NS, R (on the application of) v Secretary of State for the Home Department

By Order of Mr Justice Morris dated 25^th November 2017, pursuant to CPR 39.2, the

The Claimant is an Indonesian national. She alleges that she is a victim of human trafficking and that she was a child at the date of the trafficking. She challenges the

At the heart of the case is a dispute about the Claimant’s age. This dispute is central to the CG Decision as the test for the identification of a child victim of trafficking differs to that applied to an adult.

The Claimant is an Indonesian national. Her evidence, disputed by the Defendant, is that she was born on 22^nd September 1990. She was born in the village of Serang Banten on the island of Merak Anyer. She states that her father died when she was 11 years old. She attended school from the age of six but left at about 13, at which point she went to Jakarta to work and to help to support her family.

The Claimant alleges that when she was about 14 years of age [circa 2004/05], an agency came to her village seeking to recruit women to work abroad as domestic servants. The Claimant states that she wanted work and advised the agency representative(s) of her age; she was advised that she would need a passport which showed that she was 18 years old. Her case is that she was assisted by the agency who procured a legitimate Indonesian passport with a false date of birth to enable her to secure work.

On 25^th April 2006, the Claimant was issued with an Indonesian passport with a date of birth of 22^nd September 1981, giving her an age of 24 as opposed to 15, which she now states was her true age [C/179].

The Claimant travelled to Saudi Arabia, where she worked for a family for almost two years. She says that she was required to work seven days a week, working very long hours with breaks but subject to verbal abuse. Notwithstanding those demands and conditions, on her return to Indonesia she accepted an offer of further work from the same agency, this time for a family in Qatar.

In late 2007, the Claimant started work for the Al-Thani family in Qatar. She states she was treated badly but not as badly as she had been treated in Saudi Arabia. In July 2008, the family travelled to the UK with the Claimant accompanying them on a domestic worker visa. The Claimant states that she was treated very badly, that she was not provided with any pay and she was not provided with sufficient food. She escaped from the family while she was in London and sought help from an Indonesian woman “she met in the park one day”, who put her in touch with Kalayaan, the charity which assisted her at that time and continues to assist her in these proceedings.

The Claimant reported her treatment to the police in 2008. No action was taken. She lost touch with Kalayaan and the police. She supported herself through domestic work and without recourse to public funds. She lived with an Indonesian woman for a period; she started a relationship and lived with a partner for approximately seven months; she then lived with a friend and later in different places in London.

In August 2015, the Claimant started to suffer from back pain. She did not have a GP.

In May 2016, the Claimant underwent major spinal surgery. She was discharged but subsequently admitted with post-operative infection. She was finally discharged in September 2016.

On 24^th June 2016, the Claimant came into contact with Kalayaan again. She was identified as a potential victim of trafficking and referred by Kalayaan [acting as “First Responder”] to the National Referral Mechanism. The referral form appears at [B138/151] and states that the Claimant was a minor and described what had happened to her.

On 18^th July 2016, the Defendant’s Competent Authority made a positive “Reasonable

On 28^th November 2016, the Claimant’s solicitors made detailed submissions and provided several medical reports to the Competent Authority in support of her claim to be a victim of trafficking and for a period of leave to remain due to her need for complex medical treatment.

On 19^th December 2016, police officers carried out an ABE interview in the light of the

On 9^th January 2017, the Medaille Trust, a trafficking support provider, provided updated medical information.

On 8^th February 2017, the Competent Authority made a negative Conclusive Grounds

On 10^th April 2017, Kalayaan sought reconsideration of that decision and provided additional evidence in support, including the Claimant’s school diploma obtained from a relative in Indonesia [B/30-68].

On 12^th April 2017, the Claimant received a copy of her passport and domestic worker visa from the Home Office.

On 15^th May 2017, Kalayaan submitted further documentation including the Claimant’s original school certificate [which is in addition to the diploma] [B30-B39].

