NM, R (On the Application Of) v The Secretary of State for the Home Department

A Competent Authority assessing a modern-slavery referral must apply the published guidance and analyse the applicant’s actual case with a high standard of reasoning. Lack of corroborative detail may justify questioning credibility, but it is not automatically determinative and cannot ordinarily justify giving the applicant’s evidence no weight. The authority must separately address forced labour, including whether work was exacted under the menace of a penalty and whether services were offered voluntarily. It must also assess vulnerability in the context of the applicant’s circumstances as a whole, including events occurring before arrival in the United Kingdom.

The claimant, a Malawian national, sought judicial review of the defendant’s conclusive decision that she was not a victim of human trafficking or modern slavery. She alleged that she had been transported to the United Kingdom for domestic work, had worked long hours without payment, and had remained because she lacked money, documents and alternative accommodation.

Permission was granted on challenges concerning credibility and the legal definition of trafficking. The central issues were whether the defendant irrationally rejected the claimant’s evidence for lack of identifying details, and whether it had properly considered forced labour, vulnerability and the three components of trafficking.

1. Credibility. The defendant unlawfully treated the claimant’s inability to provide surnames, an address or identifying landmarks as destroying her credibility. The guidance permitted those matters to be questioned, but described detail as a factor and required consideration of whether further information was needed. It did not make lack of detail determinative.
2. A conclusion that an account should receive no weight required careful analysis and a high standard of reasoning. The decision failed to address relevant favourable matters, including the claimant’s detailed and generally consistent account, the trafficking indicators, the City Hearts evidence and her presentation to the police. It also referred to supposed internal inconsistencies which did not materially exist, and inconsistently relied on the claimant’s evidence after stating that no weight could be attached to it.
3. Definition of trafficking and forced labour. The decision failed to apply the forced-labour test to the claimant’s circumstances. Forced labour required consideration of both the menace of a penalty and whether services were voluntarily given. Absence of physical mistreatment or non-payment alone did not answer those questions.
4. The three trafficking components—action, means and exploitation—required separate and connected analysis. Events in Malawi could inform whether the claimant was vulnerable in the United Kingdom. The decision’s separation of the two contexts was therefore unsustainable.
5. The defendant had not demonstrated that the errors would probably have made no difference. The decision of 29 September 2016 was quashed. The defendant was required to reconsider the claim, addressing credibility, vulnerability and forced labour by applying the general principles specifically to the claimant’s case.