MN v The Secretary of State for the Home Department (Rev 3)

A conclusive grounds decision under the National Referral Mechanism may determine victim status on the balance of probabilities. An adverse decision may end trafficking support. That approach is compatible with article 4 of the ECHR, ECAT and the 2011 Directive.

A competent authority must assess credibility holistically. It must allow relevant expert evidence to inform that assessment. It must not first reject an account and then ask whether expert evidence displaces that conclusion. Expert evidence may support an account even though it cannot decide credibility.

Whether conduct was done for the purpose of exploitation under ECAT requires an ordinary-language and common-sense assessment. A forced marriage is exploitation, but no separate test of immediacy applies.

MN and IXU each challenged a negative conclusive grounds decision made under the National Referral Mechanism. Each had received a positive reasonable grounds decision but was later found, on the balance of probabilities, not to be a victim of trafficking.

MN, an Albanian national, alleged that she had been deceived into travelling to Italy and forced into prostitution. IXU, a Nigerian national, alleged trafficking in Nigeria and the United Kingdom. She also alleged that, as a child, she had been taken away for female genital mutilation in preparation for a forced marriage.

The Administrative Court dismissed both judicial review claims. The appeals raised the legality of the civil standard for conclusive grounds decisions, the treatment of expert evidence, credibility assessment, and, in IXU’s case, the connection required between an act and an intended exploitation.

1. The appeals were allowed in part. The Court rejected the challenge to the balance of probabilities standard. ECAT establishes a single identification process. Reasonable grounds trigger temporary protection and core support pending completion of that process. A negative conclusive grounds decision may therefore end support. Article 4 of the ECHR and article 11 of Directive 2011/36/EU do not require support to continue merely because reasonable grounds remain.

2. A competent authority must assess an applicant’s account on the totality of the evidence. It must not reach a negative credibility conclusion and then ask whether expert evidence displaces it. That is the error identified in Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367.

3. Expert evidence of mere consistency with an account is neutral. But an expert may properly give an opinion that findings, symptoms, presentation or history positively support the account, including an opinion that symptoms are not feigned. Such evidence is not determinative. Its weight depends on the particular report, including other possible causes of the symptoms. Decision-makers must analyse its actual value and feed any relevant conclusions into the overall credibility assessment.

4. The description of matters such as trauma, shame, delay and inconsistency as “mitigating circumstances” was inapt. Credibility simply concerns whether an account is to be believed. Apparent defects and factors capable of explaining them must be considered together in one common-sense assessment.

5. Conclusive grounds decisions affect important rights. They require high-quality, comprehensive reasoning. On judicial review, the court must examine them with particular care and ensure that factors favouring the putative victim have been properly taken into account.

6. MN’s decision was unlawful. The competent authority had effectively discounted relevant expert evidence and accumulated alleged inconsistencies without properly assessing their significance or considering them in light of that evidence. Its decision was quashed and MN’s application was remitted to a different decision-maker.

7. For IXU, forced marriage was accepted to be a form of exploitation under ECAT. Whether taking a child away for FGM was done “for the purpose of” forced marriage required an assessment of the factual connection using ordinary language and common sense. The Court rejected an independent requirement of immediacy. The competent authority had also marginalised relevant expert evidence. Its decision was quashed and remitted to a different decision-maker.

• Court of Appeal (Civil Division): Allowed MN’s appeal on grounds 2–4 and IXU’s appeal on grounds 2–3. Quashed both conclusive grounds decisions and remitted them for fresh determination by different decision-makers: [2020] EWCA Civ 1746.
• Administrative Court: Farbey J dismissed MN’s judicial review claim.
• Administrative Court: Mr Philip Mott QC, sitting as a deputy High Court judge, dismissed IXU’s judicial review claim.