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

Gateway decisions on whether a person is a victim of trafficking require rigorous scrutiny, particularly where fundamental rights are engaged. The competent authority must show that every factor favouring the applicant has been properly considered. It must apply its own trafficking guidance, including warnings that trauma, childhood abuse, fear and mistrust may explain inconsistent, incomplete or delayed accounts. Criminal investigations and prosecution assessments address different questions and standards of proof; failure to prosecute does not materially determine whether trafficking occurred. Supporting organisations’ evidence must receive due weight, although the authority must reach its own conclusion. Corroboration is not a legal precondition to accepting a trafficking victim’s evidence. Material factual errors or failures to consider relevant evidence may render the decision unlawful.

The claimant, a national of St Lucia, sought judicial review of the Competent Authority’s June 2014 conclusive-grounds decision that she was not a victim of trafficking. She alleged trafficking and sexual exploitation in St Lucia and the United Kingdom, including transportation to the United Kingdom as a child. The Competent Authority relied substantially on perceived inconsistencies, police investigations, a police report assessing the prospects of criminal conviction, and limited weight given to supporting expert evidence. The central issues were the intensity of judicial review, the relevance of criminal investigations, the treatment of expert and supporting-organisation evidence, the need for corroboration, and factual errors in the decision.

1. Claim allowed and decision quashed. The Competent Authority was required to approach the gateway decision with heightened and rigorous scrutiny because it concerned fundamental rights associated with protection from trafficking. The appropriate approach required the decision to show that every factor favouring the claimant had been properly taken into account.

2. The Competent Authority failed to apply the warnings in its published guidance that trauma and related circumstances may explain inconsistent, incomplete or delayed evidence. It also failed adequately to engage with expert evidence from the NSPCC, Dr Walsh and Ms Cavendish concerning the effects of trauma on disclosure and memory. The failure to follow the guidance without good reason was an error of law.

3. The Competent Authority gave significant weight to the Borley report and police investigations. That was unlawful. The criminal inquiry concerned whether there was a realistic prospect of conviction and involved a substantially higher standard of proof. It was independent of the civil trafficking-identification process and did not apply the guidance or determine whether the claimant was credible on the balance of probabilities.

4. The Competent Authority failed to consider factors supporting the purpose element of trafficking, including matters it had accepted when considering the action element. Separate alleged trafficking incidents also required separate consideration.

5. There was no general legal requirement for corroboration before evidence could be accepted. The decision’s reliance on the absence of corroboration introduced an unlawful requirement. Material factual errors concerning the claimant’s disclosures and supporting reports also contributed to the adverse credibility finding. The matter was to be reconsidered in accordance with the judgment.