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

For human trafficking, the relevant acts, means and purpose of exploitation must be considered together. Actual exploitation need not have occurred. The purpose question is assessed using ordinary language and common sense, having regard to the intended scope of the governing Convention. The lapse of time between recruitment and possible exploitation is relevant, but is not a decisive test of immediacy or nexus. Recruitment ordinarily occurs at the start of the employment relationship. A decision-maker may conclude that a person was recruited for ordinary work, rather than for later forced criminality, where the latter intention is speculative and the intervening circumstances support that inference.

The claimant sought judicial review of the Immigration Enforcement Competent Authority’s negative reasonable grounds decision under the National Referral Mechanism. The authority accepted the claimant’s account to the relevant standard and accepted the action and means elements of trafficking, but concluded that he had not been recruited for the purpose of exploitation.

The claimant had worked unpaid on a construction site in Albania and was later beaten and asked to sell drugs. He left before selling drugs. The central issue was whether the authority unlawfully failed to assess whether the original recruitment was for the purpose of later forced criminality.

1. Application refused. The authority had not unlawfully discounted the attempted forced sale of drugs merely because the exploitation had not occurred. It considered whether there had been an intention to subject the claimant to forced labour or forced criminality and concluded, to the reasonable grounds standard, that there had not.
2. Under Council of Europe Convention on Action against Trafficking in Human Beings, trafficking requires the relevant action, means and purpose of exploitation to be present together. The purpose requirement does not require actual exploitation. The court applied the guidance in MN & IXU v Secretary of State for the Home Department [2020] EWCA Civ 1746, [2021] WLR 1956: purpose is assessed by ordinary language and common sense; the passage of time is relevant but cannot be treated as a decisive test of immediacy.
3. The claimant’s proposed continuing meaning of recruitment was rejected. Recruitment means the process of selecting people for work and ordinarily occurs at the start of the employment relationship. The later demand to supply drugs, six months after recruitment, did not make the recruitment act continuing.
4. The authority was entitled to infer that the purpose at recruitment was to offer construction work rather than to groom the claimant for forced criminality. Relevant considerations included the six-month interval, the claimant’s ability to return home each day, and the speculative nature of an inference that the employer had always intended later exploitation.
5. The irrationality arguments went beyond the grounds for which permission had been granted and, in any event, lacked merit. The authority’s decision was neither legally erroneous nor irrational.

This was a first-instance judicial review claim. Permission was granted on the papers on 28 March 2023. The application was refused by the High Court (Administrative Court).