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

In judicial review of a modern slavery decision, the court may apply anxious scrutiny by examining whether the decision-maker’s reasoning shows that every material factor favourable to the claimant was considered. The standard does not require undue credulity or a separate merits assessment.

Where alleged exploitation began during childhood but the claimant is assessed as an adult, the child-trafficking guidance must be applied to the relevant components of trafficking and to the assessment of childhood events. It does not require alleged grooming or continuing coercion to be assumed without an evidential basis. A competent authority may reject an account on substantial inconsistencies and implausibilities, provided it gives clear and robust reasons.

The claimant, an Albanian national, sought judicial review of the defendant’s conclusive grounds decision that she was not a victim of trafficking. Her account included alleged sexual exploitation by a man during childhood and later enforced prostitution in the United Kingdom.

She argued that the defendant had misapplied the Victims of Modern Slavery – Competent Authority Guidance, particularly the provisions concerning child victims, grooming, vulnerability and credibility. She also challenged the treatment of supporting evidence and the failure to put certain information from Albanian authorities to her before the decision.

The central issues were the appropriate intensity of review, the application of the child-trafficking guidance to an adult claimant, and whether the credibility assessment was lawful and rational.

1. Outcome. The application for judicial review was dismissed. The decision-maker’s conclusion that the claimant was not a victim of trafficking was lawful and open to her on the evidence.
2. The court applied anxious scrutiny, adopting the approach described in R (YH) v Secretary of State for the Home Department [2010] EWCA Civ 116 and explained in R (BG) v Secretary of State for the Home Department [2016] EWHC 786 (Admin). This required consideration of every factor capable of telling in the claimant’s favour, but did not require tortuous reasoning or undue credulity. It was unnecessary to decide whether anxious scrutiny differed materially from ordinary review.
3. The guidance distinguishes the components of child trafficking from the assessment of credibility. A person identified after reaching adulthood may be assessed under child criteria when determining whether trafficking occurred during childhood, so that the means element is irrelevant. That did not require the decision-maker to assess the claimant’s credibility as a child when she was interviewed as an adult. Nor was the decision-maker required to assume grooming, Stockholm syndrome or a progression of control without evidence supporting that case.
4. The decision-maker considered the claimant’s account as a whole and relied on specified inconsistencies and implausibilities. The matters relied upon were not attributable to delayed disclosure or incoherence. The supporting letter from Hestia recorded distress and reluctance to discuss experiences, but did not undermine the decision-maker’s assessment of the detailed account given in interview. The decision-maker therefore gave clear and robust reasons for finding that the conclusive grounds test was not met.
5. The failure to put two matters from the Albanian authorities to the claimant did not justify relief. The departure-date discrepancy was not relied upon, and the discrepancy about living arrangements was not determinative. Removing both matters left ample independent material supporting the decision.

First-instance judicial review proceedings in the Administrative Court. The judgment does not state a prior judicial decision on the merits.