On 12^th July 2017, the Competent Authority made the CG Decision which is the subject of these proceedings. It withdrew its earlier decision of 8^th February 2017. Once again it made a negative decision that the Claimant was not a victim of trafficking.

A limited number of contemporaneous documents were available to the decision maker (Footnote: ¹):

There has been no suggestion that the school certificate or diploma are forged or false documents. The issue was and is whether they relate to the Claimant.

The CG Decision refers to and considers the passport and the school certificate; it does not refer to the diploma at all; it does not refer to or consider the information provided in the visa applications.

The Claimant’s solicitors sent a pre-action protocol letter on 19^th September 2017. The Defendant responded on 3^rd October 2017; she refused to reconsider the CG Decision.

On 24^th November 2017, the Claimant was granted permission to serve Amended

On 27^th April 2018, Richard Clayton QC, sitting as a Deputy High Court Judge, granted permission on all grounds on the papers.

On 5^th June 2018, the Defendant served Detailed Grounds of Defence.

On 13^th June 2018, Richard Clayton QC adjourned the substantive hearing listed for

The CG Decision appears at various places within the bundle; I will focus my attention on the version at [A187-206]. The decision maker stated, “For the reasons set out below, it is considered that you are not a credible witness and therefore, no weight is attached to your evidence.” [A196].

The documentation submitted by the Claimant/on the Claimant’s behalf was considered. The school certificate was specifically considered, with the decision maker concluding, “… it is noted that the name of the person listed on the certificate is simply ‘N******’; there is no family name. When taking this into account it is considered the document fails to confirm your claim that your date of birth is 22 September 1990 as it cannot be confirmed that the document is actually yours. The photograph on the document has been taken into consideration, however, it is noted that the photograph would have been taken on or prior to 28 June 2004 which is over 13 years ago and therefore cannot be relied upon as a sole basis to confirming this document as evidence of your identity and age. As such it remains that the Home Office believes your date of birth to be 22 September 1981. The rest of your claim will be considered below addressing inconsistencies within your account. …” [A197].

There was no suggestion or conclusion that the certificate was a false or forged document; the grounds for rejection were that it could not be confirmed that the document was in fact the Claimant’s.

The decision maker identified and relied upon the date of birth recorded in the Claimant’s passport. She referred to the Claimant’s failure to give her complete full name when she first came into contact with the UK authorities, and concluded “When taking this into account it is considered you have attempted to deceive the authorities in the UK. Due to this it is considered that your credibility has been significantly damaged.” [A197].

Thereafter the decision maker referred to a number of inconsistencies in the Claimant’s account which led to the conclusion, “When taking the above information into account it is considered you have been internally inconsistent and inconsistent with external evidence, as such it is considered your credibility has been severely damaged.” [A199], and later, “As noted above the credibility of your account has been tested and found to be lacking, consequently your claim has been rejected. The information provided by your Support Provider, your legal representative and medical documents do not counter these findings and as such no weight is placed upon this information in terms of your claim to be a victim of exploitation. In summary, based on the available evidence and their respective assessments above, it is not accepted that you are a victim of modern slavery and your case is rejected in full below.” [A203].

It was decided that that the date of birth shown on her passport was hers and that she was an adult as at the date of the alleged trafficking. It was further decided that she did not meet any of the criteria for a finding that she had been a victim of human trafficking viz. (a) her time in Saudi Arabia, (b) her time in Qatar, or (c) her time in London [A203204]. Similarly, her claims to have been a victim of slavery, servitude or forced or compulsory labour were rejected on the same grounds, the decision maker concluding, “As you do not meet the definition of human trafficking above, it is also considered that you not meet the definition of slavery,, servitude or forced/compulsory labour as the findings regarding your evidence are deemed to stand and fall across the two considerations” [A206].

