WEN, R (On the Application Of) v The Secretary of State for the Home Department (Rev1)

At the reasonable-grounds stage of the National Referral Mechanism, the decision maker applies a low threshold: whether there are grounds upon which a reasonable observer could suspect that the person is a victim of trafficking. The existence of grounds for disbelief does not require a negative decision where reasonable grounds for belief also exist.

The decision maker must apply the relevant guidance, assess the act, means and exploitation elements of trafficking, and consider mitigating circumstances such as trauma, delayed disclosure and inconsistent accounts. Apparent consent, freedom of movement and the ability to obtain work do not by themselves answer whether deception, coercion, abuse of vulnerability, sexual exploitation or forced labour is indicated.

The claimant, a Brazilian national detained pending removal, challenged a negative reasonable-grounds decision under the National Referral Mechanism. She alleged that she had been deceived into travelling to the United Kingdom, subjected to psychological control and sexual exploitation, and required to work.

She also challenged decisions concerning her fitness to fly and a later response to further representations. The central issues were whether the trafficking decision applied the Competent Authority Guidance lawfully and fairly, whether the reasoning was rational and sufficiently detailed, and whether the later decisions were unlawful.

1. Ground 3 succeeded. The reasonable-grounds decision was quashed and remitted for reconsideration. The court’s task was supervisory: it was not to decide itself whether the claimant was trafficked, but to determine whether the decision was fair, lawful and based on a rational application of the Guidance.
2. The reasonable-grounds test is a low threshold, expressed as suspicion rather than proof. The existence of evidence undermining the account does not justify a negative decision where there are also reasonable grounds for believing that the person may be a trafficking victim. Full resolution of credibility and competing evidence belongs principally to the conclusive-grounds stage.
3. The decision unlawfully treated inconsistencies and delayed disclosure as effectively determinative. The Guidance required consideration of trauma, fear, mistrust of authorities, cultural or social barriers, mental-health difficulties and other mitigating circumstances. The decision did not meaningfully assess the claimant’s domestic violence history, depression, self-harm risk or possible reasons for delayed disclosure.
4. The decision also misapplied the trafficking definition. The claimant’s willingness to travel and freedom of movement did not dispose of the act or means elements. The material required consideration of transportation, deception, coercion, abuse of vulnerability and the irrelevance of apparent consent where a prohibited means was used. Possible indicators of sexual exploitation were not addressed.
5. The forced-labour issue required analysis of whether the work was performed under the menace of a penalty and therefore was not voluntary. Merely listing factors adverse to credibility was insufficient without explaining how the legal principles applied to the claimant’s evidence.
6. The interview challenge failed. The Guidance did not prohibit interviewing at the reasonable-grounds stage, and conclusive-grounds interview guidance could not simply be transferred to that stage. Although the decision maker should reasonably consider matters such as interviewer gender, the failure to ask about preference was not independently sufficient to quash the decision.
7. The later decision of 17 January 2019 was not unlawful. In the absence of a clear request for reconsideration, it was reasonable to address the representations under Rule 353. The Secretary of State remained the primary decision maker on trafficking; an expert report was not determinative. The fitness-to-fly challenge was academic, although the court considered it and held that reliance on the assessment of a nurse who had examined the claimant was permissible.

The judgment records that on 22 February 2019 Karen Steyn QC, sitting as a Deputy High Court Judge, refused permission on an originally drafted ground concerning removal because the issue had become academic after the removal window lapsed. The present claim was then determined at first instance by the Administrative Court.