LM (Albania) (R on the application of) v Secretary of State for the Home Department

The Court of Appeal dismissed an appeal against the Administrative Court's refusal to quash a negative Conclusive Grounds decision of the Single Competent Authority under the National Referral Mechanism. The court applied the high standard of reasoning and "anxious scrutiny" required of Conclusive Grounds decisions under the guidance implemented by section 49 of the Modern Slavery Act 2015 and as explained in R(MN). The decision-maker was held to have carried out a holistic assessment of all material, including psychiatric and psychological expert reports, and to have taken account of possible "mitigating circumstances" such as trauma. The appellant's admitted deliberate lies and inconsistencies were central to credibility and, taken together with other evidence and the presence of multiple non‑trafficking causes for her diagnosed PTSD, were a sufficient basis for the negative finding. The Court rejected the submission that a Lucas lies direction was required in this administrative context.

Background and procedural posture:

• The appellant, an Albanian national, sought judicial review to quash a negative Conclusive Grounds decision by the Single Competent Authority (SCA) under the National Referral Mechanism. The SCA had earlier returned a positive Reasonable Grounds decision but, after further investigation, issued a negative Conclusive Grounds decision dated 11 November 2020. The claimant had previously been convicted for perverting the course of justice after admitting she had lied to police about being trafficked in the UK.
• The claim for judicial review was dismissed by Mrs Justice Whipple on 15 November 2021 ([2021] EWHC 3034 (Admin)). The Court of Appeal heard the appellant's appeal on 22 June 2022 and handed down judgment on 15 July 2022.

Nature of the application: The appellant sought relief by way of judicial review to set aside the SCA's negative Conclusive Grounds decision that she was not conclusively a victim of trafficking.

Issues for the court:

1. Whether the SCA and the judge below applied the required "anxious scrutiny" and high quality of reasoning demanded of Conclusive Grounds decisions (as articulated in R(MN)), including proper engagement with expert evidence.
2. Whether the judge should have given herself (or the decision-maker applied) a Lucas lies direction when assessing the appellant's admitted dishonesty and inconsistencies.
3. Whether the Secretary of State was entitled to attribute the appellant's PTSD and other psychiatric diagnoses to causes other than trafficking without additional expert evidence to the contrary.

Material facts and evidence:

• The appellant entered the United Kingdom using false documents in 2017, worked illegally, and was found in a distressed state in Brighton in April 2018 with bound hands. She initially gave a detailed account alleging trafficking and sexual exploitation in the UK but later admitted that her April 2018 account was untrue and pleaded guilty to perverting the course of justice and related offences. A positive Reasonable Grounds decision was later made but the SCA issued a negative Conclusive Grounds decision following further investigation.
• Expert evidence included a psychiatric report by Dr Lisa Wootton diagnosing PTSD/complex PTSD and moderate–severe depressive disorder and expressing that the psychological findings were consistent with the appellant's alleged report of torture, but also listing multiple traumatic events across the appellant's life. A psychologist associated with the Poppy Project (Ms Thullesen) identified trafficking indicators consistent with victims, and a prison clinical psychologist (Dr Dunmore) noted assessment difficulties and inconsistencies.

Court's reasoning and conclusions:

• The Court of Appeal held that the judge had correctly applied the law and examined whether the SCA had given the high standard of reasoning and had taken into account every factor that told in the appellant's favour. The Conclusive Grounds decision was a careful, thorough and holistic assessment of all material, including expert reports, country profiles and investigative material.
• The appellate court accepted that the SCA had not committed the Mibanga error of disregarding expert evidence; the SCA had considered the experts' views but was entitled to conclude that the experts' observations were consistent with multiple traumatic causes and did not alone establish trafficking. The court noted the guidance that expert consistency is not necessarily determinative unless it goes beyond "mere consistency."
• On lies and credibility the court held that lies are not determinative of trafficking status and that the need for a Lucas lies direction arises in a different criminal burden context. Here the SCA had properly assessed the admitted deliberate lies and inconsistencies as central to credibility and was entitled to give them significant weight when viewed together with other evidence.
• Given the cumulative weight of credibility issues, inconsistent accounts, contextual factors that were not readily consistent with trafficking, and the experts' identification of multiple non‑trafficking causes for the appellant's mental health, the court found no legal error and dismissed the appeal.

Wider context: The court emphasised the rarity of allowing judicial review of Conclusive Grounds decisions where the decision-maker has applied anxious scrutiny and engaged appropriately with expert evidence, following the approach in R(MN).

Appeal dismissed. The Court of Appeal held that the judge had correctly applied the applicable legal principles (including the requirement of anxious scrutiny under R(MN) and the duty to consider expert evidence holistically under section 49 of the Modern Slavery Act 2015). The SCA had adequately engaged with the expert reports and other material, and was entitled to conclude that the appellant's admitted lies and the presence of multiple non‑trafficking causes for her psychiatric condition undermined the assertion that she was conclusively a victim of trafficking.

Claim for judicial review issued 12 February 2021; permission granted 15 June 2021; substantive hearing in the Administrative Court on 3 November 2021; judgment of Mrs Justice Whipple dismissing the claim on 15 November 2021 ([2021] EWHC 3034 (Admin)); appeal to the Court of Appeal heard 22 June 2022 and dismissed by this judgment ([2022] EWCA Civ 977, handed down 15 July 2022).