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

Discretionary leave for a trafficking victim pursuing civil compensation is not automatic. The decision-maker must apply the relevant policy criteria, including the nature and credibility of the claim, its likely duration, and whether the claimant needs to be physically present in the United Kingdom. The underlying trafficking assessment remains a public-law decision subject to review for legal error or irrationality. Treatment which may be abusive or breach an employment contract does not, without more, amount to forced labour or domestic slavery. The normal assumption is that a compensation claim can be pursued from abroad, with return for the hearing or video-link evidence where appropriate.

The claimant, a Philippine national and recognised victim of trafficking into the United Kingdom by an earlier employer, sought discretionary leave to remain so that she could pursue civil compensation proceedings against a later employer, Ms Hashmi. The Secretary of State accepted the earlier trafficking but concluded that the claimant had not established trafficking by Ms Hashmi for the purpose of exploitation. Leave was refused on 5 September 2014. The claimant sought judicial review, alleging an unlawful trafficking assessment, irrational failure to substantiate her account, and failure to apply the Secretary of State’s policy.

1. Claim dismissed. The Secretary of State’s decision was reviewable only for legal error or a conclusion which no reasonable decision-maker could reach. The heightened or anxious scrutiny approach relied on by the claimant arose in a different context and was not necessary to determine this claim. The approach in AA (Iraq) v SSHD [2012] EWCA Civ 23 was the applicable public-law framework.
2. The trafficking assessment properly applied the three components in Article 4.a of the Council of Europe Convention on Action against Trafficking in Human Beings, including action and means undertaken for the purpose of exploitation. The conclusion that the claimant had not established that she was recruited in the United Kingdom by proscribed means for that purpose was lawful and rational. Alleged abusive treatment, breach of an employment contract, or conduct undermining trust and confidence did not, without more, establish forced labour or domestic slavery.
3. The compensation policy required consideration of the type of compensation, the grounds of the claim, its credibility, its likely length, and whether physical presence in the United Kingdom was necessary. A claim appearing legitimate was likely to satisfy the credibility criterion; the imminence of trial was material; and physical presence at trial was the particularly relevant consideration.
4. The policy assumed that justice could ordinarily be secured by pursuing the claim from abroad, with return near the hearing or video-link evidence. Article 6 of the European Convention on Human Rights guaranteed a fair trial, but did not confer a right to be physically present throughout preparation of the case. The Secretary of State had considered the relevant matters and the claimant had not shown why further instructions could not be provided from abroad.
5. Even if the trafficking assessment had been unlawful, a mandatory order requiring discretionary leave would not have been made. The claim was dismissed.