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

When reviewing a negative Conclusive Grounds decision under the National Referral Mechanism, the decision-maker must give high-quality reasons, engage fully with the alleged victim’s case, assess all relevant evidence holistically and take account of every factor supporting it, including expert evidence. A credibility finding must not be made first and then tested against medical evidence. Lies and inconsistencies are not determinative; their significance depends on the whole evidence. A criminal Lucas lies direction is not automatically required. PTSD may have several causes and does not itself establish trafficking. The decision was lawful because the account was assessed cumulatively, including admitted dishonesty and the alternative causes identified by the expert evidence.

The appellant, an Albanian national seeking asylum, claimed to have been trafficked and relied on diagnoses of PTSD, complex PTSD and depressive disorder. The Single Competent Authority made a positive reasonable-grounds decision but later made a negative Conclusive Grounds decision. Mrs Justice Whipple dismissed the judicial-review claim: [2021] EWHC 3034 (Admin).

On appeal, the appellant argued that the decision-maker and the judge had failed to apply anxious scrutiny, had mishandled the expert medical evidence and should have given a Lucas lies direction concerning her admitted dishonesty. The central issues were whether the credibility assessment was lawful and whether the lies and alternative causes of the appellant’s PTSD had been properly evaluated.

The Court of Appeal unanimously dismissed the appeal.

1. Anxious scrutiny. A Conclusive Grounds decision requires high-quality reasoning which engages fully with the putative victim’s case. Judicial review must be conducted with particular care and high intensity, including checking that every factor supporting the case has been properly considered. The guidance was issued under section 49 of the Modern Slavery Act 2015. The Court applied the principles in R(MN) v Secretary of State for the Home Department [2020] EWCA Civ 1746; [2021] 1 WLR 1956.
2. Expert evidence. All relevant evidence, including expert evidence, must form part of the holistic credibility assessment. It is an error to reach a negative credibility assessment and then ask whether expert evidence displaces it, the error identified in Mibanga v Secretary of State for the Home Department [2005] INLR 377. Expert evidence going beyond mere consistency must be taken into account, whereas mere consistency is neutral. The decision-maker’s template wording about professionals having less information than the Home Office was inadequate in isolation, but the decision had accurately summarised and considered the medical evidence and the several possible causes of the appellant’s condition.
3. Lies. In an immigration or trafficking assessment, dishonesty is not determinative of victim status. Its significance must be assessed with all the other evidence. The criminal Lucas lies direction, derived from R v Lucas [1981] QB 720, has a different context because it safeguards a criminal jury against reasoning from lies to guilt despite the prosecution’s burden of proof. The approach in MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49; [2011] 2 All ER 65 was applicable.
4. Application. The appellant’s account was central to the trafficking claim, and the decision-maker was entitled to reject it on the basis of admitted dishonesty after considering the evidence cumulatively. Other features were potentially inconsistent with trafficking but were not treated as individually determinative. The Secretary of State was also entitled to attribute the PTSD to causes other than trafficking where the expert evidence identified multiple causes. No legal error justified quashing the decision.

• Court of Appeal (Civil Division) — Appeal dismissed on 15 July 2022: [2022] EWCA Civ 977.
• Queen’s Bench Division, Administrative Court — Mrs Justice Whipple dismissed the judicial-review claim challenging the negative Conclusive Grounds decision on 15 November 2021: [2021] EWHC 3034 (Admin).