AB v Secretary of State for the Home Department

A decision-maker determining whether a person is a victim of trafficking must engage with material evidence identified as potentially important by the Secretary of State’s own policy. This includes medical evidence bearing on the person’s ability to report abuse and a report from an experienced support organisation expressing an opinion on trafficking. It is insufficient merely to list such material or state a contrary conclusion. The decision-maker must explain, however briefly, why the evidence is rejected or given little weight. Failure to do so may render the decision both unlawful for insufficient regard to policy and irrational for failure to take relevant evidence into account.

The claimant, a Nigerian national, challenged the Secretary of State’s negative conclusive grounds decision under the National Referral Mechanism. She relied on alleged trafficking and abuse in Nigeria and the United Kingdom, supported by psychiatric reports and a report from Ashiana, a specialist support organisation. The claim alleged breach of policy, failure to consider relevant evidence, inadequate reasoning and breach of article 4 of the European Convention on Human Rights.

The Secretary of State argued that the evidence had been considered, that the claimant’s account was inconsistent with trafficking, and that the decision was rational. The central issues were whether the decision-maker had lawfully dealt with the psychiatric and support-organisation evidence.

1. The application succeeded. The decision of 9 July 2014 was quashed. The Secretary of State was ordered to reconsider the claimant’s trafficking claim and to pay her reasonable costs.
2. The court proceeded on the basis of the ordinary Wednesbury standard of review. It did not need to resolve the competing argument that trafficking decisions engaging fundamental rights required anxious scrutiny.
3. The decision-maker had listed psychiatric reports dated October 2013 and January 2014 but had not engaged with their contents. The reports indicated possible earlier dissociative episodes and longstanding, complex post-traumatic stress disorder. That evidence directly undermined the conclusion that there was no evidence of mental illness during the relevant period. The decision-maker was obliged to explain how that conclusion had been reached. The failure to do so was irrational.
4. The Secretary of State’s policy identified information from experienced and respected support organisations as potentially important. Where such a report might be obtainable, the policy used imperative language requiring it to be obtained. Such an organisation’s opinion did not bind the decision-maker, but the decision-maker had to recognise the opinion, engage with it and explain, however briefly, why it was rejected. The failure to address Ashiana’s opinion that the claimant was trafficked breached the policy and was irrational.
5. The court did not determine the remaining grounds, including the article 4 claim. It noted concern about internal filtering of referrals to the police, but considered the evidence inadequate to decide whether that process involved public-law error.