On 26 April 2018, the High Court handed down judgment in R(EL) v Secretary of State for the Home Department [2018] EWHC 968. The Court held that the Secretary of State had correctly applied its Competent Authority Guidance on assessing the credibility of alleged victims of human trafficking, in light of the fact that the Claimant was a child when she began to be sexually exploited.
Author: ukhumantraffickinglaw
Ten Things We Learned from GRETA’s Annual Report Published Today
It’s fascinating to see how countries all over Europe have been implementing the Council of Europe Convention on Action against Trafficking in Human Beings (“the Trafficking Convention”). The ten points below will give you a flavour of what is in the 83-page Report. You can check out the details for yourself by reading GRETA’s Annual Report here.
New case on s. 45 burden of proof will help trafficking victims convicted of criminal offences
The Court of Appeal (Criminal Division) handed down an important judgment on 28 March 2018 concerning the burden of proof in the s. 45 Modern Slavery Act defence: non-prosecution of trafficking victims. This post will explain what the joined appeals in MK v R [2018] EWCA Crim 667 were all about.
New case: Limits on who can request reconsideration of a negative trafficking decision
In a judgment handed down on 28 March 2018, the High Court considered whether the Home Office is entitled to refuse to reconsider a negative trafficking decision when a request for reconsideration is made by someone other than a first responder (OA (Nigeria) v Secretary of State for the Home Department [2018] EWHC 681).
New case: 5 key points to take away from SSHD v MS (Pakistan)
MS, a Pakistani national, claimed that he had been trafficked, having been deceived into thinking he was coming to the UK for education but in fact was employed in a series of Asian food shops. However, the relevant Competent Authority, in charge of deciding whether individuals are trafficking victims, issued a negative trafficking decision stating that there were no reasonable grounds to conclude that MS had been trafficked. That negative trafficking decision came to the attention of the Upper Tribunal during MS’ asylum appeal against the Secretary of State’s decision to remove MS from the UK. In that appeal, the Upper Tribunal “substituted itself” for the Competent Authority (para. 95) and decided that MS had in fact been a victim of trafficking. The Court of Appeal judgment in Secretary of State for the Home Department v MS (Pakistan) [2018] EWCA Civ 594, handed down on 23 March 2018, concerned the legality of the Upper Tribunal’s decision.
Here are five key points to take away from that decision:
New case: Unsuccessful Challenge to Detention by Trafficking Victim Convicted of Cannabis Production
On 23 March 2018, the High Court handed down judgment in BT, R (On the Application Of) v The Secretary of State for the Home Department [2018] EWHC 584 which concerned a Vietnamese national, ‘BT’, trafficked into the UK for the production of cannabis. One of the key issues was how the Court strikes a balance between the public interest in deporting foreign national criminals (enshrined in law at s. 32(4) of the UK Borders Act 2007) and the detainee’s interest in not being subjected to detention where it would seriously harm him.
Upper Tribunal finds insufficient weight given to expert report on trafficking victim
Last month, the Upper Tribunal handed down a judgment concerning the weight to be given to expert reports on human trafficking victims in asylum decisions: Appeal Number PA/06854/2016 (click here for the judgment).
The appeal concerned the Secretary of State’s refusal to grant asylum to J who claimed that he had been trafficked to the UK from China. The key question was whether there was a real risk that J would suffer persecution on return to China. The Upper Tribunal found that the First-tier Tribunal Judge had not given adequate consideration to an expert report that found that J was a victim of trafficking.
Why We Need an Exploitation Offence in the Modern Slavery Act
A government-commissioned review into the Modern Slavery Act recommended reconsideration of the merits of introducing a standalone offence of exploitation; a proposal for such an offence was rejected as the Modern Slavery Bill was going through Parliament. I argue below that introducing a standalone offence of exploitation is necessary and would ensure the fair and accurate labelling of immoral and harmful conduct.
New Case: Should Former Sex Trafficking Victims Be Required to Disclose Spent Convictions?
The High Court has held that it is unlawful to require those who have multiple spent convictions to disclose them when seeking certain employment. In a judgment handed down yesterday in QSA & Ors, R (On the Application Of) v Secretary of State for the Home Department & Anor [2018] EWHC 407 (read full judgment here), three former prostitutes, who had allegedly been forced into the sex trade, successfully argued that the rule requiring disclosure of multiple spent convictions operated in an indiscriminate and arbitrary manner and was not necessary to achieve the aim of protecting the vulnerable adults and children for whom the claimants were seeking to work (paragraph 72 of the judgment). The High Court considered itself bound by the Court of Appeal in R (on the application of P and others) v Secretary of State for the Home Department [2017] EWCA Civ 321 (hereafter, ‘P’; see judgment here) which held that the multiple conviction rule unlawfully disregarded factors relevant to the aim of safeguarding children and vulnerable adults, such as the nature of the offences committed, the time which had elapsed since the offences took place or the relevance of the offences to the employment sought.
Discretionary Leave to Remain: What Do Trafficking Victims Have to Show?
In the recent case of PK(Ghana) v Secretary of State for the Home Department [2018] EWCA Civ 98 (judgment here), the Court of Appeal had to decide whether policy guidance published by the Secretary of State, on granting discretionary leave to remain for victims of trafficking, were lawful. The Court held that the policy guidance was unlawful, having regard to the 2005 Trafficking Convention.
UK Human Trafficking Law Blog 