MN, R (on the application of) v Secretary of State for the Home Department & Anor

The two-stage trafficking identification process has different purposes and standards. The initial reasonable-grounds decision is a protective filter, requiring only reasonable grounds to believe that the person might have been trafficked. The conclusive-grounds decision determines, as a question of past fact, whether the person was trafficked. Since ECAT prescribes no standard for that stage, applying the balance of probabilities is lawful unless irrational. Trafficking identification under ECAT is distinct from asylum and non-refoulement assessments, for which the lower, risk-based standard applies. The same evidence may therefore produce different outcomes under the different legal regimes.

The claimant challenged a negative conclusive-grounds decision made under the National Referral Mechanism. She alleged that she had been trafficked from Albania to Italy and forced into prostitution. The competent authority had first made a reasonable-grounds decision in her favour, but later concluded, after considering further evidence and the rejection of her asylum account by the First-tier Tribunal, that she was not a victim of trafficking.

The claimant argued that the lower standard applicable in asylum and human-rights protection claims should apply at the conclusive stage, and challenged the assessment of her credibility and expert evidence. The central issues were the lawful standard of proof, the relationship between ECAT trafficking decisions and non-refoulement obligations, and the scope of judicial review.

1. The application was dismissed. The balance of probabilities was a lawful standard for the conclusive-grounds stage.
2. ECAT expressly provides a reasonable-grounds threshold for the initial protective stage but does not prescribe, expressly or by implication, the standard at the conclusive stage. The Secretary of State was entitled to adopt the balance of probabilities, which reflects the later decision-maker’s task of deciding whether the person was in fact trafficked.
3. Trafficking identification under ECAT and the Directive forms a distinct scheme from asylum and non-refoulement obligations under the Refugee Convention and the ECHR. The lower risk-based standard applicable to asylum, article 3, article 2 and article 4 claims does not automatically govern an ECAT trafficking decision. The same evidence may therefore be assessed under different standards according to the legal issue to which it is relevant.
4. The conclusive decision is retrospective and factual. The decision-maker must apply the facts found to the legal definition of trafficking. The gravity of the consequences does not convert that task into a prospective risk assessment.
5. The Secretary of State was not required to demonstrate that the guidance reproduced the language of Karanakaran v Secretary of State for the Home Department in a fixed form. Proper application of guidance which enables a holistic assessment of the evidence is sufficient.
6. The competent authority was entitled to rely on cumulative inconsistencies and implausibilities in the claimant’s account. The court would not re-determine those factual issues in judicial review proceedings absent irrationality or another public-law error. Expert evidence concerning trauma or trafficking indicators was relevant but not determinative; the competent authority remained the primary decision-maker.
7. The claimant’s separate challenges to credibility and the treatment of expert evidence disclosed no arguable error of law. Permission on those grounds was refused, and the judicial-review claim was dismissed.