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

A reconsideration of a conclusive grounds trafficking decision must apply the competent authority’s credibility guidance and anxious scrutiny with the same rigour as the original decision. Earlier reasoning may be incorporated by reference only where it clearly substantiates the new decision and addresses the effect of the new material. Trauma and psychiatric evidence capable of explaining inconsistencies must be confronted and reconciled with the credibility assessment. A finding that one part of an account is incredible does not automatically make the entire account incredible. Where the decision-maker’s reasoning fails to show that factors favouring the claimant were considered, the decision is irrational and unlawful. The statutory test for refusing relief on the basis that the outcome would probably have been unchanged requires evidence, not speculation.

The claimant, a Vietnamese national, challenged the Secretary of State’s refusal to reconsider a negative conclusive grounds decision under the national referral mechanism. He relied on a psychiatric report diagnosing PTSD, an expert report concerning Vietnam, and a Rule 35 medical report. Earlier asylum proceedings had rejected aspects of his account, including the alleged £20,000 debt to traffickers.

The central issues were whether the Secretary of State had properly considered the new evidence, applied the Competent Authority Guidance and anxious scrutiny, and whether relief could be refused on the basis that the outcome would probably have been the same.

1. The claim succeeded. The decision dated 9 October 2018 was quashed.
2. The court distinguished between an asylum assessment, which concerns future risk on return, and a trafficking determination, which concerns whether past trafficking has been established on the balance of probabilities. The reconsideration process remained subject to the Competent Authority Guidance and anxious scrutiny. Its informal character did not justify a less rigorous assessment.
3. Previous reasoning could be incorporated by reference if it was clear that the incorporation substantiated the new decision. Whether repetition was necessary depended on the nature of the new material. The decision-maker had to consider what difference that material made to the decision under reconsideration.
4. The October 2018 letter focused mainly on earlier asylum decisions and future risk. It did not engage adequately with the Credibility Guidance, which required trauma and other mitigating circumstances to be considered when assessing inconsistencies. Dr Bose’s evidence supplied a possible explanation for those inconsistencies and included a clinical assessment of psychiatric credibility. The Secretary of State gave no adequate reasons for rejecting or reconciling that evidence.
5. The rejection of the alleged £20,000 debt could damage credibility and meant that the debt did not support the trafficking account. It did not follow that every other aspect of the claimant’s history was incredible. The evidence had to be assessed as a whole.
6. The reasoning therefore amounted to a blanket rejection of credibility, failed to show that factors favouring the claimant had been taken into account, breached the Secretary of State’s policy and was irrational. Section 31(2A) of the Senior Courts Act 1981 did not prevent relief. There was no evidence establishing that a lawful decision would highly likely have produced the same outcome, and more than one outcome was possible.
7. The later decision in R (DS) v Secretary of State for the Home Department [2019] EWHC 3046 (Admin) was consistent with these conclusions. It concerned the gateway for obtaining reconsideration, whereas this case concerned the substantive reconsideration.

• High Court (Administrative Court): permission was granted on 29 March 2019. The claim for judicial review was allowed and the decision dated 9 October 2018 was quashed.
• First-tier Tribunal: earlier asylum appeals had been dismissed, including decisions promulgated on 12 September 2017 and 11 June 2019. Those decisions formed part of the background but did not determine the lawfulness of the later trafficking reconsideration.