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

A Competent Authority deciding whether an adult was trafficked as a child must determine the person’s age at the time of the alleged events on the balance of probabilities, using the totality of the evidence. A formal age assessment is not mandatory where adulthood at entry to the National Referral Mechanism is undisputed. The decision maker must apply anxious scrutiny, consider all relevant evidence, and balance factors supporting and undermining the account. It is unlawful to attach no weight to the claimant’s evidence where independent documents support material parts of it. The trafficking criteria must also be applied rationally: undisputed evidence of transportation cannot be rejected without a reasoned basis.

The claimant, an Indonesian national, challenged the Defendant’s negative Conclusive Grounds decision that she was not a victim of trafficking or modern slavery. She claimed that she had been trafficked for domestic work in Saudi Arabia, Qatar and the United Kingdom and that she had been a child when the relevant events occurred. The central issues were the correct approach to disputed historical age, the treatment of documentary and supporting evidence, and the application of the trafficking criteria. The claim also alleged procedural unfairness, failure to follow policy and irrationality.

1. Claim allowed. The Conclusive Grounds decision of 12 July 2017 was quashed. The matter was remitted to the Defendant for reconsideration and a fresh decision.
2. Where a person is an adult when entering the National Referral Mechanism but claims to have been a child during the alleged trafficking or modern slavery, the Competent Authority must decide whether the person was a child or adult at the relevant time before applying the substantive criteria. The Guidance requires assessment on the balance of probabilities and the totality of the evidence. It does not require a formal age assessment in those circumstances. A formal assessment is directed to cases where the person claims to be a child when referred and is suspected to be an adult (paras 52–69).
3. The decision maker failed to consider a relevant diploma and visa applications, and failed to cross-refer their contents to the other evidence. That omission was fundamental because age determined whether the claimant had to satisfy the “means” criterion and the adverse age finding materially affected the credibility assessment. The error vitiated the decision as a whole (paras 80–91).
4. The decision maker was entitled to identify inconsistencies and to decide what weight should be given to the evidence. However, it was not lawful to attach no weight to the claimant’s evidence when contemporaneous documents independently supported material parts of her account. A lawful credibility assessment required a balanced consideration of positive and negative factors (paras 92–95).
5. The “act” criterion could not rationally be rejected in relation to transportation to the United Kingdom and Qatar on the evidence before the decision maker. The finding concerning Saudi Arabia was also unsustainable in the absence of an express finding that the claimant had not worked there. The remaining complaints, including the absence of an interview and the challenge based on undisclosed documents, failed on the facts. The Defendant had considered the medical and objective evidence, and an interview was not mandatory (paras 96–110).