The Trafficking Convention – The Council of Europe Convention on Action Against

Article 10 of ECAT provides,

The Trafficking Directive – On 14^th October 2011, EU Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims [“the Trafficking Directive”] came into force in the UK. The Trafficking Directive is in

Article 2 of the Trafficking Directive provides the definition of trafficking, and provides,

Consent is irrelevant when identifying child victims of trafficking [see Article 2(5)].

European Convention on Human Rights – Article 4 of the ECHR provides,

The European Court of Huma Rights has held that Article 4 imposes a duty to protect victims of trafficking [see Rantsev v. Cyprus and Russia (2010) 51 EHRR 1 at §284].

The duty to identify victims of trafficking was considered by the Court of Appeal in TDT v. Secretary of State for the Home Department [2018] EWCA Civ 1395,

As a matter of domestic law, on the present authorities, a failure by the Competent Authority to follow the applicable guidance in a decision that a person was not a victim of human trafficking would not in itself be a breach of Article 4 [see R (H) v. Secretaryof State for the Home Department [2016] EWCA Civ 565 and MS (Pakistan) v.

The Domestic Regime – The UK did not implement ECAT or the Trafficking Directive via legislation. It elected to establish a National Referral Mechanism [“NRM”] and issued policy guidance. The NRM is a three stage process:

The Home Office has published guidance on the operation of the NRM, “Victims of modern slavery – Competent Authority Guidance” [“the Guidance”]. The Guidance in force as at the date of the CG Decision in this case was updated in March 2016 and appears at [Auth 8].

The Guidance sets out three criteria which must be satisfied for an adult to qualify as a victim of trafficking [pp.31-33]:

As can be seen, if the Claimant was an adult as at the date of the events complained of she must satisfy all three criteria; if she was a child at those dates then she need only satisfy “action” and “exploitation”.

The Claimant’s case is that she was exploited for the purpose of (a) forced labour or

Modern Slavery – Modern slavery includes human trafficking but also includes cases of slavery, servitude and compulsory labour. A person may not be a victim of trafficking but a victim of modern slavery. The Guidance specifically provides [p.3940],

As with trafficking, a child need not establish “means” in order to establish forced or compulsory labour, servitude or slavery.

As set out above, it is important to determine whether the person was a child as at the date of the events which are said to constitute trafficking or modern slavery. A child does not have to satisfy the means requirements in either case. That also applies to a person who is an adult as at the date of entering the NRM but who was a child as at the date of the index events.

The Guidance itself does not include any specific provision as to how the Competent Authority should assess age in the event of a dispute. What the Guidance does state is [pp.46-47],

There is no dispute that the Claimant was an adult when she entered the NRM. The dispute is whether she was a child at the time of events in Saudi Arabia, Qatar and on her arrival in the UK. The Guidance is silent as to how age should be assessed in those circumstances.

There was some confusion as to what age assessment following what guidance was in fact undertaken by the decision maker in this case.

By letter dated 26^th June 2018 [A282], the Claimant’s solicitors requested disclosure of the guidance described as “available on Horizon” under the “Establishing Age” section

By letter dated 31^st July 2018 [A272], the Claimant’s solicitors proposed that an age assessment could be undertaken at that time by appropriately trained social work professionals to determine whether the Claimant was 27 [as contended for by the

On 3^rd August 2018, the Government Legal Department [“the GLD”] replied to those

The guidance attached to that letter appears at [C31]. It is the Home Office “Assessing Age” guidance published on 26^th February 2018. That would be the relevant guidance to follow if conducting a formal age assessment in July 2018, as had been proposed by the Claimant’s solicitors.

In response to that letter, on 28^th August 2018, the Claimant’s solicitors wrote to the GLD, stating,

By letter dated 17^th September 2018 [Supp 6], the GLD replied,

It therefore appeared, from that letter, that the 2017 Assessing Age guidance had been used and applied in the assessment of the Claimant’s age. However, that was not the position adopted by the Defendant at the hearing, the Defendant’s Skeleton Argument asserting,

Because of the importance of the age assessment in this case and as a result of the inconsistency between the letter of 17^th September 2018 and the position adopted by the Defendant at the hearing, I ordered the Defendant to serve a witness statement confirming what age assessment guidance, if any, was followed and applied in the Claimant’s case. I granted the Claimant permission to adduce further evidence or to respond if so advised. There was some delay in the Defendant producing that witness evidence, which did not find its way to me until the end of January 2019.

