Permission granted in judicial review challenging negative Reasonable Grounds decision in a trafficking claim

17 December 2015

Sir Stephen Silber, sitting as a Judge of the High Court, has granted permission in SF v SSHD [2015] EWHC 2705 (Admin), a judicial review claim challenging a negative Reasonable Grounds decision in a trafficking claim. Garden Court North Chambers’ Lucy Mair represented the Claimant.

The Claimant had been trafficked as a child but the Defendant (SSHD) had not considered her own guidance with regard to child victims. Furthermore, the Defendant’s approach to credibly had not been informed by her own guidance. The judge emphasized the total paucity of any mention of the Defendant’s Modern Slavery Guidance in granting permission and accepted that it was arguable that the Defendant had applied the wrong test at the reasonable grounds stage (“I suspect but cannot prove”). In his judgment the judge held that:  “It is trite law that a failure by a public authority to follow its own established policy can be an error of law without good reason to depart from it (Lumba v Secretary of State (supra)).” [185].

In granting permission the judge also said that the Defendant had failed to show by her reasoning that every factor which tells in favor of the Claimant had been properly taken into account, referring to the principle established by Carnwath LJ in R (YH) v Secretary of State [2010] EWCA Civ 116 [24]. During the course of the permission hearing the judge reiterated the unique nature of the searching and collaborative enquiry that is required by the Defendant when considering claims that a person has been trafficked, as distinct from other areas of fact finding. This is because, as explained in the Explanatory Note to the Trafficking Convention, “Failure to identify a trafficking victim correctly will probably mean that victim’s continuing to be denied his or her fundamental rights …”

The judge also reiterated his finding in SF that the standard of review to be applied by the court in reviewing a trafficking claim was one of “heightened” or “more rigorous” scrutiny.

Lucy was instructed by Mervyn Cross at Duncan Lewis Solicitors.

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