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

Trafficking requires the combined elements of relevant action, prescribed means and a purpose of exploitation. A vulnerable migrant who agrees to sex as the price of clandestine transport is not thereby trafficked where a real and acceptable alternative exists and the transport lacks an exploitative purpose.

A human rights claim may be certified as clearly unfounded where it is bound to fail under anxious judicial scrutiny. Credibility alone rarely justifies certification. An EU member state may ordinarily be assumed to honour its treaty obligations unless cogent evidence shows a real risk that it cannot provide appropriate protection or necessary medical care.

An Iraqi Kurdish woman sought judicial review of two decisions made after reconsideration of her case. The Competent Authority found no reasonable grounds to believe that she had been trafficked from France to the United Kingdom. The Home Secretary certified her human rights claim as clearly unfounded and declined to determine her asylum claim in the United Kingdom instead of returning her to Belgium under the Dublin II arrangements.

Mrs Justice Thirlwall had refused permission to seek judicial review. The Court of Appeal subsequently granted permission and retained the substantive proceedings. The issues were whether the trafficking decision was lawful, whether return to Belgium arguably exposed the appellant to ill-treatment, trafficking, suicide or inadequate protection, and whether the asylum claim had to be determined in the United Kingdom.

1. Judicial review refused. Sir David Keene, with whom Lord Justice Longmore and Lord Justice Maurice Kay agreed, held that both challenged decisions were lawful and sound.

2. The Competent Authority rationally assessed credibility in the round. The appellant had supplied elaborate false accounts to the Belgian and British authorities. Sensitivity to trauma did not prevent the Authority from evaluating all the information critically and objectively. It was entitled to find that her account did not establish reasonable grounds for believing that she had been trafficked.

3. Even if her account were accepted, Article 4(a) of the Council of Europe Convention on Action against Trafficking in Human Beings required action, prescribed means and an exploitative purpose. Transportation was established, but the other elements were not. The appellant had sought out a smuggler and had a real and acceptable alternative in seeking protection from the French authorities. There was also no evidence that her transportation was undertaken for exploitation. The same absence of prescribed means defeated the alternative allegation that she had been trafficked by being harboured in France.

4. The human rights certification was not based on credibility alone. The Home Secretary had also considered the claim on the assumption that the appellant’s account was true. Belgium was entitled to be treated as a state which would observe its Convention obligations unless case-specific evidence rebutted that starting assumption.

5. There was no evidence that Belgium was unwilling or unable to protect the appellant against her brother, other non-state actors or future trafficking. A risk emanating from private persons can engage Article 3 of the European Convention on Human Rights, but the risk must be real and appropriate state protection unavailable. Neither condition was shown.

6. The appellant’s fear of return and consequent suicide risk had to be considered even if the fear was irrational. Effective safeguards in the removing and receiving states weighed heavily against an Article 3 claim. The promised monitoring, medical escorts, liaison and Belgian psychiatric care meant that the particularly high threshold for a foreign suicide-risk case was not arguably crossed.

7. The request that the United Kingdom determine the asylum claim depended on a serious risk of breach of fundamental rights in Belgium. Since no such risk existed, the Dublin II and Charter argument failed. The refusal to exercise discretion was not irrational.

1. Court of Appeal (Civil Division): Permission to seek judicial review was granted and the substantive proceedings were retained in the Court of Appeal. The court refused judicial review of the Competent Authority’s decision of 2 June 2011 and the Home Secretary’s decision of 1 June 2011: [2012] EWCA Civ 23.

2. High Court: Mrs Justice Thirlwall refused the renewed oral application for permission to seek judicial review on 26 November 2010. The later decisions challenged in the Court of Appeal did not yet exist.

3. High Court: Collins J had previously refused permission on the papers.