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

For the purposes of the Convention on Action against Trafficking in Human Beings, trafficking requires relevant action undertaken for the purpose of exploitation. A decision maker must address the material periods and explain why the evidence does or does not support that purpose. At the reasonable-grounds stage, the threshold is low, and detention followed by forced sexual and domestic labour may amount to trafficking even where the initial movement involved people-smuggling.

Where domestic guidance adopts the Convention, current circumstances may be considered at that stage. Victim status, insofar as it concerns entitlement to Convention protection and assistance, is potentially time-limited and depends on the person’s need for recovery and protection.

The claimant, a Chinese national, challenged the Secretary of State’s decisions of 31 July and 14 December 2009 that she was not a victim of trafficking under the Convention on Action against Trafficking in Human Beings.

Her account of transportation and detention by Snakeheads was not materially disputed. The issues were whether the relevant conduct was for the purpose of exploitation, rather than people-smuggling with incidental exploitation, and whether the Secretary of State could consider her current circumstances at the reasonable-grounds stage when deciding whether she remained entitled to Convention protection and assistance.

1. Challenge to the trafficking finding. The decision that the claimant had not been trafficked at any time was irrational because the decision letter failed to analyse the 18-month period in an unknown European country or the seven-month period in the United Kingdom. A decision maker must explain the reasons for the decision and be seen to address the issues.
2. As to the European period, it was just open to a decision maker to conclude that the sexual and other exploitation was not the purpose of harbouring. The decision was nevertheless defective because it did not address that period.
3. As to the United Kingdom period, applying the low threshold of the reasonable-grounds test, the proper conclusion was that there had been a period of trafficking. After it became clear that payment from the claimant’s father was unlikely, she was detained for about six months, forced to submit to sex and required to perform unpaid housework. The smuggling process had ended, and she was being kept for exploitation.
4. Current circumstances. The Secretary of State’s guidance adopted and purported to apply the Convention domestically. The court could therefore examine the Convention in deciding whether the published policy had been followed, although the Convention itself had not been incorporated into domestic law.
5. The Convention did not prevent consideration of current circumstances at the reasonable-grounds stage. Its provisions on assistance, recovery and residence permits require assessment of the claimant’s physical, psychological and social recovery and personal situation. Victim status, in the sense of entitlement to Convention protection and assistance, may therefore be time-limited and tailored to the individual’s need.
6. By December 2009 the claimant had been free from the Snakeheads for over two years, had an established relationship and child, and was no longer in need of Convention assistance. That conclusion could not be challenged. The court invited written submissions on the form of order and consequential orders.