I now have the benefit of a witness statement from Ms Angela McIlveen, a Team Leader within the NRM, who was the Senior Decision Maker who completed both Conclusive

In response, the Claimant lodged written submissions from Ms Knights QC making three main points: (i) the Defendant’s attempt to explain the previous reference to “used” was challenged, (ii) Ms McIlveen’s confirmation that the Claimant did not undergo an age assessment demonstrates “plainly an error of law because as the VMS policy is clear the Competent Authority must form a view as to an individual’s age before deciding whether or not they are a victim of trafficking”, and (c) the confusion surrounding the Defendant’s approach to the question of age assessment “must be taken into account when assessing the substantive case put forward by the Defendant overall.”

In my judgment, the Defendant’s analysis of the Guidance and the correct approach to be adopted in circumstances such as the Claimant’s is to be preferred:

As to what approach was adopted here, it is clear from the GLD letter of 3^rd August 2018, that the age assessment guidance produced was the guidance which would be followed were a formal age assessment to be carried out at that stage. It was provided in response to the Claimant’s request for an age assessment to be carried out in 2018.

The impression given by the letter of 17^th September 2018, was that the 2017 “Age

It is obvious on the face of the CG Decision that a formal age assessment was not undertaken – there is no reference to or description of such an assessment being undertaken. The GC Decision is self-evidently consistent with the decision maker, Ms

It is common ground that the standard of review involving a decision as to whether a person is a victim of trafficking requires “a heightened or more rigorous scrutiny” with “the need to show by their reasoning that every factor which tells in favour of the applicant has properly been taken into account.” [see Sir Stephen Silber in SF v.

The Claimant’s Amended Grounds in respect of which permission to seek judicial review was given are:

Those grounds were expanded upon and developed in the Claimant’s Skeleton

Breach of Policy: Age Assessment – (a) failing to establish age prior to making the conclusive ground decision; (b) failing to apply the Assessing Age guidance in substance or in form; (c) failing to determine the Claimant’s age on the totality of the evidence “in the round”; (d) failing to carry out a formal age assessment.

Failure to take relevant considerations into account – The Defendant failed to take all relevant evidence into account, in particular, failing to take account of (a) the

Procedural unfairness – (a) failing in the evidence gathering duty to contact professionals to clarify issues about which there was dispute, most critically the Claimant’s age; (b) failing to carry out an interview with the Claimant; (c) basing the decision on documentation, namely a copy of the Claimant’s passport, her domestic visa and the transcript of her police interview, which were not provided to the Claimant until after the decision was made.

Irrationality – (a) attaching “no weight” to the Claimant’s evidence when a number of aspects of the Claimant’s account were confirmed as accurate by independent evidence, and her account was consistent with objective evidence; (b) undue reliance upon inconsistencies that were either relatively minor and/or not of themselves sufficiently relevant to the actual decision making process; (c) failing to carry out a balanced assessment, weighing the alleged inconsistencies and concerns about the Claimant’s evidence against the weight of the evidence in her favour; (d) concluding that no weight could be placed on the letters in support of her claim to be trafficked as there was no medical evidence confirming that her medical condition was a direct result of having been trafficked.

The Defendant disputes the Claimant’s allegations of substantive and procedural

In his oral submissions, Mr Staker submitted that this was a case in which the Claimant’s account, even if accepted, could not account to human trafficking or modern slavery. I reject that submission on two grounds. First, nowhere was it said within the

The Claimant’s claim succeeds on three grounds:

As set out above, there was limited documentary evidence. Plainly, the Claimant’s passport, if a true and accurate record of her date of birth, would weigh heavily against her claim that she was born on 22^nd September 1990. However, the Claimant adduced a school graduation certificate and a diploma which she said were hers and which both showed a date of birth of 22^nd September 1990. If those documents were genuine documents and related to the Claimant then they could/would provide good evidence in the Claimant’s favour.

