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

A competent authority assessing a trafficking claim must apply its published policy unless there are reasonable grounds for departing from it and the decision explains that departure. Where the policy recognises that trauma, shame, cultural factors, post-traumatic stress disorder and delayed disclosure may affect credibility, those matters must be addressed before an adverse credibility finding is made. The decision must give careful and legally adequate reasons showing how the guidance was applied. After a reasonable-grounds decision, the authority cannot treat the claimant’s failure to report the alleged trafficking to the police as damaging to credibility where the guidance places responsibility for referral on the authority.

The claimant challenged the Secretary of State’s conclusive-grounds decision of 6 December 2013, which declined to recognise her as a victim of trafficking. A previous reasonable-grounds decision had accepted that there were reasonable grounds to believe that she was a victim. The claimant relied on evidence concerning alleged sexual exploitation, domestic servitude, deception, trauma and post-traumatic stress disorder.

She argued that the decision-maker had failed to apply the Victims of human trafficking – competent authority guidance, particularly its provisions on credibility, mitigating circumstances, delayed disclosure and police referrals. The central issue was whether the decision was unlawful for failure to apply that guidance.

1. The claim succeeded. The decision of 6 December 2013 was quashed. The case had to be reconsidered, including whether the claimant was a victim of trafficking.
2. A public authority which has adopted a policy must follow it unless there are reasonable grounds for departing from it and those grounds are explained: Lumba v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245. The guidance here was bespoke to trafficking claims and required a different approach from a conventional assessment based simply on inconsistency or delayed disclosure.
3. Before making an adverse credibility finding, the decision-maker had to consider the guidance’s mitigating circumstances. These included trauma, shame, cultural and social norms, difficulty expressing oneself, mistrust of authorities and post-traumatic stress disorder. The decision letter did not address those matters, despite accepting the medical diagnosis and having relevant expert evidence.
4. The guidance also required a high standard of reasoning to demonstrate a careful and conscientious analysis of the relevant factors: R (SF) v Secretary of State for the Home Department [2015] EWHC 2705 (Admin); R (M) v Secretary of State for the Home Department [2015] EWHC 2467. The decision gave no adequate explanation of how the guidance had been applied.
5. It was unlawful to rely on the claimant’s failure to report the alleged trafficking to the police. Once a reasonable-grounds decision had been made, the guidance placed responsibility for bringing credible allegations to the police on the authority. Ground 1 therefore disposed of the case, and it was unnecessary to decide the challenge concerning the substantive definition of trafficking.