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

Human trafficking may consist of recruitment, transportation, transfer, harbouring or receipt, combined with a proscribed means and an intention to exploit. It need not involve crossing an international border. Judicial review of a trafficking decision requires anxious scrutiny, but remains a review of legality, relevant considerations and rationality; it does not permit the court to choose between competing factual interpretations. A decision-maker must address policy factors and matters obviously material to the individual case, but need not mention every factor, however trivial. An unincorporated international treaty cannot create domestic rights or override directly effective EU legislation. The Dublin Regulation therefore governed responsibility for the asylum claim. General assurances by Italy concerning accommodation for families could make a specific assurance unnecessary, and a stay pending another appeal was refused.

The claimant, an Albanian national, sought judicial review of decisions concerning her asylum claim, alleged trafficking, detention and proposed removal to Italy under the Dublin II Regulation. The Secretary of State initially declined to refer her to the National Referral Mechanism, later made a positive reasonable-grounds decision, but ultimately concluded on the balance of probabilities that she was not a victim of trafficking. The claimant also challenged certification of her human-rights claim and relied on conditions in Italy, her mental health and the interests of her child under section 55 of the Borders, Citizenship and Immigration Act 2009.

Permission had been granted on the trafficking and detention grounds, while permission on the Italy-return grounds was renewed. The central issues were whether the trafficking decision was unlawful or irrational, whether detention was unlawful, whether trafficking obligations displaced Dublin II, and whether removal to Italy required a stay or further assurance.

1. Trafficking definition. Article 4 of the Trafficking Convention and the Secretary of State’s policies encompass recruitment, transportation, transfer, harbouring or receipt, achieved by one or more specified means for the purpose of exploitation. The concept is not confined to cross-border transportation. Harbouring includes accommodating or holding a person at the place of exploitation or beforehand. Transporting a person to prostitution appointments, without more, does not itself establish trafficking.
2. Review of the conclusive-grounds decision. The competent authority correctly directed itself as to the trafficking definition and considered the relevant policy factors. Anxious scrutiny is a high-intensity form of ordinary judicial review, applied realistically. The court must ensure that legally relevant considerations identified in the policy, and matters obviously material to the case, have been considered. It need not search for error through artificial reasoning or require every factor, however trivial, to be expressly addressed. The authority’s interpretation of the accepted facts as domestic abuse rather than premeditated trafficking was rational and lawful.
3. Dublin II and trafficking. The unincorporated Trafficking Convention created no free-standing domestic rights or duties. Article 4 ECHR did not require a particular form of temporary admission. Dublin II had direct legal effect and governed the allocation of responsibility between Member States. Temporary admission granted during the NRM process fell within the exclusion in Article 9.1 for authorisations issued while an application for a residence permit was being examined.
4. Detention and return to Italy. The initial failure to refer the claimant was not irrational in view of credibility concerns and the Poppy Project’s later decision not to refer her. Her continued detention was therefore lawful. Italy’s general assurances, given following Tarakhel v Switzerland [2014] ECHR 1185, were sufficient for a family return; a specific allocation before a confirmed transfer date was unnecessary. The evidence concerning mental health and section 55 was adequately addressed. A stay pending the appeal in MS v Secretary of State for the Home Department [2015] EWHC 1095 (Admin) was not required.
5. The trafficking and detention challenges failed. Permission to renew the remaining grounds was refused and the stay was refused.

This was a first-instance judicial review. Permission was granted on the trafficking and detention grounds by HHJ Karen Walden-Smith. Permission on the remaining grounds was refused, and the claimant renewed that application. Cranston J rejected the substantive challenges, refused permission to renew, and refused a stay.