The Defendant specifically considered the graduation certificate. The decision maker’s assessment of that document appears at [A197]. The decision maker positively relies upon the fact that “there is no family name” and only bears the Claimant’s first name [A197]. The decision maker concluded that she was not satisfied that the certificate was the Claimant’s and stated that it “cannot be relied upon as a sole basis to confirming [sic] this document as evidence of your identity or age.”

That conclusion was one which was open to her. However, the graduation certificate was not the only document or “sole basis” relied upon to confirm the Claimant’s identity and date of birth; she also relied upon the diploma [B61/63]. That document is not referred to or considered at any stage in the CG Decision.

The diploma includes information not included in the graduation certificate. Not only does it include the Claimant’s first name and her date of birth, it also states that the named person is the “Child of S*****” [B63]. That is almost identical [bar one letter] to the name which the Claimant provided for her father in her application for a domestic worker visa [C177]. Although not a “family name”, it is additional information which suggests that the diploma might in fact be the Claimant’s. It also states that the named person was born in “SERANG”; that is the same as the place of birth listed on (i) the

It is also to be noted that the Defendant was able to locate the Claimant’s visa application and a copy of her passport using information provided by the Claimant in her witness statement, “namely the surnames of your father (S**** N******), mother (S***** N******) and siblings ….” [see GC Decision @ A197].

Plainly the diploma was a relevant document which had to be considered. Information within it – the reference to being the child of “S*****” and a place of birth of “SERANG” - was potentially consistent with the document referring to and belonging to the Claimant. It was consistent with information provided by the Claimant in her

In my judgment it was essential that the decision maker gave careful consideration to the contents of all of the documents relied upon by the Claimant, including the diploma and the visa application. “Anxious scrutiny” of all relevant considerations demanded that she did so. The decision maker’s failure to do so and to cross-refer the contents of the diploma with other documents represent fundamental failures in her approach.

This is particularly the case when one considers (i) the decision maker’s analysis starts with and proceeds from her findings as to the reliability of the documentation provided by the Claimant [A197], and (ii) the decision maker relied upon her finding as to the

Mr Staker submitted that I could be satisfied that the decision maker would have reached the same conclusion in relation to the diploma as she reached in relation to the graduation certificate. I am not satisfied that I can. As set out above, the diploma includes additional information, potentially consistent with this document being the

The issue of whether the Claimant was a child or not was central to the determination of whether she was required to satisfy all three of the trafficking criteria [if an adult] or only two [if a child]. Further, the decision maker’s rejection of the Claimant’s evidence as to her date of birth was a significant adverse factor when she went on to consider the

The Defendant’s failure to consider the diploma, its contents, its potential consistency with the information given in the visa application and the passport, and the possibility that it was in fact the Claimant’s, represent a failure to consider all relevant evidence contrary to the Guidance and contrary to basic principles of procedural fairness.

The Defendant’s failure to consider the diploma and to make a finding as to the Claimant’s date of birth in the light of her assessment of the diploma is, in my judgment, so fundamental that it vitiates the Defendant’s approach to the Claimant’s credibility and the decision as a whole.

The decision maker asserted on a number of occasions that “no weight” was to be attached to the Claimant’s evidence [see A196]. Whilst it is of course a matter for the decision maker to decide what weight is to be attached to the Claimant’s evidence balanced against all of the other evidence, where contemporaneous unchallenged documentary evidence supports the Claimant’s account, it cannot be said that “no

By way of example:

An assessment of the Claimant’s credibility must involve careful consideration of evidence and factors supporting her account balanced against evidence and factors contradicting or undermining her account. The decision maker failed to carry out a balanced assessment of positive and negative factors and focussed exclusively upon the alleged inconsistencies in the Claimant’s account without recognising any of the consistencies or positive factors.

