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

For trafficking, recruitment, transportation, transfer, harbouring or receipt must be undertaken by specified means for the purpose of exploitation. The exploitation element requires an evidential basis for an intention to exploit, assessed by reference to the statutory definition and the Modern Slavery Guidance as a whole. Financial fraud or extortion does not automatically amount to trafficking. Guidance referring to financial exploitation must be read consistently with the statutory scheme. A decision maker may reasonably distinguish advance-fee fraud, followed by opportunistic extortion, from trafficking where there is no evidence of an intention to exploit the person after recruitment or arrival.

The claimant sought renewal of permission to judicially review the Secretary of State’s reasonable-grounds decision under the Modern Slavery Act 2015. He alleged that he had been induced to pay money for promised employment in the United Kingdom, received no work, and was later threatened and asked for further payments. The decision accepted action and means components of trafficking but found insufficient evidence of exploitation or an intention to exploit.

The renewed application alleged breach of the Modern Slavery Guidance, irrationality and unlawful fettering of discretion in interpreting exploitation.

1. Permission refused. The renewed application disclosed no arguable public law error.
2. The trafficking definition contains three components: a relevant action, a relevant means, and purpose of exploitation. The third component requires consideration of the alleged trafficker’s intention. It is unnecessary to show that exploitation was completed, but the prior conduct must have been undertaken for that purpose.
3. The decision maker reasonably treated the initial payment as advance-fee fraud. The claimant paid money directly following a false promise of employment, but there was no evidence that the sponsor intended financially to exploit him after his arrival. The fact that he was ignored and had to chase the sponsor for work supported that conclusion.
4. The later demand for further money and threats of immigration reporting were reasonably characterised as a separate, opportunistic extortion attempt. They did not establish a pre-formed intention to exploit at the time of the initial deception.
5. The Modern Slavery Guidance had to be read as a whole and consistently with section 3 of the Modern Slavery Act 2015. References to financial exploitation did not convert every fraud or extortion into trafficking where the statutory elements were absent. The decision considered the relevant forms of exploitation and did not unlawfully fetter the Secretary of State’s discretion.
6. The reasoning was rational. The decision considered the claimant’s evidence and the additional material, and it was open to the decision maker to distinguish fraud and extortion from trafficking for the purpose of exploitation.

The parties were directed to draw up an appropriate order, including provisions concerning costs.

1. High Court (Administrative Court): permission had previously been refused on the papers by HHJ Bird, sitting as a High Court Judge. The renewed application was refused by Deputy High Court Judge Karen Ridge.