national. Her account disclosed several episodes of trafficking, being subject to FGM for the purposes of forced marriage as a child, being subject to child sexual exploitation by a man who also forced her into domestic servitude; and being trafficked to the UK by this man in 2012 for forced prostitution. There were various delays to referring her to the NRM for victim identification. A reasonable grounds decision was eventually made on 6 December 2016 in which the Home Office found that there were reasonable grounds to believe that she was a victim of trafficking.  However, its eventual conclusive grounds decision, dated 12 February 2018, was that she was not. This was challenged by way of judicial review but was dismissed in January 2019 by Mr Philip Mott QC, sitting as a deputy High Court Judge. Permission to appeal was granted in January 2020 and the appeal linked to MN’s.

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 deprecated 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.

Shu Shin Luh represented both Appellants as sole junior in the High Court instructed by Silvia Nicolaou-Garcia of Simpson Millar Solicitors (for MN) and Imogen Townley of Wilson Solicitors LLP (for IXU). She was led by Raza Hussain QC of Matrix Chambers in the Court of Appeal. Ronan Toal of Garden Court Chamber was also part of the legal team at the Court of Appeal. The Aire Centre and Anti-Slavery International intervened in the case.

Shu Shin is a member of Doughty Street’s public law, anti-trafficking and immigration teams.

Access the judgment here