In my judgment it was not open to the decision-maker to attach “no weight” to the

Whether the Claimant was an adult or a child, she would have to establish that she was subject to an “act” of transportation, recruitment, transfer, harbouring or receipt.

The decision maker addressed this issue in relation to Saudi Arabia at [A203], stating,

She addressed the issue in relation to Qatar and the UK at [A204],

The Claimant’s account that she was transported to Saudi Arabia, Qatar and the UK was not challenged. It is plain that she was transported to the UK as a visa was issued for her arrival in the UK at the same time as the Al-Thani family [see C177, C180 and C182]. Similarly, she must have been transported to Qatar in order to be in the employment of the Al-Thanis, a Qatari family [C180 and C182].

In my judgment, it was not open to the Defendant to conclude that the Claimant had not been transported to the UK. The documentary evidence demonstrated without question that she was. There was no evidence to suggest to the contrary. The finding that she did not satisfy the “act” criteria in respect of her transportation to the UK was perverse.

Similarly, in my judgment, in the absence of a clear reasoned finding that the

Whilst it may have been open to the Defendant to conclude that the Claimant had not worked in Saudi Arabia at all, nowhere does she set out that conclusion in the GC Decision. In the absence of an express finding that the Claimant had not worked in

The fact that the Defendant reached perverse and unsustainable conclusions on the first trafficking criteria in respect of each of the three complaints of trafficking is a fundamental failure. In my judgment it demonstrates a failure to properly and fairly evaluate the evidence and reach conclusions reasonably open to the decision maker. It is consistent with, and in my judgment demonstrates, a rejection of the entirety of the Claimant’s evidence without proper consideration of the totality of the evidence.

In the light of my findings as to (a) the correct approach to age assessment in a case such as this, and (b) the approach actually adopted by the decision maker in this case, the Claimant’s complaints about the failure to carry out a Merton (Footnote: ⁴) compliant age assessment fall away.

As to the alleged failure to take relevant considerations into account, save for the failure to consider the diploma and the visa applications, in my judgment the decision maker took all other relevant considerations into account as shown by the CG decision itself. The decision maker expressly acknowledged that there was objective evidence of trafficking in the relevant geographic areas [A192-195]. She took that into account when balancing that evidence against the specific evidence in the Claimant’s individual case.

In my judgment the Defendant did not fail in her “evidence gathering duty” [Claimant Skeleton §96]. She received extensive written submissions and additional documentation from Kalayaan which was considered [save for the diploma and visa applications] in the CG decision.

As conceded by Ms Knights QC, the Defendant is not obliged to carry out an interview of every potential trafficking victim. It is a matter for the Defendant to decide whether further investigation or an interview is required. In the circumstances of this case where the Claimant was supported by Kalayaan and where extensive documentation and written submissions had been submitted in response to the first negative conclusive grounds decision [of 8^th February 2017] [see B40-B60], it was open to the Defendant to proceed to make the CG decision on the basis of the totality of the material placed before her.

As set out above, the Claimant’s challenge that the CG decision was based upon documentation that had not been provided to the Claimant [namely the passport, domestic worker visa and transcript of police interview] was factually wrong. That challenge falls away.

The Defendant was entitled to identify and rely upon inconsistencies in the Claimant’s account and inconsistencies with other external evidence. However, for the reasons already given, what she was not entitled to do was to disregard the Claimant’s evidence in its entirety and ignore consistencies in the Claimant’s account.

The Defendant did take into account the medical and other mitigating evidence [see A201-202]. That evidence was not probative as to whether the Claimant had been a victim of trafficking or modern slavery as she contended. The weight to be attached to that evidence was a matter for the decision maker.

In the light of my findings as set out above:

Following receipt of the draft judgment, the parties have agreed a draft order which I now make.