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

In reviewing a trafficking decision engaging Article 4 rights, the court must apply anxious scrutiny, but the exercise remains judicial review rather than a rehearing on the merits. The decision-maker must consider legally relevant factors identified in the applicable guidance and those obviously material to the case.

Forced labour requires work exacted under the menace of a penalty and performed involuntarily. Low wages, poor conditions, economic necessity and vulnerability do not, without more, establish forced labour or domestic servitude. Consent must be assessed in the circumstances as a whole. A disproportionate burden is not automatically forced labour. Domestic servitude is an aggravated form of forced labour involving additional features such as the inability to change one’s status.

The claimant, an Egyptian national, challenged the Secretary of State’s conclusive grounds decision of 23 May 2016 that there were insufficient grounds to believe that he had been a victim of human trafficking. He had worked for an employer in Qatar and later in the United Kingdom as a domestic worker. He relied on long hours, little pay, passport retention, threats, violence and his vulnerable economic position.

The Secretary of State accepted the action and means components of trafficking but concluded that the work was neither forced nor involuntary. The claimant argued that the decision misapplied the Convention and the Home Office guidance and was irrational. The issue was whether, applying anxious scrutiny, it was properly open to the Secretary of State to reach that conclusion.

1. Claim dismissed. The court held that anxious scrutiny required careful review of whether legally relevant considerations had been addressed, but did not permit the court to reargue the merits or substitute its own assessment of the evidence.
2. The Secretary of State had correctly directed herself that a menace of penalty could take subtle as well as physical forms. On the evidence, however, it was rational to find no such menace. The claimant’s concerns about his visa were not shown to have constrained his conduct, and the final assault and threats occurred when he left employment rather than as a controlling measure to keep him in it.
3. The claimant’s vulnerability, poor pay, living conditions and excessive workload did not, without more, establish forced labour or domestic servitude. Economic necessity and the belief that there were no alternative jobs could be relevant circumstances, but did not necessarily negate free will.
4. Van der Mussele v Belgium did not establish that a disproportionate burden automatically amounted to forced labour. The court had to consider all the circumstances, which the Secretary of State had done.
5. Siliadin v France illustrated circumstances capable of amounting to forced labour or servitude, including prolonged exploitation, lack of documents and resources, fear of arrest and a serious deprivation of personal autonomy. Those circumstances were materially different here. Chowdury v Greece confirmed that prior consent did not necessarily exclude forced labour, but its extreme facts did not demonstrate an error in the decision under challenge.
6. Domestic servitude was an aggravated form of forced labour. The claimant had been able to leave when he chose to do so, so the additional element of an inability to change his status was not established.

The decision was therefore within the range of decisions open to a rational decision-maker.

The judgment was a first-instance judicial review decision. Permission to apply for judicial review was granted on 13 December 2016. The court proceeded despite a separate asylum appeal, because the two proceedings concerned different decisions and issues.