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

A trafficking victim’s refusal of discretionary leave is unlawful where the decision-maker fails to consider material expert evidence about psychological treatment or fails to make the positive inquiries required by published trafficking guidance. Police referrals must be made promptly after a credible trafficking allegation, and the victim must receive information enabling an informed decision about cooperation. A decision based on the absence of cooperation with an investigation that the authorities failed to initiate cannot stand.

The personal-circumstances ground under Article 14 of the Council of Europe Convention on Action against Trafficking in Human Beings concerns circumstances sufficiently connected with the victim’s status and welfare as a trafficking victim. The refusal was quashed and a declaration was granted for breach of Article 4 ECHR.

The claimant, an Ethiopian national accepted to be a victim of trafficking, challenged the Secretary of State’s decision that she did not qualify for discretionary leave. The decision relied on the absence of an ongoing police investigation and on the fact that she was not receiving counselling.

The claimant had escaped domestic servitude, had been diagnosed with a complex trauma reaction, had been recommended treatment, and was pregnant. No police referral had been made before the conclusive grounds decision, and the decision did not address the expert recommendation. The issues were whether the decision unlawfully failed to comply with trafficking obligations, published guidance and duties of inquiry, and whether the claimant’s personal circumstances justified leave.

1. Police investigation. The Guidance required a credible trafficking allegation to be referred to the police promptly, followed by police consultation during the recovery and reflection period and before the conclusive grounds decision. The CAT also required information enabling the victim to make an informed decision about cooperation. None of these steps occurred.
2. The reasoning in R (Atamewan) v SSHD [2014] 1 WLR 1959 applied directly. The decision unlawfully relied on the absence of cooperation with an investigation which the Defendant had failed to initiate, contrary to the positive obligation to investigate and the negative obligation in Article 27 of the CAT. The challenge on this ground succeeded.
3. Personal circumstances. Article 12(1) of the CAT required appropriate assistance for the claimant’s psychological recovery. The expert recommendation for treatment was a material consideration. The Defendant had failed to consider it or ask why treatment had not begun, whether the claimant wished to undergo it, when it could start, and whether equivalent treatment was available in Ethiopia. The duty of inquiry stated in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 was not satisfied.
4. The Defendant could not justify the omission by relying on the claimant’s legal representation. The Guidance imposed a positive duty to make proper inquiries. The personal-circumstances decision therefore could not be supported.
5. The court did not determine the argument under section 55 of the Borders, Citizenship and Immigration Act 2009. It expressed the provisional view that personal circumstances must bear some relationship to the person’s status as a trafficking victim. Pregnancy or a child may be relevant where they affect the victim’s welfare, safety, treatment or recovery. The trafficking and Article 8 ECHR assessments remain distinct.
6. The refusal of discretionary leave on trafficking grounds was quashed. The conclusive grounds finding that the claimant had been trafficked remained intact. A fresh and swift decision was required. A declaration was granted that the claimant’s Article 4 ECHR rights had been breached.