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

At the reasonable-grounds stage of trafficking identification, the question is whether the evidence gives a reasonable observer grounds to suspect that the person may be a victim of trafficking. The decision-maker must apply the low threshold of suspicion, not decide whether the account is proved or whether disbelief is more likely than belief. Relevant country information, recognised trafficking patterns and possible explanations for inconsistencies must be considered. The initial decision is an inquisitorial filter for further investigation and support, not a summary determination of ultimate credibility. Failure to apply the published guidance may constitute an error of law and, where Article 4 ECHR is engaged, a breach of the positive duty to investigate.

The claimant, a Vietnamese national, sought judicial review of three Competent Authority decisions dated 20 September, 25 September and 14 October 2013. The decisions found no reasonable grounds to believe that he had been trafficked from Vietnam to Russia and then to the United Kingdom. He alleged forced labour, deception, coercion and exploitation after arrival in Russia.

The claimant argued that the decision-maker had applied too high an evidential threshold, failed to consider relevant country information, misunderstood inconsistencies in his account, and failed to apply the trafficking guidance on vulnerability and exploitation. He also alleged a breach of the positive obligations under Article 4 ECHR.

1. The claim succeeded. The three decisions were considered together because the later decisions purported to reconsider the first. They were quashed and remitted for reconsideration. The claimant was also entitled to a declaration of breach of Article 4 ECHR.
2. The reasonable-grounds question was whether, on all the available evidence, there were grounds on which a reasonable observer could suspect that the claimant might be a victim of trafficking. It was not whether the claimant had proved the trafficking account, or whether the decision-maker personally believed it on the facts then known.
3. At this preliminary stage, reasonable grounds for belief could coexist with reasonable grounds for disbelief. Once reasonable grounds for belief existed, competing grounds for disbelief were irrelevant to the initial decision. The balance between them belonged to the later conclusive-grounds decision, after reflection, recovery and further enquiries.
4. The decision-maker had to apply the guidance purposively. This required attention to the low threshold, the effects of trauma and vulnerability, possible reasons for gaps or inconsistencies, later disclosure in a safe environment, and relevant country information. The process was inquisitorial, and the Competent Authority should proactively seek useful information where necessary.
5. The decisions failed to recognise that the claimant’s account was consistent with recognised trafficking patterns from Vietnam to Russia and onward to the United Kingdom. They treated perceived inconsistencies and omissions as determinative without considering plausible mitigating explanations, including trauma, fear of authority and mistrust. The reasoning therefore addressed the wrong question and applied too high a standard.
6. The later decisions did not cure those defects. The 25 September decision merely repeated the earlier credibility conclusion. The 14 October decision continued to treat later disclosure as undermining credibility, wrongly referred to the burden of proof resting on the claimant, and failed to apply the inquisitorial and protective approach.
7. The errors also breached the positive investigative obligation under Article 4 ECHR. Costs were ordered against the defendant, subject to assessment if not agreed.

not stated in the judgment.